IC Inspector General Finds No Overclassification

“We do overclassify,” Director of National Intelligence James R. Clapper, admitted at his 2010 confirmation hearing. It’s a theme he has reiterated on a number of occasions on which he has spoken of the need for increased transparency in intelligence.

So it comes as a surprise and a disappointment that a new study of the subject from the Intelligence Community Inspector General failed to identify a single case of unnecessary or inappropriate classification.

“IC IG found no instances where classification was used to conceal violation of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency; restrain competition; or prevent or delay the release of information not requiring protection in the interest of national security,” the December 2014 report said.

When it comes to overclassification, ODNI is far from the worst offender. But the IC IG report purports to address classification trends across the intelligence community. And its conclusions are hard to reconcile with the public record, to say the least.

Thus, at the same time that the Inspector General was finding no use of classification to prevent or delay the release of information not requiring protection, the release of the Senate Intelligence Committee report on CIA interrogation practices was being hamstrung and delayed for months or years by dubious, inconsistent classification claims.

“Members of the Committee have found the declassification process to be slow and disjointed, even for information that Congress has identified as being of high public interest,” Sen. Dianne Feinstein wrote to the President last month.

Today the New York Times reported on a 2012 report on intelligence surveillance practices that had been withheld in its entirety until it was partially released in response to a lawsuit brought by the Times. Numerous other examples of the misapplication of classification authority could be cited. Yet all of them were somehow missed or ignored by the IC Inspector General.

Meanwhile, some senior officials in the intelligence community are rethinking current classification practices and policies because they have concluded, contrary to the thrust of the new IG report, that the status quo is unsatisfactory.

“Going forward, I believe that the Intelligence Community is going to need to be much more forward-leaning in what we tell the American people about what we do,” said ODNI General Counsel Robert S. Litt in a public speech last year. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected.”

Size of U.S. Nuclear Arsenal Remains Classified

The U.S. government will not categorically declassify the number of weapons in the U.S. nuclear arsenal once and for all, but it will consider declassification of the size of the prior year’s arsenal on a case by case basis, the Department of Energy said last week.

In May 2010, the Obama Administration declassified the fact that there were 5,113 warheads in the U.S. arsenal as of September 2009. It was the first time in the nuclear age that the current size of the U.S. arsenal (or any nation’s arsenal) was officially disclosed.

Last year, the numbers were updated through September 2013, when there were a reported 4,804 warheads.

Why not make such disclosures routinely and as a matter of course? Last May, the Federation of American Scientists presented a proposal to that effect to the joint DOE/DOD Formerly Restricted Data (FRD) Declassification Working Group (DWG). Officials rejected the idea.

“The FRD DWG has determined that it cannot agree to your request at this time,” wrote Andrew P. Weston-Dawkes, the Director of the DOE Office of Classification in a December 30, 2014 letter.

Instead, “any public request for stockpile and dismantlement numbers beyond September 30, 2013, should be made as a separate declassification request for the prior fiscal year,” he wrote. “Public requests for this information will not be considered for future out-years.”

Accordingly, we submitted a request this week for declassification of the stockpile and dismantlement figures as of the end of fiscal year 2014 (i.e., September 30, 2014).

“As a matter of principle, information should remain classified only when doing so serves a valid and compelling national security purpose. We believe that continued classification of the size of the FY 2014 nuclear stockpile does not meet that criterion,” the FAS request said.

In the absence of officially declassified stockpile numbers, it is nevertheless possible for diligent students of the subject to reliably assess the size of the nuclear arsenal.

In February 2009, prior to the declassification of the 2009 stockpile figure of 5,113 warheads, Hans Kristensen and Robert S. Norris of FAS estimated the number to be 5,200 warheads, an impressively close approximation. The estimate was published in their Nuclear Notebook column, which monitors nuclear arsenals worldwide based on open sources, and which regularly appears in the Bulletin of the Atomic Scientists.

Norris and Kristensen reflect on the origins and the purposes of the Nuclear Notebook in the latest issue of the Bulletin of the Atomic Scientists. See “Counting Nuclear Warheads in the Public Interest,” January 2015.

Report on Disclosures to the Media is Classified

A report to Congress on authorized disclosures of classified intelligence to the media — not unauthorized disclosures — is classified and is exempt from disclosure under the Freedom of Information Act, the National Security Agency said.

The notion of an authorized disclosure of classified information is close to being a contradiction in terms. If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified? And yet, it seems that there is such a thing.

Confronted by a pressing question from a reporter on a classified matter, an official might opt to acknowledge or disclose classified information in response, without necessarily intending to broadcast that information to everyone. In such cases, the information might be disclosed without being declassified, especially if it is already known to the reporter through other channels.

In the Intelligence Authorization Act for FY 2013 (sec. 504), Congress directed that “In the event of an authorized disclosure of national intelligence” to the media, the government official responsible for authorizing the disclosure shall notify Congress in a timely fashion whenever the intelligence disclosed is classified (or declassified for the purpose of the disclosure).

The purpose of that requirement was to ensure that the congressional intelligence committees are made aware of authorized disclosures to the press “so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks’,” according to the Senate report on the FY2013 intelligence bill.

So what disclosures of classified intelligence to the media were approved by government officials and reported to Congress, we asked earlier this year? The National Security Agency refuses to disclose those disclosures.

“The document responsive to your request has been reviewed by this Agency as required by the FOIA and has been found to be currently and properly classified in accordance with Executive Order 13526,” according to an October 2 letter signed by retiring NSA FOIA chief Pamela N. Phillips. “The document is classified because its disclosure could reasonably be expected to cause exceptionally grave damage to the national security.”

We appealed the denial.

“It is well established that information, including classified information, that has been publicly disclosed on an authorized basis loses its exemption from disclosure under FOIA,” the FAS appeal letter said.

“Since the requested document addresses ‘authorized public disclosures,’ the substance of those authorized disclosures may no longer be withheld.”

Energy Dept to Review Classification Standards for Clarity

The Department of Energy will review its classification standards to improve their clarity and to eliminate possible ambiguities, the Administrator of the National Nuclear Security Administration told the Federation of American Scientists this week.

The issue arose in response to the case of James Doyle, a Los Alamos political scientist who published an article on nuclear weapons policy that was initially cleared for publication, but then was said to contain classified information. Doyle’s employment at Los Alamos was later terminated in what was perceived by some to be an act of retaliation. (See Nuclear weapons lab employee fired after publishing scathing critique of the arms race by Douglas Birch, Center for Public Integrity, July 31, 2014.)

“It should not be possible for two reviewers to reach opposing conclusions as to whether a manuscript contains classified information or not,” wrote FAS President Charles D. Ferguson in an August 21 letter to Energy Secretary Ernest Moniz. “But that is apparently what happened” in the Doyle case.

“Accordingly, we urge you to direct that the relevant classification guidance be reviewed and clarified to eliminate all potential ambiguity of the sort that was on display here,” the FAS letter said.

“That is a worthwhile and welcome suggestion,” replied NNSA Administrator Frank G. Klotz on September 15, “and we will undertake such a review as well.”

“The Department of Energy fully subscribes to the principle and importance of academic freedom at our laboratories, and will not tolerate retaliation against nor dismissal of employees or contractors based on the opinions they express in scholarly publications and presentations.”

“Without commenting on the particulars of Mr. Doyle’s case, I have asked the Department’s Inspector General to examine whether Mr. Doyle’s termination resulted in whole or in part from the publication of an article he authored,” Gen. Klotz wrote.

(See related stories in The Daily Beast, Albuquerque Journal.)