In recent discussions of whether President Obama should pardon Edward Snowden, it has gone unnoticed that a presidential pardon was once granted to a person who committed an unauthorized disclosure of classified information to the press, effectively erasing his crime.

In 1985, Samuel L. Morison, a U.S. Navy intelligence analyst, was convicted under the Espionage Act statutes of providing classified intelligence satellite photographs of a Soviet aircraft carrier to Jane’s Defence Weekly. He was sentenced to two years in prison, of which he served eight months.

But in January 2001, President Clinton issued “a full and unconditional pardon” to Morison.

The fact that a leaker received a pardon is an indication that the unauthorized disclosure of classified information is not so intrinsically heinous a crime as to be categorically beyond official forgiveness. Since one president pardoned a leaker, it is certainly within the realm of possibility that another president might choose to do the same.

In several respects, however, the Morison case differs significantly from the circumstances of the Snowden case.

For one thing, Morison submitted to judicial process (after his arrest, anyway), was convicted, and served his sentence. Snowden, on the other hand, is a fugitive and has neither been tried nor convicted of a crime.

Morison did actively seek a pardon, but he did so through formal petition procedures rather than through a grass roots campaign or an appeal to newspaper editorial boards, opinion leaders or celebrities.

Morison had an influential champion in Senator Daniel P. Moynihan, who wrote privately to the President on his behalf in September 1998, more than two years before the pardon was ultimately granted.

Interestingly, Moynihan did not suggest that Morison was an exemplary character or someone who was personally deserving of presidential intervention. (Morison went on to plead guilty to an unrelated crime years later.) Instead, he argued that the use of the Espionage Act as a means to regulate the press was improper and unfair.

“Press censorship has been proposed since [the enactment of the Espionage Act in 1917], but never adopted. Ironically, we now have in Samuel Loring Morison a man who has been convicted for leaking information, while so many real spies are discovered but never prosecuted,” Moynihan wrote.

“I would hope that in your review of Mr. Morison’s application for a pardon you reflect not simply on the relevant law, but the erratic application of that law and the anomaly of this singular conviction in eighty-one years,” he wrote.

Moynihan’s addressed his argument directly to the President, who has exclusive authority to issue a pardon, rather than as part of a public campaign. His letter was released under the Freedom of Information Act after the pardon was granted.

And because Morison’s advocacy of a pardon was conducted quietly, it did not elicit public opposition from intelligence agency officials or their supporters, though President Clinton did encounter significant internal resistance.

“We said we were obviously opposed — it was a vigorous ‘Hell, no’,” one senior intelligence official told the Washington Post. “We think giving classified information to people who are unauthorized to receive it is a bad thing to do and giving pardons to people who are convicted of doing that sends the wrong signal to people who are currently entrusted with classified information.” (“Clinton Ignored CIA in Pardoning Intelligence Analyst” by Vernon Loeb, February 17, 2001)

Remarkably, President Clinton disregarded such complaints from within his Administration and pardoned Samuel Morison, even though there was little or nothing to be gained politically by doing so.

In short, the Morison case represents a template for winning a presidential pardon that other convicted leakers might profitably study and attempt to replicate. But advocates of a pardon for Edward Snowden, and Snowden himself, have necessarily chosen a different path.

The Department of Justice has streamlined its national security classification activities over the last several years, resulting in the production of a diminishing number of secrets, according to a new report from the Department’s Inspector General.

Specifically, the IG found:

*     the Department reduced the number of Original Classification Authorities (i.e. officials who are authorized to generate newly classified information) from 64 in FY 2013 to 46 in FY 2016.

*     the Department reduced its original classification decisions (new secrets) from 4,455 in FY 2013 down to zero in FY 2015.

*     the number of derivative classification decisions (involving incorporation of previously classified information into new documents) also declined from 8.4 million in FY 2012 down to 7.7 million in FY 2015.

In short, there has been “a marked shift in classification behavior throughout DOJ,” the IG report said.

See Follow-up Audit of the DOJ’s Implementation of and Compliance with Certain Classification Requirements, second audit under the Reducing Over-Classification Act of 2010, September 2016.

(The IG report also identified some areas for improvement, including more appropriate use of the ORCON dissemination marking, and other classification practices, especially at the Drug Enforcement Administration.)

The reduced scope of national security secrecy at the Justice Department has been paralleled throughout much of the executive branch in recent years, such that the production of new secrets in the last two years is at the lowest levels reported in several decades. (“Number of New Secrets in 2015 Near Historic Low,” Secrecy News, July 29, 2016). By this measure, at least, one might even conclude that the Obama Administration is the most transparent ever.

While the systemic reduction of national security secrecy does not resolve all (or any) remaining disputes over secrecy policy, it does help to clarify them and perhaps to render them somewhat more tractable.

“There’s more work to be done here [on revising classification policy],” said Director of National Intelligence James Clapper last week at a forum of the Intelligence and National Security Alliance. “And at some point, there will need to be, I believe, a fairly fundamental change in the classification system, not just in the I.C. but across the government.”

“The basic structure [of the classification system] is of course born out of a hard copy paper era and the rules we have today really aren’t compatible with the technology and the way we conduct our business. So at some point, I think there’ll be ‐‐ have to be a fundamental change. In the meantime, I’m kind of [doing], you know, what I can within the confines of the current system,” DNI Clapper said.

The production of new national security secrets dropped precipitously in the last five years and remained at historically low levels last year, according to a new annual report released today by the Information Security Oversight Office.

There were 53,425 new secrets (“original classification decisions”) created by executive branch agencies in FY 2015. Though this represents a 14% increase from the all-time low achieved in FY 2014, it is still the second lowest number of original classification actions ever reported. Ten years earlier (2005), by contrast, there were more than 258,000 new secrets.

The new data appear to confirm that the national security classification system is undergoing a slow-motion process of transformation, involving continuing incremental reductions in classification activity and gradually increased disclosure.

Thus, the number of officials who are authorized to generate new national security secrets (“original classification authorities”) dropped to an all-time reported low of 2,199, the new ISOO report said.

Meanwhile, “derivative classification activity,” or the incorporation of existing secrets into new forms or products, dropped by 32%.

The number of pages declassified increased by 30% over the year before.

Of particular interest, the number of internal ”classification challenges” — in which government employees who are authorized holders of classified information themselves challenged the classification status or level of the information — reached an all-time high of 952 formal challenges in FY 2015. Of those, 411 (or 43%) were granted in whole or in part, ISOO reported. This internal challenge procedure has the potential to create an entire new dynamic of self-correction within the classification system.

See 2015 Report to the President, Information Security Oversight Office, transmitted by ISOO Acting Director William A. Cira, July 15, 2016.

Not all is well, however.

The cost of the national security secrecy system reached an all-time high of $17.44 billion in FY 2015, up 8% from the year before — a rate of growth that seems hard to sustain.

The average number of days to respond to a mandatory declassification request increased to 270 days, and the number of MDR requests that have gone unresolved for more than a year increased significantly to more than 14,000.

The use of the “declassify in ten years or less” instruction on newly classified documents dropped sharply down to 15%, making it harder to implement automatic declassification procedures in the future.

Overall, however, the good news — a reduced scope for secrecy and increased disclosure activity — seems to dominate. The sustained reductions in new classification activity are likely to be extended further with the implementation of the second Fundamental Classification Guidance Review that is now underway.

Interestingly, the impressive changes in national security classification policy over the past several years have occurred primarily at the agency level. The White House seems barely cognizant of those changes, and did not mention them at all in a recent description of the Obama Administration’s efforts “to drive openness and transparency in government.”

The Fundamental Classification Guidance Review (FCGR) that was launched by President Obama’s 2009 executive order 13526 would be written into statute by the Senate Select Committee on Intelligence in its version of the FY intelligence authorization act (S. 3017), released this week.

The FCGR has become the primary mechanism for systematically updating agency classification rules and deleting obsolete secrecy requirements. Performed every five years, it entails the review of thousands of individual classification guides. After the first FCGR in 2012, hundreds of such guides were eliminated.

“A reasonable outcome of the review overall, though not necessarily in the case of each program or guide, is to expect a reduction in classification activity across government,” wrote William Cira, acting director of the Information Security Oversight Office, in a March 17 memo to agencies initiating the second FCGR, which is to conclude by June 2017.

The FCGR can advance “our shared goals for greater openness and reduced classification activity while protecting legitimate national security interests,” wrote DNI James Clapper in a March 23 addendum, embracing the FCGR and adding some new requirements to it.

The Senate bill (section 809) does not modify the existing FCGR process, but would enshrine it in statute.

The new bill includes several other reporting requirements that appear uncommonly assertive, if not intrusive. For example, the Committee would expect the Privacy and Civil Liberties Oversight Board to keep it informed of all the Board’s activities, “including any significant anticipated activities.” The Committee would require submission of copies of all memoranda of understanding between U.S. intelligence agencies. And the Committee would require notification of all classified and unclassified presidential directives to intelligence agencies, and their implementation.

In short, the bill would reset the terms of the congressional intelligence oversight relationship, seemingly dispensing with comity and imposing mandatory disclosure to Congress of various categories of records. Executive branch resistance may be anticipated.

For the first time in living memory, the SSCI bill was reported out of Committee on June 6 without a written report to publicly explain and expand upon its provisions. (Update: The Committee report on the bill was published on June 15.) It did, however, include a classified annex.

The forthcoming National Military Strategy, unlike previous versions of the Strategy, should be a classified document, the House Armed Services Committee (HASC) said in its markup of the FY2017 defense authorization bill.

Paradoxically, the Committee said that classifying the Strategy would enable increased disclosure of information– to the Committee, not to the public.

“The committee understands the importance of the Department publicly communicating its defense strategy to the American people, Congress, other U.S. Government agencies, and international partners and allies. However, the committee also recognizes that the classified assumptions and analysis underpinning the strategy, as well as the subsequent programming, budgeting, and contingency planning guidance that implement the strategy, are also important oversight tools for the committee and help to frame the annual budget request.” (Section 904)

“The committee believes that the NMS [National Military Strategy] should be re-focused to provide a strategic framework for the development of operational and contingency plans by the combatant commands, and to provide joint force and joint capability development guidance to guide resource investments by the military services.” (Section 905)

“To provide such guidance, the committee believes that the NMS should be a classified document,” the Committee markup said.

The Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, recently stated that the next National Military Strategy will in fact be classified, as the House Armed Services Committee desires.

The House Committee did not adopt a DoD proposal for a new exemption from the Freedom of Information Act for certain military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. The proposed FOIA exemption was excluded from the pending bill without comment.

Recent DoD policy and doctrinal publications of interest to some include the following.

Management of DoD Irregular Warfare (IW) and Security Force Assistance (SFA) Capabilities, DoD Instruction 3000.11, May 3, 2016

DoD Nuclear Weapons Personnel Reliability Assurance, DoD Instruction 5210.42, April 27, 2016

DoD Identity Matching Engine for Security and Analysis (IMESA) Access to Criminal Justice Information (CJI) and Terrorist Screening Databases (TSDB), DoD Instruction 5525.19, May 4, 2016

Department of the Army Polygraph Activities, Army Regulation 195-6, April 21, 2016

Declassification of national security information should be pursued on a par with classification, according to a Department of Defense directive that was reissued yesterday.

“Declassification of information will receive equal attention as the classification of information so that information remains classified only as long as required by national security considerations,” said DoD Instruction 5200.01, dated April 21 and signed by Marcel Lettre, the Under Secretary of Defense for Intelligence.

This seems commendable as an aspirational goal, but it is hard to consider it an accurate description of existing DoD policy. (The “equal attention” language has been in force since 2008, when it appeared in a prior iteration of the Instruction.)

Nor is it clear what DoD means by “equal attention” in this context. Equal resources devoted to classification- and declassification-related activities? Surely not. Equal numbers of personnel engaged in classification and declassification? No. Equivalent quantities of records being classified and declassified? Also no.

Still, in a rules-based bureaucracy like the Pentagon, a directive from the Under Secretary of Defense has some intrinsic weight and cannot be entirely dismissed.

It is also noteworthy that the Instruction goes beyond requiring some sort of equilibrium between classification and declassification and calls for an actual reduction in the amount of classified material: “The volume of classified national security information and CUI [controlled unclassified information], in whatever format or media, will be reduced to the minimum necessary to meet operational requirements.”

In a new provision, the Instruction emphasizes the need to address unauthorized disclosures of classified information:

“Commanders and supervisors at all levels must consider and, at their discretion, take appropriate administrative, judicial, contractual, or other corrective/disciplinary action to address negligent discharges of classified information commensurate with the seriousness of the security violation.”

A “negligent discharge” sounds like something that is frowned upon in the Book of Leviticus. But it is actually an officially-sanctioned DoD term for certain types of unauthorized disclosures. An August 14, 2014 memorandum from the Deputy Secretary of Defense explains its origin:

“A negligent spillage or unauthorized disclosure of classified information is categorized as a Negligent Discharge of Classified Information (NDCI), which is based on the familiar firearms term ‘Negligent Discharge,’ to connote its seriousness.”

In a number of national security policy areas, there is a long-term trend in favor of greater transparency and disclosure. For example, the U.S. Army openly published a manual last week on Techniques for Information Collection During Operations Among Populations (ATP 3-55.4). It supersedes and replaces a previous publication from 2007 (FM 2-91.6) that was for restricted distribution and was marked For Official Use Only.

But in some other areas, the arrow of transparency is pointed backwards and previously unclassified categories of records are becoming newly restricted or classified.

That appears to be the case with The National Military Strategy of the United States of America. It was publicly released as an unclassified document in 2015, but the forthcoming edition that is to be completed by the end of next year will be classified.

“The [next] national military strategy will be a classified document,” said Marine Gen. Joseph Dunford, chairman of the Joint Chiefs of Staff, in a March 29 speech at the Center for Strategic and International Studies.

He acknowledged that up to now the National Military Strategy was “an unclassified document that has historically, you know, been written for the public.” But the next Strategy will not be made public, although “we will certainly articulate to the public the guts of a national military strategy,” he said.

He did not elaborate on the rationale for classification of the hitherto unclassified document, except to say that “in my mind, what the national military strategy ought to do is drive the development of our operation[al] plans. And more importantly, drive the development of viable options that we would need in a crisis [or] contingency.” His speech was reported in Defense News (April 5) and the US Naval Institute News (March 29).

The Congressional Research Service said “it can be assumed” that Special Operations Forces “will figure prominently in DOD’s new classified military strategy document.” But CRS warned that “a high or increased level of U.S. SOF involvement in the nation’s new classified military strategy could come with a price…. there could be a tendency to assign them an inordinate amount of responsibility under this new strategic construct.” See U.S. Special Operations Forces (SOF): Background and Issues for Congress, updated April 8, 2016.

Director of National Intelligence James R. Clapper threw his weight behind the upcoming Fundamental Classification Guidance Review (FCGR), which requires executive branch agencies to review all of their classification guidance and to eliminate obsolete secrecy requirements every five years. (On the FCGR, see “Secrecy System to Undergo ‘Thoughtful Scrutiny’,” Secrecy News, March 28).

In an extraordinary memorandum sent to directors of five other intelligence agencies (CIA, DIA, NGA, NSA, and NRO), Director Clapper told them to seize the opportunity to overhaul current classification policy.

“This periodic review provides an ideal platform for the Intelligence Community (IC), as stewards of the nation’s most sensitive information, to take a leading role in reducing targeted classification activities that could extend to the larger Federal government,” Clapper wrote in his March 23 memo.

Ordinarily, the nuts and bolts of the classification system would be beneath the concern of senior agency officials. But DNI Clapper’s intervention changes that presumption. In effect, the Clapper memo focuses attention on what would otherwise be a routine mid-level bureaucratic function and elevates it to a senior-level imperative.

“I am requesting your personal involvement,” he wrote, instructing the intelligence agency directors to perform several additional steps above and beyond what the Fundamental Classification Guidance Review already requires.

Clapper asked for feasibility studies on reducing the number of IC Original Classification Authorities, on the utility of an IC-wide classification guide, on the elimination of the Confidential classification in the IC, and on a new initiative to promote discretionary declassification actions.

“Please comment on what would be required to implement a proactive discretionary declassification program distinct from the systematic, automatic, and mandatory declassification review programs” that already exist, the DNI wrote.

The history of secrecy reform in the U.S. government demonstrates that it is most effective — or that it is only effective — when it is driven by senior agency leadership. Not since Secretary of Energy Hazel O’Leary’s “openness initiative” in the 1990s has an agency head endorsed secrecy reform with the specificity and authority expressed by DNI Clapper.

“I believe your efforts will serve as a significant step forward in furthering our shared goals for greater openness and reduced classification activity while protecting legitimate national security interests,” he wrote to the intelligence agency directors.

The Obama Administration has begun a systematic examination of its national security classification policies, known as the Fundamental Classification Guidance Review (FCGR), in an effort to eliminate obsolete classification requirements and to reduce national security secrecy.

“The goal of the FCGR is to ensure agency classification guidance authorizes classification only in those specific instances necessary to protect national security,” wrote William A. Cira, Acting Director of the Information Security Oversight Office, in a March 17 memorandum to executive branch officials.

“A reasonable outcome of the review overall, though not necessarily in the case of each program or guide, is to expect a reduction in classification activity across government,” he wrote.

Indeed, the first FCGR that was conducted in 2010-12 led to the elimination of “approximately 20% of DoD’s non-compartmented SCGs [security classification guides],” according to a Department of Defense report, thereby removing them as authority for further classification.

And the first Review also appears to have contributed to a historic reduction in reported original classification activity (i.e. the creation of new national security secrets), which reached a record low in 2014.

Now, five years after the first Review, the exercise will be repeated. “The scope of this Review needs to be systematic, comprehensive and conducted with thoughtful scrutiny involving detailed data analysis,” Mr. Cira wrote in his memo to executive branch agencies.

Even under the best of circumstances, agency classification guidance tends to become stale over time. The threat environment changes, policy deliberations or international relations demand fuller disclosure, information leaks or documents are declassified in response to FOIA requests, congressional direction, or historical declassification programs. Yet too often, the guidance itself remains static and unresponsive to changes in the external environment.

Faced with this growing disconnect between a realistic threat appraisal and the information security response, the Fundamental Classification Guidance Review represents the secrecy system’s own attempt at self-correction.

*

The FCGR was inspired by the Department of Energy Fundamental Classification Policy Review that was initiated by then-Secretary of Energy Hazel O’Leary in the mid-1990s, and which had notable success in updating DoE’s classification system. Following a year of deliberations, the DoE reviewers concluded that hundreds of categories of classified information should be declassified, and most of them were. (Some declassification actions proposed by the DoE FCPR — such as those involving historical nuclear weapons locations — were blocked at the time by the Department of Defense.)

“Perhaps the most remarkable feature of this exercise was that it mobilized the DoE bureaucracy itself as an agent of secrecy reform,” I suggested in a 2009 paper on Reducing Government Secrecy: Finding What Works that advocated broader application of this approach.

With the cooperation of William H. Leary at the National Security Council, a requirement to perform a Fundamental Classification Guidance Review throughout the executive branch every five years was incorporated in President Obama’s Executive Order 13526 (section 1.9) in December 2009. Over the coming year, its efficacy will be tested for a second time.

Mr. Cira’s memorandum directed agencies to “obtain the broadest possible range of perspectives” in their review of current classification guidance. He added significantly that “It is not sufficient to have a review conducted only by the pertinent original classification authority.”

But while the DoE Fundamental Review under Hazel O’Leary allowed for public input and feedback at the beginning and the end of the process, the FCGR does not explicitly provide for any public participation in the Review.

The “existence of the Office of the Director of National Intelligence (ODNI)” is Unclassified. So is “the fact that ODNI Headquarters is located within the Liberty Crossing Compound in the Tyson’s Corner Area of Virginia.”

However, “the names and abbreviations of ODNI locations in the Washington Metropolitan Area, both overt and covert” are classified Secret.

These determinations and many others of interest are compiled in a newly released ODNI Classification Guide, Version 2.1, September 30, 2014. The declassified Classification Guide was released by ODNI with limited redactions in response to a Freedom of Information Act request filed by Stephen Revilak.

“The Guide implements ODNI classification policy and procedures for the use and dissemination of ODNI national security information,” the document states.

It covers a wide range of intelligence policy, technology and operational areas involving ODNI that are potentially subject to classification. (Unfortunately, portions of the document released by ODNI are poorly scanned and several pages are cut off at the bottom. Hopefully, a corrected version will soon follow.) [Now fixed.]

“The absence of an item in the Guide does not imply that it is Unclassified,” the reader is cautioned.

Moreover, “The fact that some ODNI information is marked unclassified does not authorize public release,” the Guide states.

The government is looking for a person to oversee, and perhaps sometimes to overrule, classification decisions made throughout the Executive Branch.

A job opening for the position of Director of the Information Security Oversight Office (ISOO) was announced in USA Jobs last week.

The ISOO director is appointed by the Archivist of the United States, since ISOO is housed at the National Archives. But ISOO takes policy direction from the National Security Council, and the director’s authority over classification and declassification policy extends throughout the executive branch.  The previous ISOO director, John P. Fitzpatrick, left for the National Security Council in January.

The ISOO director is endowed with some remarkable powers. “If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification,” according to executive order 13526. Though this power has mostly been held in reserve, it is backed by presidential authority and retains its potency.

The ISOO director is also obliged by executive order to “consider and take action on complaints and suggestions from persons within or outside the Government with respect to the administration of the program established under this order.”

As a result, the ISOO directors have been the most publicly accessible agency heads anywhere in government. Each of them — Mr. Fitzpatrick (2011-15), Jay Bosanko (2008-2011), Bill Leonard (2002-2008), and Steve Garfinkel (1980-2002) — has in his own distinctive way been a dedicated public servant and has willingly engaged with critics, reporters and members of the general public. (The first ISOO director, former congressman Michael Blouin, did not leave much of a visible record in that position.)

But of course, classification policy remains in significant disarray, even within the government, and is a subject of almost daily public controversy. So the position of ISOO director is potentially even more important than ever before, and the next ISOO director could play a leading role in reconciling competing interests in secrecy and disclosure.

Applications for ISOO director are being accepted until March 28. A Top Secret/SCI clearance is needed. Senate confirmation is not.

The Department of Energy last month issued new guidance on the conduct of classified scientific research involving human subjects.

While all human subject research is governed by federal regulations, the new DOE policy imposes several additional requirements whenever such research is to be performed on a classified basis.

For example, the proposed classified research must be reviewed and approved in advance by an Institutional Review Board, and the Board must include a non-scientist member and a member who is not a governmental employee (though he or she must hold a security clearance for this purpose). Also, the normal requirement for informed consent by the human subject cannot be waived.

See Protection of Human Subjects in Classified Research, DOE Notice N 443.1, approved January 21, 2016.

The nature of any such classified human subject research was not described. Speculatively, it might include certain types of research related to polygraph testing or other deception detection techniques. In the past, the Atomic Energy Commission notoriously carried out radiation experiments on unwitting human subjects, and the Central Intelligence Agency conducted behavior modification experiments involving drugs and other stimuli.

It seems that DOE today does little classified human subject research at its own initiative. Rather, “Almost all of the classified [DOE] human subjects research is done on behalf of other Federal sponsors under full cost recovery,” according to a related 2015 DOE memorandum.

The new DOE guidance was prepared after Department attorneys determined last year that a 1997 policy issued by President Bill Clinton was still in effect and applicable to DOE and its contractors. See Strengthened Protections for Human Subjects of Classified Research, March 27, 1997.

Department of Defense policy on classified research involving human subjects is set forth in Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research, DoD Instruction 3216.02, November 8, 2011.

Of possible related interest, the National Declassification Center announced today that 37 cubic feet of classified subject files from the Director of the Office of Science and Technology Policy (OSTP) had been declassified and made available to researchers.