Prosecutors in the case of the former National Security Agency official Thomas A. Drake, who is suspected of leaking classified information to a reporter, last week asked the court to block public access to two letters that were introduced as exhibits by the defense earlier this month.  Late Friday, the court agreed to seal the two exhibits.  But they remain publicly accessible anyway.

The exhibits (pdf) describe the classification status of several NSA records that were found in the home of Mr. Drake, explaining why in each case the prosecution considers the records classified.  The defense disputes their classification and denies that Mr. Drake ever retained any classified records at his home.

Mr. Drake’s defense said (pdf) that it intends to introduce testimony at trial “which will include a discussion of the appropriate assignment of classification controls under the Executive Order and the consequences and pervasiveness of inappropriately assigning classification controls.”

To document the classification judgments that it disputes, the defense also filed the two letters from the Justice Department as exhibits on March 11.

On March 16, prosecutors asked the court (pdf) to seal those two records.  “As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as ‘FOUO’, which means ‘For Official Use Only.’ This means that the information is not for public dissemination. Until such time as NSA downgrades the information to ‘Unclassified,’ the exhibits should not be publicly filed,” prosecutors wrote.

Ironically, this prosecution argument illustrates the confusion about classification policy that prevails at NSA, in the Justice Department and in much of the government.

The NSA could not “classify” the records as FOUO and cannot “downgrade” them to “unclassified” because they are already unclassified.  “Information cannot be classified and FOUO at the same time,” according to the governing DoD regulation 5200.1-R.  “By definition, information must be unclassified in order to be designated FOUO.”

Without waiting for a response from the defense or from other interested parties, Judge Richard D. Bennett of the Maryland District Court granted the prosecution motion and sealed the records.  His March 18 decision on the matter, which was first reported by Politico, was also sealed.

The newly-sealed records remain available, however, on the Federation of American Scientists web site here. Besides being unclassified, these records do not prejudice either the prosecution or the defense, to whom they were originally written.

Military intelligence budget figures that were disclosed last week document the steady rise of the total U.S. intelligence budget from $63.5 billion in FY2007 up to last year’s total of $80.1 billion.

The total intelligence budget is composed of two separate budget constructs:  the National Intelligence Program and the Military Intelligence Program.  Last October, the DNI revealed that the FY2010 budget for the National Intelligence Program (NIP) was $53.1 billion.  And the Secretary of Defense revealed that the FY2010 budget for the Military Intelligence Program (MIP) was $27.0 billion, the first time the MIP budget had been disclosed, for an aggregate total intelligence budget of $80.1 billion for FY 2010. But prior year aggregate figures were unavailable.

Previous year budget figures for the NIP had been released since 2007.  ($43.5 billion in FY2007, $47.5 billion in FY 2008, $49.8 billion in FY2009).  But those numbers provided an incomplete picture, officials admitted.

“I thought, frankly, we were being a bit disingenuous by only releasing or revealing the National Intelligence Program, which is only part of the story,” said DNI James R. Clapper at his July 20, 2010 confirmation hearing.  “And so Secretary Gates has agreed that we could also publicize that [the MIP budget]. I think the American people are entitled to know the totality of the investment we make each year in intelligence.”

Last week, the Pentagon quietly disclosed the budget figures for the Military Intelligence Program for FY 2007 to 2009 ($20.0 billion in FY2007, $22.9 billion in FY2008, $49.8 $26.4 billion in FY 2009).

The latest disclosure finally makes it possible to report the total U.S. budget (NIP plus MIP) for the last four years:  $63.5 billion in FY2007, $70.4 billion in FY2008, $76.2 billion in FY2009, and $80.1 billion in FY2010.

Collectively, these figures — for the NIP, the MIP and the total — represent the most sustained and detailed disclosure of U.S. intelligence spending that has been achieved to date.

Public release of the FY2007-2009 MIP budget figures was requested by the Federation of American Scientists under the Freedom of Information Act on October 2, 2009.

Why does intelligence budget disclosure matter?  There are several reasons.  As a general principle, nothing should be secret without a compelling reason.  Unnecessary secrecy needs to be challenged and overcome at every turn.

More particularly, the sharp rise in intelligence spending prompts the question whether it is justified by a valid requirement and a satisfactory record of performance.  The question deserves an answer, if only indirectly by means of competent congressional oversight.

Furthermore, budget disclosure is unique in that it is the only category of executive branch information whose periodic publication is specifically required by the U.S. Constitution (Article 1, Section 9, Clause 7):  “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

“Publication of the aggregate figure for national intelligence would begin to satisfy the constitutional requirement,” the Church Committee concluded in its monumental 1976 report on U.S. intelligence activities (Book 1, Chapter XVI [pdf]), “and would not damage the national security.”

Therefore, “the Committee recommends the annual publication of the aggregate figure.”  That 35 year old recommendation languished for decades but has now been realized to an unprecedented degree.  (Aggregate budget figures were previously disclosed for the years 1997–1998.)

“The Committee also recommends that any successor committees study the effects of publishing more detailed information on the budgets of the intelligence agencies,” the Church Committee report added.  No such study has been performed.

“No other MIP budget figures or program details will be released, as they remain classified for national security reasons,” the Pentagon said upon release of the new data on March 11.  However, it said precisely the same thing upon release of the 2010 budget figure last October, which nevertheless were followed by the latest disclosures.

Despite the preemptive warning, we have asked the Pentagon to release the MIP budget request for the coming year, in light of the fact that the FY2012 NIP budget request has already been released.

State Department spokesman P.J. Crowley resigned yesterday facing an Obama Administration backlash against his remarks declaring the treatment of suspected leaker Pfc. Bradley E. Manning “ridiculous and counterproductive and stupid.”

The conditions of Private Manning’s detention became the subject of controversy when his lawyer complained that Manning was being involuntarily forced to surrender his clothing to his Quantico military guards each night, supposedly in order to protect him from self-injury. Neither Manning, his attorney, nor any competent medical authority had requested any such “protection.”  Instead, the compulsory nudity was widely perceived as a punitive measure, prompting protests from Amnesty International, among others.  (We urged the DoD Inspector General to investigate the matter, to no known effect.)

Mr. Crowley, an uncompromising critic of leaks of classified information, is no friend of Private Manning who, he said, “is in the right place” (i.e., in jail).  It was the gratuitous abuse of the prisoner that he deemed “ridiculous and counterproductive and stupid.”

He was right.  In America, the pre-trial detention of any person who has not been convicted of a crime should be beyond reproach.  In the Manning case (and in too many others), it hasn’t been.

Though in criticizing Defense Department detention policy Mr. Crowley was clearly outside of his bureaucratic “lane,” he deserves credit for speaking out on a matter of principle.  In an intelligent system of government, such views would be freely aired and honestly attended to.  But it seems that there is not much place for such speech in the current Administration.

To its credit, the State Department did publish Mr. Crowley’s non-retraction on its website.  “My recent comments regarding the conditions of the pre-trial detention of Private First Class Bradley Manning were intended to highlight the broader, even strategic impact of discrete actions undertaken by national security agencies every day and their impact on our global standing and leadership,” Mr. Crowley said. “The exercise of power in today’s challenging times and relentless media environment must be prudent and consistent with our laws and values.”

That is to say, the exercise of power today is not always prudent or consistent with our laws and values.  Sadly, Crowley’s departure under these circumstances makes corrective action more difficult.

However, the Defense Department reportedly rescinded its forced nudity policy towards Manning.  “On Friday, officials said they are again providing him with sleeping garments,” the Washington Post reported.

In a new sign of public dissent from the Obama Administration’s intensive pursuit of suspected leakers, former NSA official Thomas Drake, who is accused of unlawful retention of classified information, was designated as the recipient of an award for “truth-telling.”

Named for the late Ron Ridenhour, who brought the My Lai massacre to public attention, “The Ridenhour Prize for Truth-Telling is presented to a citizen, corporate or government whistleblower, investigative journalist, or organization for bringing a specific issue of social importance to the public’s attention.”  (In previous years, but not this year, I was involved in the Award selection process.)  The award to Mr. Drake will be presented in Washington, DC on April 13.  Mr. Drake’s Espionage Act trial is scheduled to begin on April 25 June 13.

In the wake of the ongoing publication of large volumes of classified U.S. government information by WikiLeaks, executive branch agencies are taking new steps to deter, detect and prevent the unauthorized transfer of information from classified government networks, officials said at a hearing of the Senate Homeland Security Committee last week.

In the majority of terminals connected to the DoD SIPRNet, the classified defense network, the capability to write to removable media has now been disabled.  (Bradley Manning is suspected of downloading State Department cables and other classified materials from SIPRNet and writing them to a compact disk.)

“For those few machines where writing is allowed [newly installed security software] will report, in real time, each write operation,” said Teresa Takai and Thomas Ferguson (pdf) of the Department of Defense.  “It will also report every attempt of an unauthorized write operation.”

“DoD has begun to issue a Public Key Infrastructure (PKI)-based identity credential on a hardened smart card… [that] will provide very strong identification of the person accessing the network and requesting data.  It will both deter bad behavior and require absolute identification of who is accessing data and managing that access,” they said.

Likewise, “the IC [intelligence community] plans to increase access control to critical IC information resources,” said Corin R. Stone (pdf) of the Office of the Director of National Intelligence.  “Technology can be used to control usage and limit user capabilities to perform activities such as copying, printing, or exporting data to a device.”

As voluminous as the WikiLeaks disclosures are, they represent only a minuscule fraction of similar records.  Even when it comes to the State Department cables, WikiLeaks didn’t get everything, Amb. Patrick Kennedy told the Senate Committee.  “During the period of time [that] we posted… some 250,000 cables… to the DOD SIPRNet, we [also] disseminated 2.4 million cables, 10 times as many, through other systems.”

The fact is that more than 99.9% of classified documents don’t leak.  Now they will all be subject to enhanced security measures.

*    This is Sunshine Week, an annual celebration of open government.  A National Security Archive survey of agency compliance with the Freedom of Information Act found mixed and uneven progress over the past year.

*    With the promotion of Information Security Oversight Office (ISOO) director William J. Bosanko to the new position of NARA Agency Services Executive, the ISOO director slot — with its responsibilities for oversight of classification and declassification policy — is open. “We have recently begun a search effort for the ISOO Director position and are committed to filling the vacancy with someone who will maintain the balance between secrecy and openness for which ISOO is known,” wrote National Archivist David S. Ferriero in a March 7 memorandum (pdf).

*    Last month, the Office of the Director of National Intelligence released its latest (2010) unclassified annual report to Congress (pdf) on the acquisition of technology relating to weapons of mass destruction and advanced conventional munitions.  Unfortunately, the report is minimally informative, with little new information, and less information than is available from other sources (such as the latest IAEA report on Iran [pdf]).  The section on conventional weapons, included in the 2009 report (pdf), is missing altogether.

*    Contributions in support of disaster relief in Japan can be made through the Red Cross and other organizations.

Unauthorized disclosures of classified information are among “the major challenges” facing defense intelligence, Acting Under Secretary of Defense for Intelligence Michael Vickers told Congress last month.  Mr. Vickers is awaiting Senate confirmation to be the new USD(I), a post that was last held by James R. Clapper, who is now the Director of National Intelligence.  The Under Secretary is “dual-hatted” as Director of Defense Intelligence.

“One of the most serious problems currently confronting the USD(I) is the unauthorized disclosure of classified information. The spate of unauthorized disclosures of very sensitive information places our forces, our military operations, and our foreign relations at risk.  It threatens to undermine senior leaders’ confidence in the confidentiality of their deliberations, and the confidence our foreign partners have that classified information they share with us will be protected,” Mr. Vickers wrote (pdf) in response to advance questions for his February 15, 2011 confirmation hearing before the Senate Armed Services Committee.

With respect to WikiLeaks in particular, Mr. Vickers told Senator McCain at his confirmation hearing that by publishing names of Afghans who had cooperated with the U.S. military, WikiLeaks had put their “lives in danger.”

“Fortunately,” he added, “we are able to attract the intelligence assets that we require to serve our policymakers and warriors.  But the damage should not be understated… and the Department has learned many lessons about how to prevent this from ever happening again.”

Among numerous other intelligence policy topics, Mr. Vickers addressed the possible breakout of the National Intelligence Program (NIP) budget from its current concealment in the larger defense budget, a step that is favored by public interest advocates who believe it would improve the integrity of the budgeting process.

“The proposal to separate the NIP portion of the Defense budget was… intended… to provide greater visibility and oversight of NIP resources, as well as improve NIP financial management practices,” he wrote.  “ODNI is leading a collaborative study effort to determine the feasibility of the conceptual proposal, with DoD stakeholders participating.  The study team is still assessing possible approaches and implications. No final decisions have been made on removing the NIP from the DoD budget.”

Mr. Vickers was asked “Under what circumstances, if any do you think intelligence officers and analysts should be able to testify to Congress on their professional conclusions regarding a substantive intelligence issue even if those views conflict with administration positions?”  He responded: “If Congress requires testimony on a substantive intelligence issue, it should be provided, whether or not it conflicts with an administration position.”

Another question posed by the Senate Armed Services Committee revealed that “the Department may have failed to report certain cyber activities in the Quarterly Report [to Congress] that should have been included, since they would legitimately fit the accepted definition of clandestine military activities [that are to be disclosed to Congress].”  (Previously noted by the Associated Press,EmptyWheel.)  Mr. Vickers said that if confirmed, he would commit to full reporting on DoD intelligence-related activities, “to include cyber activities.”

Senator Joe Manchin (D-WV) asked Mr. Vickers “What’s the strength of al Qaeda in Afghanistan?… 10,000?  100,000?”

“No, sir,” Mr. Vickers replied.  The number of al Qaeda personnel in Afghanistan “would be under 50 or so, 50 to 75, and that on a part-time basis.”  However, he added, “The Taliban are still aligned with al Qaeda…. Even though Afghanistan is not principally where al Qaeda is, it could become a future safe haven if we were to repeat the errors we made after the Cold War.”

Former National Security Agency official Thomas A. Drake, who was charged last year with unauthorized retention of classified information about controversial NSA programs, should not be allowed to argue in court that overclassification is widespread or that he was engaged in whistleblowing in the public interest, government attorneys said last week.

In a February 25 pre-trial motion (pdf), prosecutors asked the Court “for an order barring the defense from introducing any evidence, presenting any defense, or making any argument relating to the legality, constitutionality or propriety of the rules and regulations governing the disclosure of classified information, including any opinion that the intelligence community ‘overclassifies’ information.”

“The government anticipates that the defendant… may claim that the current classification system is overly inclusive and protects too much information.  Alternatively, the defendant may claim that the current classification system is ineffectual or illegal and prevents his ability to air allegations of waste, fraud and abuse to the attention of the public,” the motion stated.

“Any thoughts that the defendant may have had that the current regulatory scheme overclassifies information is [sic] irrelevant.  It does not matter that the defendant may have believed that the current regulatory scheme classified too much information.  His obligation in protecting classified information was to work within the clear set of rules governing the dissemination of potentially classified information.”

Prosecutors went on to argue that their motion to exclude all discussion of overclassification from Mr. Drake’s trial was actually in the best interests of the defendant, because they said any such discussion would reflect badly on him.

“If anything, the defendant’s thoughts that the current classification system overclassifies information would be incriminatory, not exculpatory, because that evidence would tend to show that he did not agree with the clear rules governing the dissemination of classified information and, therefore, willfully brought classified information home with him.”

In a separate motion (pdf) last week, prosecutors also asked the Court to exclude any claims that Mr. Drake’s alleged actions were driven by a need to inform the public.

“The government believes that the defendant may seek to argue or introduce evidence that his conduct was justified or that his claims [about certain NSA programs] were meritorious.  Because of the need to expose NSA waste and abuse regarding Classified Programs A and B, the [anticipated defense] argument proceeds, the defendant’s possession of classified documents was necessary, justified, or well-intentioned, and thus non-criminal.”

“This Court should reject any attempt to introduce argument or evidence on these points,” prosecutors urged.

Meanwhile, the Drake defense filed several substantial motions of its own arguing, among other things, that the espionage statute under which Mr. Drake was charged (18 USC 793e) “is a statute of alarming breadth and little definition” and that it is a poor fit for the actions he allegedly committed.

“Mr. Drake engaged in public criticism.  He was not motivated by private financial gain — he never sold any information.  Instead, he was prompting public debate about waste and inefficiency at NSA…. The Indictment thus describes speech of the highest First Amendment caliber.  The government may not insulate itself from Mr. Drake’s criticism by claiming that the information related to national security,” the defense argued (pdf).

In another pending “leak” case, that of former State Department contractor Stephen Kim, prosecutors last week filed an unyielding rebuttal (pdf) to several defense pre-trial motions seeking dismissal of that case on First Amendment and other grounds.

“To the extent that the defendant’s conduct constitutes speech, that speech is wholly unprotected by the First Amendment,” the Kim prosecutors said.  “Speech used willfully to convey national defense information to any person not entitled to receive it is speech effecting a crime [which is] undeserving of First Amendment protection.”

Also last week, 22 additional charges (pdf) were preferred against Pfc. Bradley E. Manning, including an allegation that he unlawfully downloaded classified information and did “knowingly give intelligence to the enemy, through indirect means” in violation of 18 USC 793e and other statutes.

Collectively, these cases embody an unresolved dispute over the proper understanding of the espionage statutes and their application to the unauthorized handling and disclosure of classified information.

See also “Despite openness pledge, President Obama pursues leakers” by Josh Gerstein, Politico, March 7.

Updated below

In June 2009, Senator Russ Feingold (D-WI) asked the Obama Administration to rescind certain classified legal opinions issued by the Justice Department Office of Legal Counsel (OLC) that asserted legal justifications for the Bush Administration’s warrantless wiretapping program.

But more than a year and a half later, those OLC opinions remain under review and no action has been taken to invalidate them, the Justice Department indicated in a newly published hearing volume.

“I just want to reiterate how important it is for the legal justifications for this program to be withdrawn,” said Sen. Feingold at a June 17, 2009 hearing of the Senate Judiciary Committee, referring to the warrantless wiretapping program.  “I am concerned these memos that make unsupportable claims of executive power will come back to haunt us if they remain in effect.  And if you believe, as I think the President [Obama] has indicated in the past, that the program was illegal, they cannot stand.”

Attorney General Eric Holder told Sen. Feingold at that June 2009 hearing that he had asked the Office of Legal Counsel to review the opinions, and to release them publicly to the extent possible.  “It is my hope that that process, which is ongoing, will lead to the release of several opinions in a relatively short period of time.”

In an October 2009 response (pdf, at p. 11) to a follow-up question for the record, the Department of Justice told Sen. Feingold that “the review processes described in your question are still ongoing.”

In a March 2010 response (pdf, at p. 23) to the same question, DOJ said “The Department is still conducting its review…. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.”

Well, “What is the status of that review?  When will it be complete?” asked Sen. Feingold yet again, following an April 2010 hearing.

In a December 2010 response (pdf, at pp. 29-30) that has just been published, DOJ repeated that “The Department is still conducting its review, and will work with you and your staff to provide a better sense regarding the timing of the completion of the review.” (at pp. 29-30)

But a review that continues indefinitely is practically indistinguishable from no review at all.  And since Senator Feingold has now left the Senate, the Department will not be working with him and his staff to resolve this issue.  All that remains is the Senator’s warning about the hazards of embracing “unsupportable claims of executive power.”

Update: On March 18, 2011 the Justice Department released a heavily redacted version of a May 2004 OLC opinion on warrantless surveillance in response to an ACLU FOIA lawsuit.

William J. Bosanko, the director of the Information Security Oversight Office (ISOO), has been appointed to lead a new organization at the National Archives called Agency Services.  In that capacity, he will “lead the National Archives efforts to service the records management needs of Federal agencies, and represent the public’s interest in the accountability and transparency of these records,” said Archivist of the United States David S. Ferriero in a news release yesterday.

As the new Executive for Agency Services, Mr. Bosanko will be responsible for several existing Archives components, including Records Management Policy & Oversight, the Federal Records Center Program, the Office of Government Information Services, the National Declassification Center, and ISOO.  It is a large and important portfolio, and the appointment reflects the high regard in which Mr. Bosanko is held inside and outside of government.

But it also means that he will no longer be the Director of ISOO.  Although he will now be the ISOO Director’s superior, he will no longer possess the Director’s classification oversight authorities and responsibilities, which derive from an executive order.

A new ISOO Director will have to be chosen and put in place.  At a time of profound transformation of the classification system (one may still hope), the transfer of leadership at ISOO could create some worrisome instability.

“I have committed 12 years to ISOO and believe deeply in its mission,” Mr. Bosanko said.  “Please know that I will do my best to look out for it in my new role.”

Millions of feet of film of historical imagery from intelligence satellites may be declassified this year, the National Geospatial-Intelligence Agency (NGA) said.

“The NGA is anticipating the potential declassification of significant amounts of film-based imagery… in 2011,” according to an NGA announcement that solicited contractor interest in converting the declassified film into digital format.  It was published in Federal Business Opportunities on February 14, 2011.  A copy is posted here (pdf).

For planning purposes, the NGA told potential contractors to assume the need to digitize “approximately 4 million linear feet of film up to approximately 7 inches in width.”  The imagery is “stored on 500 foot spools, with many frames up to several feet in length.”  A nominal start date of October 1, 2011 was specified for the digitization project.

The NGA announcement also suggested that the winning contractor would “retain rights to distribute declassified imagery and recoup investment, for a specified period of time (negotiable).”  This would be problematic if it implied that the contractor had exclusive access to the declassified film and could prevent others from digitizing selected portions of it.

The declassification of historical intelligence satellite imagery has been largely dormant for many years.  President Clinton’s 1995 executive order 12951 promised a periodic review of classified imagery “with the objective of making  available to the public as much imagery as possible consistent with the interests of national defense and foreign policy.”  In particular, a review of obsolete film-return systems, such as the KH-8 GAMBIT and the KH-9 HEXAGON, was to be completed within five years.  This was not done, or produced no results if it was done.

During her confirmation process to become Principal Deputy Director of National Intelligence, Stephanie O’Sullivan recently noted the existence of an ODNI effort that started last year “to reinvigorate the declassification of imagery for public release.”  (“Nomination Sheds New Light on Intel Policy,” Secrecy News, February 22, 2011).

The awkwardness of using the Espionage Act to penalize the unauthorized disclosure of classified information to the press is again becoming apparent in the case of Jeffrey A. Sterling, a former CIA officer who was indicted last December in one of the several leak cases that are now underway.

An initial difficulty for the prosecution is that the espionage statute cited against Mr. Sterling (18 USC 793) concerns the protection of “national defense information.”  It does not mention “classified information.”  The two terms are not synonymous.

“The fact that the information at issue may be classified is not conclusive and is insufficient to carry the [prosecution’s] burden of proving [unauthorized disclosure of] ‘national defense information’,” the defense argued (pdf) in one of a remarkably robust series of motions for dismissal that were filed last week on behalf of Mr. Sterling.

In other words, it is quite possible for information to be classified without it qualifying as “national defense information” for purposes of the Espionage Act.  Classified diplomatic or law enforcement information, for example, would generally be outside the scope of “national defense information,” as would some types of classified intelligence information.  (On the other hand, it is also conceivable that some information that is formally unclassified could nevertheless be “national defense information” which is protected by the statute.)

Although the text of the Indictment of Mr. Sterling labels the Counts against him as “Unauthorized Disclosure of Classified Information,” “Unauthorized Retention of Classified Information,” and so forth, those actions are not what the statute prohibits, the defense accurately noted:

“A brief review of cases brought under 18 USC 793 demonstrates that prosecution for the alleged oral disclosure of ‘national defense information’ is not common which may be why the Indictment incorrectly lists these charges as classified information disclosures.”

Furthermore, the defense said it “reserves the right to challenge the constitutionality of 18 USC 793 as applied in this case.”  But previous challenges to the constitutionality of the statute have not been successful.

The defense motion for a “bill of particulars” also revealed that the government had gathered telephone, credit card and bank records of New York Times reporter James Risen, the presumed recipient of Mr. Sterling’s alleged disclosures. This was first reported by Josh Gerstein in “Feds spy on reporter in leak probe,” Politico, February 25.  See also Marcy Wheeler’s commentary.

The Obama Administration has taken several initial steps to modernize the national security classification system and to combat overclassification.  But those halting efforts are being undermined by the Department of Defense, which is not implementing the President’s policy.

DoD, which is the government’s largest producer of classified information, has failed to update its internal regulation on information security, despite a specific Presidential directive to do so.  The result is that military components today are following old, incomplete and misleading guidance on classification policy.

For example, one such component, U.S. Transportation Command (TRANSCOM), said on February 20 that it was unaware of a current requirement to update and correct its classification guidance.  It had “no records” pertaining to the performance of a Fundamental Classification Guidance Review, which was required by President Obama’s Executive Order 13526.  Why?  Because, it said, “no Review was required [by] DoD 5200.1-R,” the Pentagon’s regulation on information security (pdf).

This is a startling misunderstanding and a grievous lapse of responsibility on the part of the Pentagon. The reason that TRANSCOM is unaware of the new requirement to perform a Fundamental Classification Guidance Review is that DoD’s internal regulation 5200-1.R on classification policy has not been updated since January 1997!  In effect, DoD has been blocking the transmission of the President’s instructions to classifiers and declassifiers in the field.

This in itself is an act of defiance, particularly since the President himself ordered senior agency officials to prepare new classification policy regulations.  “Such regulations shall be issued in final form within 180 days of ISOO’s publication of its implementing directive for the order,” President Obama wrote in his December 29, 2009 memorandum that accompanied the issuance of Executive Order 13526.

The Information Security Oversight Office (ISOO) did publish its implementing directive (pdf) for the Executive Order on June 28, 2010.  Therefore, agencies officials were obliged to complete their implementing regulations 180 days later, by the end of December 2010.  At the Pentagon, officials failed to comply.

“The promulgation of implementing regulations for [President Obama’s] E.O. 13526… is not an optional activity,” said William J. Bosanko, director of the Information Security Oversight Office, which oversees the classification system.

“Such regulations serve as the foundation for the implementation of the Order at each agency,” he explained.  “Failure to update regulations in a timely manner impedes the implementation of the President’s direction and risks undermining the confidence in the classification system.  It also places classified information at needless risk and otherwise makes it difficult to hold accountable those who fail to meet their responsibilities.”

“How can we expect personnel to properly classify, safeguard, and declassify national security information if we do not provide them with the ‘rules’?  How can we maintain the trust of the American people and our State, local, tribal, private sector, and foreign partners if we don’t even comply with the most basic requirements ourselves?”

Mr. Bosanko said that ISOO was pressing for agency compliance with the requirements of the executive order.  He said the status of such compliance would be addressed in the forthcoming FY 2010 ISOO Report to the President.

Meanwhile, throughout the Department of Defense, officials are diligently following the wrong instructions. According to the DoD directives website, the 1997 regulation 5200-1.R — with all of its outdated guidance — is currently one of the top five most frequently downloaded DoD publications.