In July 2011, J. William Leonard, a former director of the Information Security Oversight Office (ISOO), took the extraordinary step of filing a formal complaint with the Office he once led charging that a document used to indict former NSA official Thomas Drake under the Espionage Act had been wrongly classified in violation of the executive order on classification. (“Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 2, 2011; “Ex-federal official calls U.S. classification system ‘dysfunctional'” by Ellen Nakashima, Washington Post, July 21, 2012)

Last December, in a newly disclosed response, John P. Fitzpatrick, the current ISOO director, concluded that Mr. Leonard’s complaint did not warrant the sanctions that Mr. Leonard had urged.  Neither the original classification of the NSA document, titled “What a Wonderful Success,” nor its continued classification “rise to the level of willful acts in violation of the Order,” Mr. Fitzpatrick wrote in his December 26, 2012 response.

With that, the matter was officially closed.  But the divergent views underlying the complaint remain unresolved and continue to fester.

“I have devoted over 34 years to Federal service in the national security arena, to include the last 5 years of my service being responsible for Executive branch-wide oversight of the classification system,” Mr. Leonard wrote in his 2011 complaint. “During that time I have seen many equally egregious examples of the inappropriate assignment of classification controls to information that does not meet the standards for classification; however, I have never seen a more willful example.”

But Mr. Fitzpatrick said that having reviewed the original classification of the document as well as its continued classification, “I find no violation in either case.”  In fact, he noted, “NSA discontinued the classification of the document in question” during the course of the Drake case.

“The content and processing of the document fall within the standards and authority for classification under the Order and NSA regulations,” Mr. Fitzpatrick wrote.  That doesn’t make them immune to criticism, he wrote, but it means that their classification does not “rise to the level of willful acts in violation of the Order.”

Mr. Leonard was not persuaded.  In an email to Mr. Fitzpatrick after the complaint was dismissed, he said he was not overly concerned by the original classification of the document, “which although improper was, by all appearances, a reflexive rather than willful act.”  Nor, of course, was he troubled by the eventual declassification of the document.

But “What I did and continue to take issue with is that in between those events, senior officials of both the NSA and DoJ made a number of deliberate decisions to use the supposed classified nature of that document as the basis for a criminal investigation of Thomas Drake as well as the basis for a subsequent felony indictment and criminal prosecution.”

Not only that, Mr. Leonard said, but DoJ and NSA officials justified the classification after the fact by claiming the document “reveals… a specific level of effort…” concerning a classified activity, and that that assertion was “factually incorrect.”

Mr. Fitzpatrick said he had no basis to comment on the Drake case per se.  “That is not my purview.”

“I do think it important to note that ISOO’s authority to handle the complaint pertains to classification actions authorized under the Order.  It does not extend to investigative or prosecutorial decisions made under other authorities,” Mr. Fitzpatrick told Secrecy News yesterday.

But he added that “To conclude that the single document cited in the complaint was the primary basis for an investigation and prosecution is, in my view, too narrow a reading of the facts of the case. When building such cases, agencies make decisions to reduce the risk of exposing national security information.  This influences their selection of which documents and evidence to place in the public record.  These are matters of investigative and prosecutorial discretion whose results are determined in court.  Neither those results, nor opinions about the relative merits of mounting a case, recast the original classification action as sanction-worthy.”

Mr. Leonard highlighted the striking fact that no one has ever been sanctioned for abuse of classification authority, and he told Mr. Fitzpatrick that the present case was a missed opportunity.

“Accountability is crucial to any system of controls and the fact that your determination in this case preserves an unbroken record in which no government official has ever been held accountable for abusing the classification system does not bode well for the prospect of real reform of the system,” Mr. Leonard wrote.

Why indeed has there never been any accountability for classification abuse?  Mr. Fitzpatrick said “This goes to the cultural aspects of national security information control, where the premium is placed on protection and avoidance of inadvertent disclosure.  The other side of that coin — I would call it simply overclassification — is less generally policed against.  Its ill effects are felt in the cumbersome processes associated with declassification review and the persistent backlogs and slow processes that characterize the system.”

Mr. Leonard went further in a thoughtful but scathing presentation at a panel sponsored by the Brennan Center for Justice on March 14 (beginning at 36:25), in which he first disclosed the ISOO response to his complaint. He said, “I’ve come to the conclusion that the executive branch is both incapable and unwilling to achieve real reform in this area.”

Mr. Fitzpatrick said that, for his part, he retained a degree of hope that meaningful changes to secrecy policy could still be achieved.

“There are some essential elements needed to bring about reform, and they hard to come by,” he said via email. “The first and most important is an unambiguous call for change from senior leadership.  That mandate must promise commitment and describe specific outcomes the change is meant to bring about.  Examples would include: reduce classification; expedite declassification; improve access to declassified historical Formerly Restricted Data.  Given that inter-agency cooperation is needed to address these issues, nothing short of a White House-directed effort is likely to succeed in making this kind of reform happen.  This belief underlies the [Public Interest Declassification Board‘s] primary recommendation from their recent report [namely, to establish a White House-led steering group on secrecy reform].”

The last impartial word about the Thomas Drake prosecution (though not specifically on classification policy) may be that of the presiding judge, Judge Richard D. Bennett. At the July 2011 sentencing hearing that ended the case, he called the government’s handling of the matter “unconscionable” and abusive.

Thomas Drake himself reflected on his experience in a speech to the National Press Club on March 15.

Judge Rosemary M. Collyer of the D.C. District Court was appointed by the Chief Justice of the United States to a seven year term on the Foreign Intelligence Surveillance Court. The Court provides a measure of judicial oversight over surveillance activities under the Foreign Intelligence Surveillance Act, as amended.

Judge Collyer’s term on the FIS Court began on March 8, 2013 and will conclude on March 7, 2020.  She replaces Judge John D. Bates, whose term ended on February 21.  Her appointment was confirmed by Sheldon Snook, spokesman for the Court.

A roster of the current membership of the Foreign Intelligence Surveillance Court can be found here.

The Court has acknowledged receipt of a letter from several members of the Senate requesting that the Court prepare summaries of its legal interpretations of the Foreign Intelligence Surveillance Act in order to facilitate their declassification and public release.  But no further action has yet been taken by the Court, as far as could be determined.

Judge Collyer was appointed to the bench by President George W. Bush. In September 2011, she authored an opinion accepting the CIA’s view that for the CIA merely to acknowledge the fact that it had an interest in the use of drones for targeted killing would pose unacceptable damage to national security.

Today, the DC District of Appeals unanimously reversed Judge Collyer’s decision.  The appeals court said the CIA was adhering to “a fiction of deniability that no reasonable person would regard as plausible.”  The case — American Civil Liberties Union v. Central Intelligence Agency — was remanded to Judge Collyer for further processing.

The Office of Personnel Management has invited the public to comment on proposed changes to Standard Form (SF) 86, the questionnaire that must be filled out by all persons who are seeking a security clearance for access to classified information.

Although critics have argued that the SF-86 is hopelessly out of date and should be abandoned in favor of a more streamlined process, the changes that OPM is currently considering are mostly technicalities, not a wholesale revision.  Proposed changes include a recognition of civil unions as a legal alternative to marriage, a clarification that use of drugs that are illegal under federal law must be reported even if they are legal under state law, and changes in wording and instructions for completion of the Form.

Public comments on the changes were solicited by OPM in a March 12 Federal Register notice.

SF-86 is notoriously burdensome to fill out, requiring individuals to supply detailed personal information about all places they have lived for the past seven years, their employment history and where they went to school, along with the name and contact information of someone who can verify each item, as well as any criminal history record, use of illegal drugs, and so forth.

“The SF 86 takes approximately 150 minutes to complete,” the OPM notice says.  But for many people, this seems to be an underestimate.

“I spent four hours one Saturday completing [an] SF-86,” wrote John Hamre, who was deputy secretary of defense under President Clinton, in a Washington Post op-ed recently. His pointed criticism of the Form and the clearance process may have inspired some of the proposed changes. (“The wrong way to weed out spies,” Washington Post, February 20.)

The OPM notice promises that “once entered, a respondent’s complete and certified investigative data remains secured in the e-QIP system until the next time” the form must be completed (e.g. for clearance renewal).

But in Secretary Hamre’s case this didn’t happen for some reason — his previous Form was not saved. “The OPM apparently had no record of this document, which was filed with that agency,” he wrote, so he had to start over from scratch.

When the SF-86 asked for a list of “all foreign travel you have undertaken in the past 7 years,” Hamre balked.  He said he had repeatedly traveled on official business and always reported any contacts with foreign government officials.  So “I refused to enter the information, rather than give it to our government a second time.”

As if in response to Hamre’s objection, the new OPM notice says the Form’s instructions will be “amended so that the respondent need [not] report contact related to official U.S. Government travel.”

Much like the national security classification system that it supports, the security clearance process is still predicated on cold war-era presumptions that became obsolete decades ago. This fundamental critique has yet to be addressed by OPM.

“Why does our government rely on forms designed in the 1950s?” Hamre complained.  “Our country needs a system built for the 21st century.  The current system is pathetic.”

Last summer, Director of National Intelligence James R. Clapper directed agencies that perform polygraph tests to include a “pre-test dialogue” about the need to prevent leaks of classified information as part of the polygraph interview process.

In a July 2012 memorandum to agencies, he said that the CIA’s polygraph program exemplified what he had in mind.

“During the pre-test discussion, CIA specifically asks whether an individual has provided classified information or facilitated access to classified information to any unauthorized persons, to include the media, unauthorized U.S. persons, or foreign nationals.  The polygraph process is also used to identify deliberate disclosures,” DNI Clapper wrote.  Other agencies that perform polygraph testing should follow procedures similar to CIA’s, he said.

“Aggressive action is required to better equip United States Government elements to prevent unauthorized disclosures,” DNI Clapper wrote.

The new policy was announced last June, but the implementing July 2012 memorandum was only released this week in response to Freedom of Information Act requests.  See Deterring and Detecting Unauthorized Disclosures, Including Leaks to the Media, Through Strengthened Polygraph Programs, July 13, 2012.

A copy of the memorandum was also obtained by Jason Leopold of Truthout.org, who reported on it yesterday.

 

Leaks of classified information and the government’s responses to them are the subject of a new study by David Pozen of Columbia Law School.

The starting point for his examination is the “dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.”  How can this disconnect be understood?

Leaks benefit the government, the author argues, in many ways. They are a safety valve, a covert messaging system, a perception management tool, and more.  Even when a particular disclosure is unwelcome or damaging, it serves to validate the system as a whole.

This thesis may explain why the number of leak prosecutions is still lower than might be expected, given the prevalence of leaks, and why new legislative proposals to combat leaks have met with a lukewarm response from executive branch officials.

“The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures.”

The article is full of stimulating observations woven into an original and provocative thesis.  See The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information by David Pozen, to be published in Harvard Law Review.

At an open hearing on February 28, Pfc. Bradley Manning said that he was responsible for providing U.S. government documents to the WikiLeaks website, including a large collection of U.S. State Department cables, a video of a brutal U.S. Army helicopter attack in Baghdad, and other records.

“The decisions that I made to send documents and information to the WLO [WikiLeaks Organization] and website were my own decisions, and I take full responsibility for my actions,” he told the military court.

The Army belatedly released a redacted copy of Pfc. Manning’s statement yesterday. [Correction: The redacted statement was released by Manning’s defense counsel, David E. Coombs.] (An unofficial version had been privately transcribed by Alexa O’Brien soon after the hearing.)

The Freedom of the Press Foundation obtained an audio recording of the statement, which it released online.

Manning eloquently expressed his motivations for the unauthorized disclosures, including the need to expose corruption and deception in the conduct of diplomacy and military operations. He described the efforts he made to weigh the possible damage that might result from disclosure, and the judgment he made that release of the records was the appropriate step.

But he did not acknowledge that any other individuals had been placed at risk by his actions, nor did he take responsibility for any consequences they might suffer. Taliban leaders said in 2010 that they were scrutinizing the Afghanistan war records published by WikiLeaks and that they would “punish” persons listed in the records who were found to have cooperated with the U.S. military.

 

Last fall, Navy contract linguist James Hitselberger was charged under the Espionage Act with two counts of unlawful retention of national defense information after several classified documents were allegedly found in his possession.  (See “Document Collector Charged Under Espionage Statute,” Secrecy News, November 7, 2012.)

Two weeks ago, in a superseding indictment, prosecutors added a third charge of unlawful retention under the Espionage Act, along with three other counts of unauthorized removal of a public record.

Mr. Hitselberger’s public defenders responded with a battery of pre-trial motions, including a new challenge to the constitutionality of the Espionage Act itself.

The defense attorneys said the indictment against Mr. Hitselberger is “multiplicious,” meaning that a single offense has been alleged in multiple, redundant counts. This is an impermissible practice that is considered prejudicial to a defendant.  Mulitplicious counts “afford the government an unfair advantage by increasing the likelihood that the jury will convict on at least one count, if only as the result of a compromise verdict.”  The defense asked the court to compel prosecutors to choose between Count One and Count Two, “both of which charge the same offense of unlawful retention of national defense information.”

Defense attorneys also moved for a “bill of particulars” to require the government to identify exactly which “national defense information” Mr. Hitselberger is accused of unlawfully retaining in violation of the Espionage Act.

“Even if the documents at issue here are classified and the government proves beyond a reasonable doubt the Mr. Hitselberger retained them, the government must establish that information within these documents constitutes national defense information…. [Yet] much (if not all) of the information contained in the documents is publicly available information…. In order to prepare for trial without needlessly preparing to respond to irrelevant information or guessing at what the government deems relevant, defense counsel must be directed to the portions of the documents that the government claims constitute national defense information.”

But perhaps the most interesting motion filed by the defense, and one which adds a dimension beyond the particular facts of Mr. Hitselberger’s case, asks the court to find the unlawful retention statute of the Espionage Act unconstitutionally vague.

Every leak prosecution has included a defense challenge to the constitutionality of the Espionage Act, almost as a matter of course.  The constitutionality of the Act has consistently been upheld, though sometimes with limiting factors imposed by the court.  In any event, the Hitselberger motion, filed by public defenders A.J. Kramer and Mary Manning Petras, carefully distinguishes the current matter from previous cases.  At several points the motion included striking insights from Melville Nimmer and other legal scholars to bolster its argument.  The result is something more than a pro forma gesture.

The Espionage Act prohibition on unlawful retention of national defense information (18 USC 793e) “is a statute of alarming breadth and little definition,” the defense attorneys concluded. “Because the statute is vague, this Court should dismiss Counts One, Two and Three of the indictment.”

Other motions filed by the defense and the prosecution are posted here.

Mr. Hitselberger is not accused of espionage, nor is he suspected of acting on behalf of a foreign power.

Last year, DC District Judge Richard W. Roberts ordered the U.S. Trade Representative to disclose a classified document to a FOIA requester because, he said, the classification of the document was not properly supported.  That ruling in Center for International Environmental Law v. Office of the U.S. Trade Representative was a startling judicial rebuff to executive classification authority of a sort that had not been seen in many years, and the government quickly appealed.

In oral arguments in the DC District Appeals Court last month, government attorneys all but declared that a court has no power to overrule an executive branch classification decision.  The transcript of that February 21 hearing has just become available.

Judge Roberts’ “substitution of [his] judgment about likely harm to foreign relations [that could ensue from disclosure] fails to give the deference that’s due to the Executive in this sensitive area of foreign relations and national security, and is entirely inconsistent with this Court’s consistent case law over many decades that emphasizes the need for such deference,” argued H. Thomas Byron, III, on behalf of the U.S. Trade Representative.

Circuit Court Judge Brett Kavanaugh asked Mr. Byron whether there were any circumstances in which a court could reject a classification claim.

“When do you think a Court could ever disagree with the Executive’s determination in this kind of case?” Judge Kavanaugh asked.

Mr. Byron that if the agency’s declarations in support of classification are logical and plausible, then the agency is entitled to judicial deference.

“Isn’t that going to cover 100 percent of the cases?” Judge Kavanaugh asked.

“I certainly think, Judge Kavanaugh, that the Executive would not submit a declaration that was not logical or plausible,” Mr. Byron replied.

Then he went even further and suggested that the executive branch has exclusive constitutional authority over classification policy.

Judge Kavanaugh was inquiring how the government would respond to an argument made in an amicus brief filed by media organizations contending that Congress had mandated judicial review of classification when it amended the FOIA in 1974 in order to enable Courts to review executive classification judgments. Not only that, but when President Ford vetoed the measure, Congress overrode the veto.

Mr. Byron said, “The question is whether those changes [i.e. the 1974 amendments] altered the constitutionally required deference to the Executive in this area under the Separation of Powers Doctrine,” suggesting that the congressional override of President Ford’s veto was meaningless and without effect.

“That’s interesting,” said Judge Kavanaugh. “You don’t think Congress could put the courts in the position of second guessing” the executive?

“Well, when it comes to predictive judgments about harm to national security and foreign relations I think that’s a very difficult question,” Mr. Byron said.

“I agree,” Judge Kavanaugh replied.

Cogent arguments to the contrary were made by attorney Martin Wagner on behalf of the Center for International Environmental Law at the hearing and can be found in the transcript.  An account of the hearing from the Reporters Committee on Freedom of the Press is here.

This week is Sunshine Week, an annual effort sponsored by journalism advocacy and civil society organizations to promote values of open government, freedom of information, and public participation. A rich variety of events are scheduled around the country, most of which are free and many of which will be webcast.

I will be participating in several programs, including these:  Open Government in the Second Term, sponsored by the Center for Effective Government and the Electronic Privacy Information Center on March 12.

The Future of Classification Reform, sponsored by the Brennan Center for Justice on March 14

Freedom of Information Day at the Newseum on March 15

Freedom of Information Day at the Washington College of Law Collaboration on Government Secrecy on March 18

A new report from the Center for Effective Government found reason to praise the Obama Administration’s openness in some areas of government but not in national security, which it said has been a “glaring exception” to progress in other domains.

Among numerous recommendations for future progress, the Center report urged the Department of Justice to renounce the use of criminal prosecution for leaks to the media. “Unauthorized disclosures of restricted information to the media should be handled through administrative channels, not criminal prosecution.”  See Delivering on Open Government: The Obama Administration’s Unfinished Legacy, March 10.

The Commander of U.S. Central Command said last week that he is “encouraged” by the willingness of U.S. intelligence agencies to share information with military allies, which is becoming “a standard practice rather than the exception.” At the same time, the chair of the Senate Intelligence Committee complained that her committee has not been receiving the intelligence information that it requires to perform its oversight function.

“As I travel throughout the AOR [area of responsibility] and see the promise of new initiatives and the risk posed by numerous challenges, I receive requests from military leaders across the region to increase intelligence sharing between our militaries,” said Gen. James N. Mattis, CENTCOM Commander, in testimony before the Senate Armed Services Committee on March 5.

“In order to demonstrate our commitment, I requested the Intelligence Community to begin drafting releasable products for our most trusted partners in the Levant, on the Arabian Peninsula, in the Central Asian States, and in South Asia as a standard practice rather than the exception,” Gen. Mattis said.

“I am encouraged by the personal attention the Office of the Director of National Intelligence is giving these matters. Director Clapper’s strong emphasis and encouragement for the intelligence community to produce intelligence in a manner that eases our ability to responsibly share information with our military counterparts creates a stronger, more focused front against our common enemies and builds our partner nations’ confidence. We are grateful for the nimble manner in which our intelligence community has strengthened our efforts to checkmate more of our enemy’s designs,” Gen. Mattis testified.

But in a notable contrast, congressional leaders say they have not gotten similar cooperation from the intelligence community, and they have less reason for encouragement.

“There is a very strong feeling on both sides of the aisle that the [intelligence] committee is not receiving the information it needs to conduct all oversight matters in the manner in which we should,” said Sen. Dianne Feinstein, chair of the Senate Intelligence Committee, during the Senate confirmation of John O. Brennan to be CIA Director on March 7.

“There is the matter of Office of Legal Counsel opinions concerning the targeted killing of Americans. The committee needs to understand the legal underpinning of not only this program but of all clandestine programs, of all covert actions, so we may ensure the actions of the intelligence community operate according to law,” Sen. Feinstein said. “Absent these opinions, we cannot conduct oversight that is as robust as it needs to be.”

With respect to the opinions on targeted killing, at least, the committee was finally able to reach an accommodation with the Administration while the confirmation process was pending, which included “staff access and without restrictions on note taking,” she said.

“I want to thank the administration. I think increasingly they understand this problem of the need for us to access more information. It is not a diminishing one, it is a growing one, and it is spreading through this House– and I suspect the other House as well,” Sen. Feinstein said.

Sen. Patrick Leahy, chair of the Senate Judiciary Committee, said he “reluctantly opposed” the confirmation of Mr. Brennan because “the administration has stonewalled me and the Judiciary Committee for too long on a reasonable request to review the legal justification for the use of drones in the targeted killing of American citizens.”

Congress has again blocked the transfer of the National Intelligence Program outside the Department of Defense budget, rejecting a move that had been urged by the 9/11 Commission.  The transfer was specifically prohibited in the 2013 continuing appropriations conference bill passed by the House yesterday.

“None of the funds appropriated in this or any other Act may be used to plan, prepare for, or otherwise take any action to undertake or implement the separation of the National Intelligence Program budget from the Department of Defense budget,” the conference bill stated in section 8108.

As things stand, the National Intelligence Program is largely subordinate, if not altogether subservient, to the Department of Defense and to the vagaries and pressures of the defense appropriations process.

The 9/11 Commission said that a stand-alone intelligence budget was a prerequisite to effective intelligence leadership, and that it was an essential step towards needed reform of congressional oversight of intelligence.

Declassification of the intelligence budget total, which has now become the norm, made it possible to “unlock the concealment of the intelligence budget inside the Pentagon budget and, with it, control by the defense appropriations subcommittee and the Pentagon,” recalled Commission executive director Philip Zelikow in an article last year in CIA Studies in Intelligence. “With that declassification, our proposed reform of Congress was possible, adding budget control to the general oversight authority of the intelligence committees.”

But giving additional authority to the intelligence committees meant taking authority away from defense appropriators, and it seems that was too much to swallow.

In another provision of the 2013 continuing appropriations bill (sec. 8080), Congress said that no funds may be spent to make use of intelligence that has been unlawfully acquired.

“None of the funds provided in this Act shall be available for integration of foreign intelligence information unless the information has been lawfully collected and processed during the conduct of authorized foreign intelligence activities: Provided, That information pertaining to United States persons shall only be handled in accordance with protections provided in the Fourth Amendment of the United States Constitution as implemented  through Executive Order No. 12333.”

Congress has directed the Secretary of Defense to report on the handling of surveillance data collected by military unmanned aerial systems operating in domestic airspace.  A provision in the 2013 continuing appropriations conference bill approved by the House yesterday explained:

“The conferees are aware of concerns that have been raised regarding the use of unmanned aerial vehicles (UAV) and their sensors in domestic airspace. The conferees understand that the Air Force has policies and procedures in place governing the disposition of UAV collections that may inadvertently capture matters of concern to law enforcement agencies. These policies and procedures are designed to ensure constitutional protections and proper separation between the military and law enforcement. However, it is unclear if other Services and Defense agencies have similar policies and procedures in place, or if these policies and procedures need to be revised or standardized. Therefore, the conferees direct the Secretary of Defense to report to the congressional defense committees on the policies and procedures in place across the Services and Defense agencies governing the use of such collections and to identify any additional steps that need to be taken to ensure that such policies and procedures are adequate and consistent across the Department of Defense. This report shall be submitted not later than 90 days after the enactment of this Act.”

The referenced Air Force policy on incidental collection of U.S. person data by its drones was reported in USAF Drones May Conduct ‘Incidental’ Domestic Surveillance, Secrecy News, May 8, 2012.

The use of unmanned aerial systems for surveillance and targeted killing of American citizens has galvanized political attention to a degree that seems wildly out of proportion to the objective data that are available.  But that political attention itself creates a new objective reality.

Sen. Rand Paul conducted a nearly 13 hour filibuster on the Senate floor yesterday in an effort to compel an official answer to the question of whether non-combatant U.S. citizens could be lethally targeted by drone in the United States.  (The answer, the attorney general said today, is no.)  The text of the marathon floor discussion, which included many interesting and substantive points, is available here.

On Tuesday, a bill was introduced by Rep. Austin Scott (R-GA) “to protect individual privacy against unwarranted governmental intrusion through the use of the unmanned aerial vehicles commonly called drones” (HR 972).