Executive branch agencies often classify information inconsistently or unnecessarily. But when challenged, they will sometimes modify their practices.

These elementary but important facts were illustrated recently by Justice Department Inspector General Glenn A. Fine, who described the process by which his office’s investigative reports are reviewed by agency officials prior to release.

“We have seen a lot of times where [agency officials] said, well, that is too sensitive, that is classified, and then we will look and in another forum they have publicly released it,” Mr. Fine said at a recent congressional hearing (pdf, at pp. 28-29).

“I have been in situations where the FBI told me you can’t say that, that is classified. I said okay. And then a week later, an FBI employee will come to [to Congress] and say the same thing. And I say to myself why can’t we say it if they can?”

“A lot of times FBI will give a report to one person and they will say this is classified, and then the FBI will give it to another person and different amounts are classified,” Mr. Fine said. “It is not a precise science.”

“I have to say, this is not just restricted to the Department of Justice,” concurred Rep. William D. Delahunt, “it is throughout the executive branch…. I have seen what you just articulated happen time and time again.”

“It is my own belief that the classification process has become a tool, if you will, for the avoidance of embarrassment,” the Congressman said.

The good news is that, at least at the Justice Department, the Inspector General does not simply yield to the whims of the classifiers, but insists on a sensible rationale for secrecy.

“We push for explanations to make sure that it [classification] is not being used as a way to avoid embarrassment,” Mr. Fine said. “And I think generally, in our case, we have been pretty successful.”

The relative success of Mr. Fine’s office in limiting classification of Inspector General reports points to an untapped opportunity for curtailing overclassification more broadly. That is, agency inspectors general could be assigned to conduct regular audits of classification activity and to “push for explanations” of dubious secrets.

The inspectors general are already on site throughout most of the executive branch and they have the security clearances they need to function (though in some cases they may lack adequate funding for this and other purposes). They could provide an enormous force multiplier for the small staff of the Information Security Oversight Office which is nominally responsible for classification oversight government-wide. If the classification system is worth fixing, the Inspectors General could have an important role to play.

Mr. Fine’s remarks on classification appeared in a newly published hearing record entitled “City on the Hill or Prison on the Bay? Part III: Guantanamo–The Role of the FBI,” House Foreign Affairs Committee, June 4, 2008.

Pentagon officials say that the Department of Defense and its contractors are failing to adequately protect “controlled unclassified information” (CUI) that may have significant military or technological value to adversaries or competitors.

“Simply stated, hostile actors can exfiltrate large volumes of unclassified program information in a single attack that can potentially net enough information to enable adversaries to narrow a capability gap,” according to a recent Army information paper (marked “for official use only”).

Digitized information in the hands of Defense Industrial Base (DIB) contractors is said to be particularly vulnerable.

“Exfiltrations of unclassified data from DIB unclassified systems have occurred and continue to occur, potentially undermining and even neutralizing the technological advantage and combat effectiveness of the future force,” the paper stated.

See “U.S. Army’s Concerns with Protection of Controlled Unclassified Information,” (pdf) August 15, 2008.

The paper was obtained by Inside the Army and first reported in “Army Cyber Task Force To Manage Growing Industrial Espionage Risk” by Daniel Wasserbly, Inside the Army, October 20, 2008.

A similar concern about protection of controlled unclassified information was expressed last month by DoD Chief Information Officer John G. Grimes.

He reiterated “the importance of properly protecting controlled unclassified information placed on information systems connected to the Internet, especially those that use file transfer protocol (FTP), peer-to-peer (P2P), and other protocols that are inherently insecure and pose significant security risks.”

“DoD is currently hosting thousands of such sites and, in spite of previous direction, far too much CUI data is still publicly available from these DoD sites,” he wrote.

See “Protection of Controlled Unclassified Information on DoD Information Systems Connected to the Internet” (pdf), September 22, 2008. The Grimes memo was first reported by Sebastian Sprenger in Inside Defense on October 22.

The Department of Defense Inspector General recently reported that defense contractors had failed to properly manage, recover or revoke thousands of Common Access Cards that permit the holder to access controlled defense information on DoD information systems.

This presents “a potential national security risk that may result in unauthorized access to DoD resources, installations, and sensitive information worldwide,” the DoD IG said.

See “Controls Over the Contractor Common Access Card Life Cycle” (large pdf), DoD Inspector General, October 10, 2008.

Among other things, a failure to reliably protect restricted information that is unclassified may produce an undesirable incentive to classify such information.

“Why are Docs From the Bailout Being Redacted?” by Ben Protess, ProPublica, October 22.

“U.S. Army delays, alters medical studies under little-known scientific censorship program” by Bryant Furlow, EPINews, October 21.

“GeoEye’s New Satellite Offers Unprecedentedly Sharp Images” by William Matthews, Defense News, October 20.

“IG: Army is lax in overseeing issuance of contractor ID cards” by Bob Brewin, Government Executive NextGov, October 16.

In August 2005, Steven Rosen and Keith Weissman of the American Israel Public Affairs Committee (AIPAC) were indicted under the Espionage Act on the extraordinary charge that they had improperly received and transmitted classified information that was provided to them by a government official. More than three years later, their case has still not gone to trial.

But next week a federal appeals court will hold a hearing on a government motion to reverse certain lower court rulings concerning the disclosure of classified information at the still unscheduled trial, if and when it does finally occur.

Both the law and the facts of the case are in significant dispute.

From the prosecution’s perspective, the two defendants “conspired to obtain classified information from government sources and passed that information to a foreign government, journalists and others, in violation of [the Espionage Act].”

Yet in an August 20 response (pdf) that was redacted and unsealed last week, the defense not only denied guilt but also said it would prove that no crime had been committed:

“Defendants will demonstrate, among other things, that they acted with innocent states of mind, believing they were acting in the national interest, that officials were authorized to disclose the information to them, and that their conduct was lawful and necessary to save both American and Israeli lives. They will demonstrate that the information at issue was in the public domain, was not damaging to national security, and was not even classified.”

At the hearing next week on October 29, prosecutors will argue that Judge T.S. Ellis, III, who presides over the case in the lower court, “erroneously authorized the disclosure of irrelevant classified information at trial.” Furthermore, they said in a September 12 reply brief (pdf), Judge Ellis “improperly grafted on to Section 793 [of the Espionage Act] several additional intent elements that are nowhere to be found in the statute and [he] repeatedly misapplied the test by which the government’s classified information privilege is adjudged.”

The government’s harsh assessment of Judge Ellis’s handling of the case is remarkable since he is an extremely cautious and deliberate judge (and a Reagan appointee). In an additional complication for the government, Judge Ellis himself sometimes sits on the court of appeals as a designee, making it perhaps a bit less likely that his holdings will be easily overturned by his sometime colleagues.

Adding to the prosecution’s disarray, the U.S. Attorney who has been in charge of the case, Chuck Rosenberg, recently resigned. The lead prosecutor, Kevin DiGregory, quit several months ago.

Given the unusual charge, the questionable factual basis for the prosecution, and the unfavorable judicial reception so far, some observers wonder why the government continues to pursue the case.

In fact, “defendants in the classified-information case involving two former pro-Israel lobbyists are hoping a change in administrations next year will bring a fresh review of their prosecution, according to sources on the defense team,” writes Nathan Guttman in the Forward.

New reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Economic Development Assistance for Communities Affected by Employment Changes Due to Military Base Closures,” October 16, 2008.

“Financial Turmoil: Comparing the Troubled Asset Relief Program to the Federal Reserve’s Response,” October 8, 2008.

“Administering Green Programs in Congress: Issues and Options,” October 6, 2008.

“U.S. Foreign Aid to the Palestinians,” October 8, 2008.

On October 7, the first I.F. Stone Medal for Journalistic Independence was awarded to John Walcott, now of McClatchy Newspapers. As the Washington bureau chief for Knight Ridder, Mr. Walcott led a team of reporters including Jonathan Landay and Warren Strobel who distinguished themselves for thoughtful, critical and skeptical news coverage of the lead-up to the war in Iraq.

The award ceremony served as an occasion for an assessment of the state of journalistic independence, and an attempt to derive the lessons of the recent past. The highlights of the ensuing discussion were presented by Dan Froomkin of the Nieman Watchdog in “The Lessons of our Failure,” October 17.

The I.F. Stone Award is administered by the Nieman Foundation for Journalism at Harvard University along with the Nieman Watchdog.

A rich archive devoted to the life and work of I.F. Stone may be found here.

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

U.S. Nuclear Cooperation With India: Issues for Congress, updated October 2, 2008.

Iraq’s Debt Relief: Procedure and Potential Implications for International Debt Relief, updated October 2, 2008.

NATO Enlargement: Albania, Croatia, and Possible Future Candidates, October 6, 2008.

Navy DDG-1000 Destroyer Program: Background, Oversight Issues, and Options for Congress, updated October 9, 2008.

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, updated October 2, 2008.

Navy F/A-18E/F Super Hornet and EA-18G Growler Aircraft: Background and Issues for Congress, updated October 2, 2008.

Direct Overt U.S. Aid, Export Assistance and Military Reimbursements to Pakistan, FY2002-FY2009, updated October 16, 2008.

A new U.S. Air Force Instruction (pdf) establishes a safety program for directed energy weapons (DEW) in view of the fact that “DEW systems create unique hazards that are different from conventional and nuclear weapons.”

“Potential DEW systems covered by this instruction include, but are not limited to, high-energy lasers, weaponized microwave and millimeter wave beams, explosive-driven electromagnetic pulse devices, acoustic weapons, laser induced plasma channel systems, non-lethal directed energy devices, and atomic-scale and subatomic particle beam weapons.”

See Air Force Instruction 91-401, Directed Energy Weapon Safety, September 29, 2008.

Update: Sharon Weinberger at Danger Room volunteered to be on the receiving end of a directed energy weapon known as the Active Denial System and she lived to tell the tale, and more besides, here.

Another new U.S. Air Force Instruction (pdf) describes the Air Force role in joint DoD-DOE nuclear weapons development, production, refurbishment, and retirement activities.

“Although the DoD and DOE co-manage nuclear weapons through all system life cycle phases, each has specific responsibilities,” the Instruction explains.

“The DOE through the NNSA is responsible for designing, developing, building, sustaining, and dismantling all nuclear warheads. The DoD through the service component is responsible for developing the requirements and specifications for nuclear warhead operational characteristics; the environments in which the warhead must perform or remain safe; the determination of design acceptability; and the military requirements for warhead quantities.”

See Joint Air Force-National Nuclear Security Administration (AF-NNSA) Nuclear Weapons Life Cycle Management, AF Instruction 63-103, September 24, 2008.

A newly revised Pentagon instruction (pdf) updates Freedom of Information Act policy regarding requests submitted to the Office of the Secretary of Defense and the Joint Chiefs of Staff.

“A classified document containing unclassified information may not be denied in total under exemption 1 [of the Freedom of Information Act, which exempts properly classified information] unless the unclassified information, when taken in aggregate, would reveal classified information.”

Furthermore, the instruction says, “It is OSD policy that OSD and JS Components shall promote the public trust by making the maximum amount of information available to the public on the operation and activities of the Department of Defense, consistent with the Department’s responsibility to ensure national security.”

See Office of the Secretary of Defense and Joint Staff (JS) Freedom of Information Act (FOIA) Program, Administrative Instruction No. 108, September 29, 2008.

A newly reissued Department of Defense directive (pdf) explicitly prohibits several of the more controversial interrogation techniques that have previously been practiced against suspected enemy combatants.

So, for example, the new directive states that “Use of SERE [Survival, Evasion, Resistance, and Escape] techniques against a person in the custody or effective control of the Department of Defense or detained in a DoD facility is prohibited.” Waterboarding, in which a sensation of drowning is induced, is one such SERE technique.

In another new prohibition, the directive states that “No dog shall be used as part of an interrogation approach or to harass, intimidate, threaten, or coerce a detainee for interrogation purposes.”

Yet another new prohibition limits the role of psychologists advising interrogators: “Behavioral science consultants may not be used to determine detainee phobias for the purpose of exploitation during the interrogation process.”

The new directive states that it simply “codifies existing DoD policies.” The restrictions noted above, however, did not appear in the prior edition of this directive (pdf), dated 2005.

See “DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning,” DoD Directive 3115.09, October 9, 2008.

At first glance, several provisions in a newly reissued Defense Department Instruction seem to offer a surprisingly forthcoming public disclosure policy to curb the steadily increasing secrecy of recent years. But on closer inspection, that is probably not the case.

“Declassification of information shall receive equal attention with classification so that information remains classified only as long as required by national security considerations,” according to DoD Instruction 5200.01, entitled “DoD Information Security Program and Protection of Sensitive Compartmented Information” (pdf),October 9, 2008.

This DoD requirement that declassification and classification should receive “equal attention” does not appear anywhere in the President’sexecutive order on classification or in its implementing directive which allow agencies to prioritize declassification as they see fit.

Similarly, the new DoD Instruction dictates that “The volume of classified national security information and CUI [controlled unclassified information], in whatever format or media, shall be reduced to the minimum necessary to meet operational requirements.”

No such policy on reducing the volume of secret information to the minimum is specified in the executive order or in the President’s May 2008 policy on controlled unclassified information.

On second glance, however, it turns out that both of these requirements have been on the books at the Pentagon for over a decade (except for the reference to the new CUI category) in the previous version of DoD Directive 5200.01, even as secrecy has grown by leaps and bounds. In other words, these provisions have proved to be mere rhetorical gestures that do not actually constrain official secrecy policy.