The U.S. Air Force this month issued new guidance on “Geospatial-Intelligence (GEOINT).”  See Air Force Instruction 14-132, August 10, 2012.

The Instruction mandates that “All GEOINT activities will be conducted in compliance with applicable laws, policies, and directives.  They will be conducted in a manner that ensures legality and propriety and that preserves and respects privacy and civil liberties.”

U.S. government guidance on the targeting of nuclear weapons is perhaps the most tightly held of all national security secrets, and “fewer than twenty” copies of the President’s instructions on the subject are extant within the entire Department of Defense.

Following a November 2011 hearing of the House Armed Services Committee, Rep. Michael Turner (R-OH) asked “How many military and civilian personnel in the executive branch have full or partial access to nuclear employment and targeting guidance?”

In newly published responses to questions for the record, Under Secretary of Defense James N. Miller said the answer was “a very small group of personnel in the executive branch.”

“Even within the Department of Defense (DOD), access to this sensitive material is tightly controlled,” Dr. Miller added. “Within the Department of Defense, fewer than twenty copies of the President’s guidance are distributed in the Office of the Secretary of Defense, the Joint Staff, and U.S. Strategic Command.”

The nuclear weapons guidance issued by the Secretary of Defense and the Chairman of the Joint Chiefs to implement the President’s instructions is somewhat more broadly disseminated.

“Fewer than 200 copies of the most recent amplifying guidance issued by the Secretary of Defense were produced, and distribution was limited primarily to Office of the Secretary of Defense, the Joint Staff, U.S. Strategic Command, and other Combatant Commanders. The Chairman’s guidance is distributed more widely within DOD (fewer than 200 copies), as the document assigns responsibilities to several defense agencies and the intelligence community. Commander, U.S. Strategic Command must issue guidance to his planners and forces in the field, so distribution is somewhat wider because of that need.”

What about congressional access?  “How many personnel in the legislative branch have full or partial access to each level of guidance?”, Rep. Turner asked.

Dr. Miller declined to answer that question directly.

“There is a long history of debate about providing the legislative branch access to this material,” he said. “As a result, instances of providing access to a member of Congress and senior staff personnel have been quite limited and under restrictive terms.”

In fact, the history of debate over congressional access to nuclear targeting information was never conclusively resolved, as far as is publicly known.  In 2000, then-Sen. Robert Kerrey criticized the Department of Defense repeatedly for refusing to provide the information.

“As elected representatives of the people, and with a Constitutional role in determining national security policy, Congress should have an understanding of the principles underpinning our nuclear policy. Both the guidance provided by the President and the details of the SIOP [nuclear weapons targeting plan] are necessary for us to make informed national security decisions,” Sen. Kerrey said on the Senate floor on June 30, 2000.

Sen. Kerrey wrote to then-Secretary of Defense William Cohen seeking an explanation of the Department’s policy on congressional access to nuclear targeting information.  But no reply was ever received.

In the newly released questions for the record, which address a multiplicity of nuclear policy issues, Rep. Turner also asked “How many military personnel have full or partial access to STRATCOM’s OPLAN 8010?”, referring to the U.S. Strategic Command nuclear war plan.

“Full access to all portions of OPLAN 8010 is limited to our most senior leadership,” replied Gen. C. Robert Kehler, STRATCOM Commander.

For background on OPLAN 8010, see Obama and the Nuclear War Plan by Hans M. Kristensen, Federation of American Scientists, February 2010.

If the former Navy SEAL who co-authored a new book about killing of Osama bin Laden signed a non-disclosure agreement for access to “sensitive compartmented information” (i.e., classified intelligence information), then he was obliged to submit his manuscript to the government for prepublication review even if he believed that it contained no classified information.

A sample SCI non-disclosure agreement that is used by the Department of Defense is here.

If the book did contain classified information, then the author could conceivably be subject to criminal prosecution under the Espionage Act.  But even if it did not contain classified information, its publication without prior review could be deemed a breach of contract, with the proceeds subject to seizure by the government.

The government’s authority to enforce a non-disclosure agreement in this way was affirmed by a federal court most recently in the case of USA v. Ishmael Jones.  In that case, Jones (the pseudonym of a former CIA officer) published his manuscript without completing the prepublication review process.

Last week, Adm. William H. McRaven of U.S. Special Operations Command condemned the disclosure of classified information by former special operators, as well as other forms of activism that tended to politicize the service.

“While as retired or former service members, they are well within their rights to advocate for certain causes or write books about their adventures, it is disappointing when these actions either try to represent the broader S.O.F. community, or expose sensitive information that could threaten the lives of their fellow warriors,” McRaven wrote in an email to all special operations personnel.

“We will pursue every option available to hold members accountable, including criminal prosecution where appropriate,” he wrote, as reported by Kimberly Dozier of the Associated Press.

“Today, U.S. Special Operations Forces are in 78 countries around the world supporting U.S. policy objectives,” Adm. McRaven told Congress last March.

The SOCOM budget request for FY2013 is $10.4 billion.  “The FY 2013 budget includes 21 construction projects in nine states, one overseas, and one at a classified location,” Adm. McRaven said in the 2012 SOCOM posture statement.

A federal court yesterday dismissed a lawsuit which alleged that the Federal Bureau of Investigation had engaged in unlawful surveillance of Muslim residents of southern California.  The court granted the Obama Administration’s claim that the state secrets privilege precluded litigation of the case.

The plaintiffs in the case contended that the FBI had “conducted an indiscriminate ‘dragnet’ investigation and gathered personal information about them and other innocent Muslim Americans in Southern California based on their religion.”

The government said various aspects of the subject were too sensitive to be addressed in open court.  Last year, Attorney General Eric Holder filed a declaration asserting that several categories of information pertaining to the case were protected by the state secrets privilege and their disclosure “could reasonably be expected to cause significant harm to the national security.”

Yesterday, Judge Cormac J. Carney of the Central District of California agreed and he issued an order dismissing most of the plaintiffs’ claims.

“Further litigation,” he wrote, “would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country’s national security.”

In his order, Judge Carney also reflected more broadly on the function of the state secrets privilege and its implications for individual liberties.

“The state secrets privilege strives to achieve a difficult compromise between the principles of national security and constitutional freedoms. The state secrets privilege can only be invoked and applied with restraint, in narrow circumstances, and infused with judicial skepticism. Yet, when properly invoked, it is absolute—the interest of protecting state secrets cannot give way to any other need or interest,” he wrote.

It follows that “the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”

“The Court recognizes the weight of its conclusion that Plaintiffs must be denied a judicial forum for their claims. The Court does not reach its decision today lightly, but does so only reluctantly, after months of careful review of the parties’ submissions and arguments, particularly the Government’s in camera materials upon which the Court heavily relies.”

“Plaintiffs raise the specter of Korematsu v. United States… and protest that dismissing their claims based upon the state secrets privilege would permit a ‘remarkable assertion of power’ by the Executive, and that any practice, no matter how abusive, may be immunized from legal challenge by being labeled as ‘counterterrorism’ and ‘state secrets.’ But such a claim assumes that courts simply rubber stamp the Executive’s assertion of the state secrets privilege. That is not the case here.”

“The Court has engaged in rigorous judicial scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye. The Court firmly believes that after careful examination of all the parties’ submissions, the present action falls squarely within the narrow class of cases that require dismissal of claims at the outset of the proceeding on state secret grounds,” Judge Carney wrote.

The ACLU of Southern California said it would appeal the decision, the Los Angeles Times reported today.

In a September 2009 policy statement on state secrets, the Attorney General pledged to refer credible claims of wrongdoing that had been dismissed on state secrets grounds to an agency Inspector General for review.  It is unknown whether such a referral has occurred in this case, or indeed if it has ever occurred.  The Department of Justice recently refused to answer a congressional inquiry on the subject.

A coalition of public interest groups asked the Senate and House Intelligence Committees to preserve an existing requirement for the Intelligence Community to produce an annual report on the number of security clearances.  “We believe the annual report on security clearances provides exceptional value to the public and should continue to be published,” the groups wrote.  The Senate Intelligence Committee markup of the 2013 intelligence authorization bill would repeal the reporting requirement.

Last week the Senate confirmed four of the five nominees to the long-dormant Privacy and Civil Liberties Oversight Board.  The nominations of James Dempsey, Elisabeth Collins Cook, Rachel Brand and Patricia Wald were unanimously confirmed.  For unexplained reasons, the Senate did not act upon the nomination of David Medine to serve as Board chairman.

The Naval Criminal Investigative Service contacted the Wired Danger Room blog to inquire where its reporter obtained a certain unclassified document five years ago and to ask that the document, which was marked “for official use only,” be taken offline.  “Danger Room, through its attorney, declined to provide the information, or to answer any questions related to the reporting of the story.  The document has not been removed.”  A government information security official not involved in the matter said it was possible there was more to the story than appeared on the surface.  “If the [NCIS] investigation is about the FOUO document, then it’s ridiculous. If it’s about something else, we might not ever know.”

The House Intelligence Committee filed its report on the extension of the FISA Amendments Act.  Like its counterparts on the Judiciary Committee, the Intelligence Committee rejected amendments that would shorten the extension of the law and increase public oversight of its implementation.

With little fanfare or self-congratulation, the National Reconnaissance Office and the National Security Agency have been steadily declassifying and releasing historical intelligence records.  “This tremendous amount of information released in the past year is credit to an impressive declassification program within the intelligence services,” wrote historian Dwayne Day in an assessment of the latest NRO releases. “The US military and intelligence space programs during the first couple of decades of the space age can now be described in incredible detail and understood far better than before.”

Ordinarily, critics of government secrecy focus their ire — and their strategy — on executive branch agencies that refuse to release certain national security-related information to the public.  But to an extent that is not widely recognized or understood, it is Congress that has erected barriers to greater openness and has blocked efforts to improve transparency.

Increased FISA Disclosure Blocked in House

The phenomenon of congressionally-sponsored secrecy was starkly illustrated in a new House Judiciary Committee report on the FISA Amendments Act, which governs intelligence surveillance for purposes of counterterrorism.

Despite well-founded concerns over the implementation of that law — even the DNI acknowledges it has been employed in an unconstitutional fashion “on at least one occasion” — the Committee voted to renew it until 2017 while rejecting amendments that would have provided increased public disclosure and accountability regarding the law’s use.

It is a simple fact that under the FISA Amendments Act “the government can and does intercept the communications of U.S. citizens, even in the absence of any particularized warrant or showing of probable cause,” stated the dissenting members of the Committee in the new report.

“The public has a right to know, at least in general terms, how often [this authority] is invoked, what kind of information the government collects using this authority, and how the government limits the impact of these programs on American citizens,” the minority members wrote.  But an amendment to require unclassified public reporting on these topics, offered by Rep. Bobby Scott (D-VA), was defeated 10-19.

Another amendment introduced by Rep. Jerrold Nadler (D-NY) would have required publication of unclassified summaries of decisions of the Foreign Intelligence Surveillance Court that have interpreted the law in significant ways.  “This amendment aimed only to make the legal reasoning of the FISA Court available to the public.  It also sought to ensure that the United States should not have a secret body of law.”  It was rejected by a vote of 13-17.

A third amendment would have required the Inspectors General of the intelligence community and the Justice Department to produce a public estimate of how many Americans have already had their communications collected under this law.  The amendment, by Rep. Sheila Jackson Lee (D-TX), failed by a vote of 11-20.

All of these amendments “would have left the underlying authorities of the FAA [FISA Amendments Act] intact, but would have required the government to make basic, non-sensitive information available to the public,” the dissenting members wrote in the new report.  “The FAA is an important tool for intelligence gathering, but classified reports and secret court opinions are no substitute for public oversight.”

Remarkably, that is a minority view today.  The majority in the House Judiciary Committee, and most likely in Congress as a whole, favors classified reports and secret court opinions, and it has little use for public oversight or public consent.

Congress Has Outlawed Bulk Declassification

The problem of congressionally-mandated secrecy is also manifest in the difficulties facing declassification of valuable historical records.  The National Declassification Center was tasked by President Obama in 2009 to eliminate the backlog of nearly 400 million pages of 25 year old records awaiting declassification by the end of 2013.

By all indications, that goal will not be met and the President’s instruction will not be fulfilled.  As a result, the Center has been criticized, by myself among others, as inadequate to its task.  See, most recently, “Obama administration struggles to live up to its transparency promise, Post analysis shows” by James Ball, Washington Post, August 3.

But on closer inspection, much of the criticism directed toward the National Declassification Center is unfair.  It misdiagnoses the problem.  The Center and its director, Sheryl Shenberger, have been working energetically and creatively to develop improved declassification procedures and greater productivity.  Records that were mistakenly believed to have been made public in the Clinton Administration are finally now becoming available in actuality.  The pace of declassification is increasing.  But not fast enough.

The primary reason that the Center will not meet its presidentially-assigned goal is not some latent preference for non-disclosure among the Center staff.  Rather, the main problem is an obstacle created by Congress in the form of a 2000 statute known as the Kyl-Lott Amendment.  That Amendment makes it impossible to perform bulk declassification of government records, no matter what their age or subject matter, unless they have been certified as “highly unlikely” to contain nuclear weapons-related information.  In the absence of such certification, declassifiers at the Center and elsewhere have no choice but to conduct what amounts to page-by-page review.

Because this Kyl-Lott review requirement has been written into law by Congress, it trumps any “order” or goal that the President of the United States might set.  No alternate set of procedures to protect classified nuclear weapons information would suffice to satisfy the law.

In effect, Congress has vetoed the possibility of bulk declassification of government records.  Unless and until the Kyl-Lott Amendment is repealed, it is hard to see how the laborious, time-consuming declassification process can ever be transformed into something more sensible and efficient.

SSCI Giveth and Taketh Away?

One of the handful of genuine breakthroughs in national security transparency lately has been the public reporting on security clearances, and particularly the disclosure of the unexpectedly high number of cleared persons eligible for access to classified information.

The release of this information was not voluntary, but was the result of a statutory requirement in the FY 2010 intelligence authorization act.  Thanks are due to the House and Senate Select Committees on Intelligence for legislating this precedent-setting disclosure.

Now, however, the Senate Select Committee on Intelligence (SSCI) has moved to repeal this two-year-old reporting requirement (in section 308 of S.3454), as requested by the intelligence community (h/t Emptywheel).  Although it is consistent with recent Committee steps to curtail press and public access even to unclassified intelligence information, the logic of this move is hard to fathom.

If the Senate Committee’s repeal provision is adopted by Congress, this most basic measure of the size of the national security bureaucracy would cease to be updated and made publicly available.  The secrecy and obscurity of the recent past would be restored.

Exercising the Power of the Purse

Every now and then, Congress does behave as the textbooks would lead one to expect.  It pushes back against executive branch secrecy in order to protect its own institutional prerogatives, if not specifically the public interest in transparent and accountable government.

Last week, the Senate Defense Appropriations Subcommittee imposed a $13 million cut on secret Pentagon missile defense programs because it said that DoD did not provide the information that Senators had expected to receive:

“The Committee notes the poor briefing materials in support of classified programs despite requests made by the Committee for the inclusion of specific information. Therefore, the Committee does not believe that the budget request for these programs was fully and appropriately justified and recommends an undistributed reduction of $13,600,000. The Director of the Missile Defense Agency is directed to submit a list of classified projects against which this reduction is levied not later than 90 days after enactment of this act.”

*    *    *

Overall, the strange congressional propensity for executive branch secrecy presents a conundrum and a challenge to advocates of greater openness and accountability.  It is probably unrealistic to expect executive agency officials to take significant steps to provide greater public disclosure of national security information if a majority in Congress is on record opposing such steps.

The Department of Justice told Congress recently that it would not disclose the number of state secrets cases involving alleged government misconduct, if any, that have been referred to an Inspector General for investigation.

Under a revised state secrets policy that was announced by Attorney General Holder in 2009, the Department committed to referring credible claims of government wrongdoing that could not be adjudicated in court because the state secrets privilege had been invoked to the Inspector General of the relevant agency for further investigation.

So have any such state secrets cases in fact been referred an Inspector General?  That question was posed for the record by Sen. Sheldon Whitehouse following a November 2011 hearing of the Senate Judiciary Committee.

In newly published responses to this and a wide range of other questions that were transmitted to Congress in June, the Justice Department said it would not answer directly.

“The Department’s policy is not to disclose the existence of pending IG investigations.  Consistent with that policy, we could not provide the number of cases, if any, that may have been referred to an IG pursuant to the Department policy on state secrets privilege.”

“However, to the extent IG investigations are undertaken, the Government has typically released public versions of final IG reports,” the DoJ reply stated.

No such public versions of final IG reports have been released in the Obama Administration, as far as could be determined.  In 2008, a redacted version of a DHS Inspector General report concerning the Maher Arar state secrets case was released.

The number of polygraph examinations performed by the Department of Defense more than doubled over the past decade to over 43,000 tests in a one-year period, according to a study performed last year for the Under Secretary of Defense (Intelligence).

The large majority of the tests were for pre-employment or periodic reinvestigation employee screening purposes.  The remainder were conducted in the course of criminal or other investigations.

Most employee screening polygraph exams are uneventful, yielding “no significant response” to predetermined questions.  But a fraction of them produce a “significant response” which prompts the examiner to ask the subject for an explanation.  Placed in such a circumstance, many people will volunteer derogatory information about themselves.

In 2010-11, the DoD tests resulted in “3,903 admissions of misconduct, ranging from security violations and failure to disclose foreign contacts to counterintelligence and criminal violations,” the DoD study said.

“Most often the derogatory information, ranging from relatively minor security infractions to serious felony offenses, would not have been known were it not for the employment of the polygraph,” the study said.

In a small subset of cases, the polygraph test generates a “signficant response” but the subject is unable or unwilling to provide a satisfactory explanation.  In such cases, the individual may be tested repeatedly until the issue is resolved or, if already holding a clearance, may be placed in a conditional access status.

The DoD polygraph report provides hard-to-find numerical data about DoD polygraph testing practices, including the number of tests performed by DoD intelligence agencies, which has risen sharply from past levels.

Ten years ago, DoD reported to Congress that it had performed 11,566 polygraph examinations.  See the FY2002 report on the DoD polygraph program here.

That 2002 figure did not include exams conducted for the NSA or the NRO, so it cannot be directly compared to the latest of 43,434 polygraph exams in 2011, which did include numbers for both NSA (10,824) and NRO (8,404).  But subtracting those figures — which yields 24,206 tests — reveals that polygraph testing at DoD more than doubled over the past decade.

The DoD report on polygraph testing, which is marked For Official Use Only, was not authorized for public release.  A copy was obtained by Marisa Taylor of McClatchy News, who reported on it in her recent series on polygraph testing at the National Reconnaissance Office.

In its pending legislation (section 504), the Senate Intelligence Committee asked the Director of National Intelligence to consider expanded use of polygraph testing, and to report on “the practical feasibility of extending the use of the polygraph to additional Executive branch personnel.”

Among scientists, the polygraph is generally viewed with skepticism bordering on disdain.  Polygraph testing is “intrinsically susceptible to producing erroneous results,” according to a 2002 report from the National Academy of Sciences.

In a floor statement yesterday, Sen. John McCain reiterated his criticism of the Obama White House for allegedly leaking classified information that endangered national security, and he repeated his call for appointment of a special counsel to independently investigate the claims.

Sen. McCain cited a particular incident in 2009 described by David Sanger of the New York Times in which a senior National Security Council official arranged a special briefing for Sanger in the Presidential suite at a Pittsburgh hotel about a secret nuclear site in Iran.

“I wonder how many people have the key to the Presidential suite in that Pittsburgh, PA hotel? We might want to start there” in the search for the leakers, Sen. McCain said.

But it turns out that the resulting news story that appeared in the Times did not include classified information, and the discovery of the Iranian nuclear site was the subject of a public briefing the very next day.  See “John McCain swings at White House over 2009 Iran leak to David Sanger,” by Josh Gerstein, Politico, August 1.

An ongoing FBI investigation into leaks of classified information is “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings,” writes Scott Shane in the New York Times.

The congressional response to leaks of classified information is disingenuous or hypocritical, wrote Walter Pincus in “Lawmakers, media are duplicitous on leaks,” Washington Post, August 1.

“While the Pentagon insists it’s not doing anything that should alarm reporters, it has yet to offer a direct response as to exactly what it means when it says it’s going to monitor news reports for unauthorized disclosures.”  See “Defense vague on plan to plug press leaks” by Austin Wright and Leigh Munsil, Politico, August 1.

A correction:  Secrecy News stated yesterday that “the Senate Intelligence Committee bill would not apply to White House officials.”  That’s not quite right.  While most of the proposed anti-leak measures apply only to “elements of the intelligence community,” a few provisions such as Section 501 (requiring notification of authorized release of classified information) would apply to the entire executive branch, including the White House.

Correction added below

The anti-leak provisions proposed by the Senate Intelligence Committee in the pending FY2013 intelligence authorization act have been widely criticized as misconceived and ill-suited to achieving their presumed goals.

But they also suffer from a lack of clarity and an absence of definitions of crucial terms.

For example, there is no clear definition of “the news media” to whom unauthorized disclosures are to be prohibited, as noted today by Josh Gerstein in Politico.  Certainly a reporter for a national news organization is a member of the news media, but what about a blogger who produces original reporting?  Or a tweeter who spreads previously undisclosed information?

Nor is the term “classified information” defined in the new bill as precisely as one would wish.  By contrast, the Freedom of Information Act, for example, limits withholding of information on national security grounds to records that are “properly classified.”  Merely being “classified” is not enough to warrant an exemption from disclosure under FOIA.  (In a pending lawsuit, a court has ordered the US Trade Representative to publicly release a classified document that the court said was not properly classified. The government has so far refused.  Which position is “authorized”?)

The new Senate bill does not make any practical distinction between properly and improperly classified information, though it directs the DNI to address the issue in a report to Congress (section 504).

In fact, the very concept of an “unauthorized disclosure” is not clearly articulated in the bill.  What is it, exactly?  Though the answer may seem obvious, it is actually subject to conflicting interpretations.

According to a May 8, 2004 FBI interview with then-Vice President Dick Cheney, “it is possible to talk about something contained in a classified document without violating the law regarding declassification [sic].”

“For example, the Vice President has made numerous public statements about Iraq’s weapons of mass destruction which were based on and, in some cases tracked, his reading of classified information…,” according to the FBI record of the interview.

“However, he did not violate any relevant laws or rules in making these statements because he did not reveal the confidential sources or methods involved in gathering the classified information,” the Vice President told the FBI (at p. 26).

“Vice President Cheney advised that he believed it was justifiable to rely on classified information to shape and inform what one says publicly.”

This is not a particularly orthodox view of classification policy.  But would such reliance on classified information in public statements constitute an unauthorized disclosure in the eyes of the Senate Intelligence Committee?  It’s unclear.

In any event, the Senate Intelligence Committee bill would not apply to White House officials [see correction below].  Nor would it penalize unauthorized disclosures originating in Congress.

The inconsistency in the Senate approach was highlighted today in two articles:  “Bill to plug leaks doesn’t reach White House” by Josh Gerstein, Politico; and “Senate’s anti-leaking bill doesn’t address the real sources of information” by David Ignatius, Washington Post.

Correction While most of the proposed anti-leak measures apply to “elements of the intelligence community,” a few provisions such as Section 501 (requiring notification of authorized release of classified information) would apply to the entire executive branch, including the White House.

The Senate Intelligence Committee markup of the FY2013 Intelligence Authorization Act, which was officially filed yesterday, devotes an entire title including twelve separate provisions to the issue of unauthorized disclosures of classified information, or leaks.

But several of those provisions aim to disrupt the flow of unclassified information to the press and the public rather than to stop leaks of classified information.

As reported in the Washington Post today, one of the proposed measures (section 506 of the bill) would dictate that only agency leaders could present background briefings to the press.  Other agency personnel, such as intelligence analysts, would be barred from providing any background information to the press, even when such information is unclassified.

Background briefings are essential “because they help journalists understand the full context of a story, get key details right, and ensure that individuals or the United States as a whole will not be harmed by the publication of incorrect information,” according to the Sunshine in Government Initiative, a press advocacy coalition.

Questioned by the Post, Senate Intelligence Committee chair Sen. Dianne Feinstein acknowledged that she had no evidence that such briefings, which are prized by reporters as valuable sources of information, had contributed to unauthorized disclosures.  And yet they would be forbidden.

See “Anti-leak measure targets background briefings” by Greg Miller, Washington Post, July 31.

Other provisions in the new bill were also roundly criticized by public interest groups concerned with access to government information.

A provision to prevent former government officials from providing paid commentary to news media outlets on intelligence matters is very likely unconstitutional, said Kate Martin of the Center for National Security Studies in a new analysis of the bill.

“The over-breadth of this provision in prohibiting commentary and analysis even when no classified information is disclosed would violate the First Amendment,” Ms. Martin wrote. “Indeed the provision seems drafted in order to chill public discussion of information that is not classified rather than being narrowly tailored to simply target disclosures of classified information.”

Another provision (in section 511) would grant intelligence agency heads the authority to unilaterally revoke the pension of an employee if the agency head “determines” that the employee has violated his or her non-disclosure obligations.

This section “would give intelligence agency heads nearly unrestrained discretion to suppress speech critical of the intelligence community– even after an employee has resigned or retired from an intelligence agency– and to retaliate against disfavored employees or pensioners, including whistleblowers,” wrote the Project on Government Oversight and several other public interest organizations in an open letter to the Senate Committee yesterday.

Fundamentally, the Senate bill “changes the relationship between the press and the federal government,” according to the Sunshine in Government Initiative.

Drafted in secret and without the benefit of any public hearing, the Senate bill includes provisions that are “crude and dangerous,” the Washington Post editorialized today.

The bill was approved by the Senate Intelligence Committee by a vote of 14 to 1, with Sen. Ron Wyden in opposition.  The text of the bill is here.

The accompanying Committee report including commentary on each provision and Sen. Wyden’s dissent may be found here.

A persistent controversy involving allegations of overclassification reached a new level of intensity on Friday when the National Security Agency released its explanation for the disputed classification of an NSA email message that was used to support an Espionage Act prosecution.

Also cleared for release on Friday was the 2011 complaint filed by former secrecy czar J. William Leonard which presented a withering critique of the NSA classification decision.

The dispute concerns the validity of the classification of an internal NSA email message entitled “What a Wonderful Success!” that was found in the home of former NSA official Thomas Drake and that served as the basis for a felony charge against him, which was ultimately dismissed.  The email message, which was formally declassified in 2010, was itself publicly released the week before last.

On the surface, at least, the contents of the “What a Wonderful Success!” email message appear harmless and and even banal.  But a newly-disclosed NSA “expert disclosure letter” dated November 29, 2010 said that the mail message was properly classified at the Secret level because “the information contained therein reveals classified technical details of NSA capabilities and a specific level of effort and commitment by NSA.”

That sounds impressively ominous.  But it is false and misleading, according to J. William Leonard, who previously served as the nation’s most senior classification oversight official.  He also served as an expert for the defense in the Drake case.

“As a plain text reading of the ‘What a Success’ document reveals, this explanation is factually incorrect– it contains absolutely no technical details whatsoever,” wrote J. William Leonard, the former director of the Information Security Oversight Office, in a complaint he filed with the current ISOO director, John Fitzgerald, a year ago.

As for the line about revealing “a specific level of effort and commitment by NSA,” Mr. Leonard wrote, “it is also factually incorrect in view of the fact that the document is absolutely devoid of any specificity.”

Instead, “all that is revealed in this otherwise innocuous ‘rally the workforce’ missive is multiple unclassified nicknames with absolutely no reference to the classified purposes, capabilities, or methods associated with the programs or other classified events or initiatives represented by the unclassified nicknames.”

A second newly-disclosed NSA letter dated March 7, 2011 proposed a different rationale for classification of the email message: “This document also discussed NSA efforts related to a malicious computer attack by an external actor or third party on a U.S. government computer system….  The fact that a specific malicious computer activity had been found on a U.S. government computer system or network, and the U.S.’s identification of and/or response to the malicious activity, was classified as SECRET. Unauthorized disclosure… of the success or failure of a malicious computer activity against a U.S. government computer system would provide a determined adversary insight into the strengths and/or vulnerabilities of U.S. government computer systems or networks and allow a more focused intrusion.”

Mr. Leonard concurred that “specific information associated with a malicious attack on a U.S. government computer system could be classified.”  But, he said, “no such information is contained” in the NSA email message.  Moreover, if it had contained such information, “it should rightfully continue to be classified to this day,” which it has not been.

In short, the NSA rationale for classification of the “What a Wonderful Success” email message appears vulnerable to independent scrutiny even — or especially — from a leading proponent of the classification system.

In his formal complaint to the current ISOO director, Mr. Leonard stressed that together with classification authority comes a responsibility to exercise that authority properly, and that “Section 5.5 of the [executive order on classification] treats unauthorized disclosures of classified information and inappropriate classification of information as equal violations of the Order subjecting perpetrators to comparable sanctions.”

In an email message to Secrecy News, Mr. Leonard said he was not particularly urging that the individual who originally composed and classified the email should be sanctioned.  Rather, he said that it was the senior officials who reviewed the email and allowed it to be used as a basis for a felony prosecution who had violated the public trust and needed to be held accountable.

“Through their conduct, these high level officials at both NSA and DoJ have displayed contempt for the critical national security tool of classification. If these individuals are not held accountable for this abuse of the classification system, I cannot imagine any other circumstance warranting accountability for improper classification of information, thus rendering that provision of the executive order utterly feckless.”

The current efforts in the executive branch and in Congress to combat unauthorized disclosures of classified information suffer from a related failing to distinguish between legitimate and illegitimate secrets, he said.

“Notwithstanding the recent plethora of ‘anti-leak’ initiatives, the Government appears unwilling to take one of the most effective and obvious steps they can to protect classified information, i.e. ensure that only truly sensitive information is protected by the classification system in the first place.”

Mr. Leonard’s complaint is still pending at the Information Security Oversight Office, said the current ISOO director, John Fitzpatrick.

“I have great respect for Bill Leonard and admire his high ideals for the classification system,” Mr. Fitzpatrick said in an email message this morning.  “With regard to his complaint, I hesitate to comment in depth, as it is my intent to provide him with a response directly when all inquiries are complete.  I will say that the Order provides clear guidance for resolving the classification questions in his complaint, though it is less clear on the interaction of such issues in the context of criminal prosecution.  It is my aim to address both.”

The story was first reported a year ago in “Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 1, 2011.

“The more that classification is used to hide the trivial, inconvenient or embarrassing, the less useful it is for genuine national security secrets,” the Washington Post wrote in an editorial on Saturday about Mr. Leonard’s complaint.  See “Is the U.S. classification system dysfunctional?”, July 28, 2012.