The National Reconnaissance Office (NRO), the agency that builds and operates U.S. intelligence satellites, frequently makes mistakes when it classifies national security information, according to an assessment performed last year by the NRO Inspector General.

“From the classified documents we reviewed at NRO headquarters, 114 of 134 documents contained classification errors,” the IG report said.

Agency classification officials “lack sufficient knowledge of classification principles and procedures necessary to perform their duties,” the NRO Inspector General found. “One OCA [original classification authority] had almost no knowledge of his responsibilities.”

“Because of the lack of full compliance in multiple areas, the NRO is susceptible to the risk of persistent misclassification,” the IG said.

The IG report was performed in response to the “Reducing Over-Classification Act of 2010,” which required the Inspectors General of all agencies that classify information to evaluate their classification programs. A copy of the report was obtained under the Freedom of Information Act by the GovernmentAttic.org web site.

Most of the classification errors discovered by the Inspector General are administrative rather than substantive. Like other IG evaluations conducted under the Reducing Over-Classification Act, the NRO Inspector General review does not allow for the possibility that an agency could be in full compliance with classification rules and nevertheless be overclassifying information.

Instead, the IGs have focused on errors in marking documents, failures to specify proper authorities or to cite responsible officials, and similar defects in conformity with established rules.

Still, these are not necessarily trivial failures. Between 2005 and 2012, for example, NRO improperly exempted records from automatic declassification at 25 years when it had no authority to do so, the IG said.

The Inspector General reviewed NRO classification guides (which dictate the classification levels of particular items of information) “and we found that all but one of the 62 guides had classification errors.”

Puzzlingly, the Inspector General also reported that NRO “has not conducted timely reviews [of] its security classification guides” and that “three of the 62 SCGs had not been reviewed within five years.”

This finding appears to be inconsistent with a 2012 NRO report which affirmed that all of its security classification guides — of which there were 67, not 62 — had been reviewed in response to the Fundamental Classification Guidance Review. An explanation of the inconsistency was not immediately available.

NRO officials “non-concurred” with the findings and conclusions of the Inspector General report.

The report contains “numerous sensationalized, exaggerated and misleading statements,” wrote A. Jamieson Burnett, the director of the NRO Office of Security and Counterintelligence.

Other previously disclosed IG reports issued in response to the Reducing Over-Classification Act addressed classification programs in the Department of Defense, Department of Justice, Department of Homeland Security, and the Environmental Protection Administration.

Perhaps the biggest incentive for reducing overclassification is the negative impact that unnecessary secrecy can have on government operations.

“A major impediment to operating with international partners is the U.S. tendency to classify information, complicating the crucial flow of important data to our allies as well as within and among our own Services,” according to a new article in Joint Force Quarterly, which is published by National Defense University for the Chairman of the Joint Chiefs of Staff.

“The U.S. military needs to […] try harder to communicate in the unclassified domain,” wrote Jeffrey M. Shaw in his article “Putting ‘A Cooperative Strategy for 21st Century Sea Power’ to Work,” Joint Force Quarterly, January 2014.

The primary lesson that emerges from the unauthorized disclosures of classified intelligence information by Edward Snowden is that U.S. intelligence agencies must be more transparent in their operations, said Director of National Intelligence James R. Clapper yesterday.

“The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can,” DNI Clapper told the Senate Intelligence Committee.

“With greater transparency about these intelligence programs the American people may be more likely to accept them,” he said, promising “further declassification.”

Another possibility, he acknowledged, is that even with greater transparency the American people will choose not to accept certain kinds of intelligence programs.

“If dealing with reduced capacities is what we need to ensure the faith and confidence of the American people and their elected representatives, then we in the intelligence community will work as hard as we can to meet the expectations before us,” DNI Clapper said.

Already, the Snowden disclosures have caused “profound damage” to U.S. intelligence, the DNI said.

“What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners.”

“Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed to prevent even more damage to U.S. security,” the DNI said.

The use of the word “accomplices” appeared to suggest that the DNI views the journalists who possess and report on the Snowden documents as Snowden’s partners in crime, and even as criminals themselves.

“Is it now the official view of the Obama administration that these journalists and media outlets are ‘accomplices’ in what they regard as Snowden’s crimes? If so, that is a rather stunning and extremist statement,” wrote Glenn Greenwald, who first reported on the Snowden releases last June.

But though it has never yet figured in an actual prosecution, the issue of criminal liability for journalists in this area is embedded in the law.

It’s true that there is no general legal prohibition on publication of classified information. (Congress passed such a statute in 2000, but President Clinton vetoed it.)

But there is a clear and specific prohibition on the willful disclosure of classified communications intelligence information. And that prohibition, in 18 U.S.C. 798, extends also to anyone who “publishes” such information.

What is “stunning,” or at least noteworthy, is that the Obama Administration has apparently made a strategic decision not to attempt to enforce this provision of the law against publishers of the Snowden documents. (It was invoked against Snowden himself as one of the three counts in a June 14, 2013 criminal complaint.)

It seems that even what the DNI called “the most massive and most damaging theft of intelligence information in our history by Edward Snowden and the ensuing avalanche of revelations published and broadcast around the world” is not sufficient to trigger the use of the criminal statute against publishers of classified communications intelligence. So that provision is effectively a dead letter, even if it still finds a faint echo in the DNI’s testimony before Congress.

The public controversy that erupted over NSA bulk collection of Americans’ telephone records was a clear sign, if one were needed, that the boundaries of government secrecy had been drawn incorrectly, and that the public had been wrongly denied an opportunity to grant or withhold its consent in such cases.

To remedy this systemic problem, the Privacy and Civil Liberties Oversight Board said in a new report yesterday that the government needs to develop new criteria for secrecy and openness.

“The Board urges the Administration to commence the process of articulating principles and criteria for deciding what must be kept secret and what can be released as to existing and future programs that affect the American public” (Recommendation 11).

But translating this imperative into practice remains a challenge.

“Generalities about the value of transparency do not go far in answering the hard questions of what can be disclosed and what must remain secret,” the Board properly observed. “Instead, progress may best be achieved by considering specific problems,” such as intelligence surveillance policy.

With that in mind, the Board sketched out illustrative examples and options that could guide future declassification and disclosure decisions. Experience has already shown, the report said, that “it is possible to describe [intelligence] practices and policies publicly, even those that have not been otherwise leaked, without damage to national security or operational effectiveness.”

More specifically, the Board report said the Administration should start to address transparency with a “public articulation of the legal authorities under which it conducts surveillance affecting Americans,” the very point at which the current controversy began (Recommendation 12).

However, a minority of the Board did not endorse this particular recommendation. “I do not believe that an intelligence program or legal justification for it must necessarily be known to the public to be legitimate or lawful,” said dissenting Board member Rachel Brand.

The lack of Board unanimity on this and other points “really weakens its recommendations and undermines the role that we envisioned it would play,” said Sen. Susan Collins in the Wall Street Journal.

But from another point of view, the divided views of Board members are a strength, not a weakness. The fact that thoughtful people reviewing the same factual record can arrive at divergent conclusions is instructive, and the split may accurately reflect larger divisions among members of the public. Advocates and editorial writers seem to be strangers to doubt, but others may not be. Confronting the opposing views of Board members, readers are invited and compelled to think for themselves.

Overall, the Privacy and Civil Liberties Oversight Board demonstrated its utility as a public oversight body, helping to fill the void left by congressional and judicial oversight that sometimes seems cursory by comparison.

The Board (majority) presented an incisive critique of current surveillance practices that is lucid and nuanced, clarifying the legal and policy issues involved without hyperbole or vitriol.

“The Board concludes that Section 215 [of the USA Patriot Act] does not provide an adequate legal basis to support this [bulk collection] program. Because the program is not statutorily authorized, it must be ended,” the report said.

Even in the absence of overt abuse, it was argued, the mere collection of American telephone records in bulk is an infringement on privacy and other civil liberties. “Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”

While there are procedures in place to limit the official use of such records, “in our view they cannot fully ameliorate the implications for privacy, speech, and association that follow from the government’s ongoing collection of virtually all telephone records of every American. Any governmental program that entails such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone records program conducted under Section 215 meets that standard.”

If the bulk collection program were demonstrably effective in saving lives, the report implied, then certain infringements on privacy might well be warranted. But that is not the case, the Board majority concluded.

“Given the limited value this [bulk collection] program has demonstrated to date… we find little reason to expect that it is likely to provide significant value, much less essential value, in safeguarding the nation in the future,” the Board report said.

Of course, that is a judgment, not an empirical fact. Others can and do disagree, including two of the members of the Board itself.

“Whether the [bulk collection] program should continue boils down to whether its potential intrusion on privacy interests is outweighed by its importance to protecting national security,” wrote Rachel Brand, precisely. This too is a judgment, and it explains why disagreement over the program persists.

But on the need to rethink current secrecy practices, at least, there is consensus, among members of the Board and beyond.

John C. Inglis, in his final days as deputy director of the National Security Agency, told National Public Radio that he now realized that existing public disclosure practices were “insufficient.”

Did he wish NSA had made an effort years ago to disclose the bulk collection program in a way that the public could debate it?  “In hindsight, in hindsight,” he told NPR’s Steve Inskeep.

The task now is to apply the lessons of hindsight to present-day national security secrecy policies, and not only with regard to NSA surveillance activities.

“What we’re going to have to do as a nation, and particularly as an agency, is to rebalance, right, the balance that we have struck between security, secrecy and transparency,” Mr. Inglis said, in an NPR interview published January 10.

 

For more than three years, author Anthony Shaffer has been challenging the government’s contention that hundreds of passages in his Afghanistan memoir “Operation Dark Heart” are classified and should not be publicly disclosed. Now a judge has ordered the full text of the book to be delivered to her in “complete and unredacted” form.

DC District Judge Rosemary M. Collyer told the Defense Intelligence Agency and its co-defendants DOD and CIA to file under seal “a complete and unredacted copy of the published book, Operation Dark Heart: Spycraft and Special Ops on the Frontline of Afghanistan and the Path to Victory” no later than January 24.

“The 233 passages that remain classified should be unredacted and highlighted in yellow,” she wrote in a January 17 order. “The passages that were initially redacted but subsequently declassified should be highlighted in blue. If the unredacted copy of the book contains both secret and top secret information, Defendant must file a secret and top secret version of the book. That is, one copy should contain all classified information unredacted and highlighted in yellow. The other copy should contain only the secret information unredacted and highlighted and the top secret information redacted.”

The clear implication is that Judge Collyer intends to perform her own assessment of the validity of the government’s classification claims rather than simply rely on the affidavits of government officials attesting to their validity.

Though sensible and straightforward, this is also an unusual step. Most often, courts defer to the presumed expertise of executive branch classification officials, and decline to “second guess” them. This case is now shaping up to be an exception to that rule.

The dispute over “Operation Dark Heart” is complicated by the fact that review copies of the original, uncensored text have circulated in the public domain and portions of the text have been posted online.

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The White House yesterday issued Presidential Policy Directive 27 on United States Conventional Arms Transfer Policy. The text of the directive was posted on the White House web site.

“The new policy provides greater clarity and transparency with respect to U.S. goals for arms transfers and on the criteria used to make arms transfer decisions,” according to a White House statement.

This is not the first time that the Obama White House has published one of its Presidential Policy Directives, but it has not done so consistently, even when the directives are unclassified.

Last month, DC District Judge Ellen Huvelle scolded the White House for withholding an unclassified directive (PPD-6) and for what she termed its “cavalier attitude” towards public disclosure.  She ordered the document released.  (“Court Rebukes White House Over ‘Secret Law’,” Secrecy News, December 18, 2013.)

President Obama has been issuing presidential directives at a discernibly slower pace than did other recent presidents, for reasons that are unclear.

Compared to President Obama’s 27 directives, President George W. Bush had issued some 44 directives at this point in his second term, while President Clinton had issued 60, and President Reagan had produced over 200.

“We’ve talked about that,” a National Security Staff official said.  But an explanation for the differences was hard to pin down, the official said, except that it evidently reflects a difference in governing style and in the choice of directives as a policy instrument.

Update: On January 17, the White House issued Presidential Policy Directive 28 on Signals Intelligence Activities.

Beginning in 1974, the U.S. intelligence community provided the public with a broad selection of foreign news reports, updated daily.  These were collected and translated by the Central Intelligence Agency’s Foreign Broadcast Information Service (FBIS), which was reconstituted in 2004 as the Open Source Center (OSC).

But the CIA has now terminated public access to those news reports, as of December 31.  The Open Source Center cut off its feed to the National Technical Information Service’s World News Connection, which was the conduit for public access to these materials (through paid subscriptions).

Translation of foreign news reports had been one of the few direct services that U.S. intelligence agencies offered to the American public.  Many journalists, scholars and researchers benefited from it, and citations to old FBIS translations can be found in innumerable journal articles and dissertations.  The utility of this public service was diminished somewhat in recent years by copyright constraints on publication. But it remained a valuable if eclectic source of alternative perspectives on regional and international affairs in a searchable global database that extended across decades.

Now it’s over.

Of course, the CIA will continue to collect and to translate foreign news reports at its Open Source Center. It just won’t permit the public to access them.

CIA spokesman Christopher White explained: “The Open Source Center (OSC) remains committed to its mission of acquiring, analyzing, and disseminating open source information within the U.S. government. As technology evolves rapidly, the open source feed of information to the National Technical Information Service, Department of Commerce, has become outdated and it would be cost prohibitive to update this feed. In addition, publicly available open source information and machine translation capabilities are now readily available to individuals on the Internet.”

The original 1974 decision to allow public access to FBIS products was “a particularly significant event,” said FBIS deputy director J. Niles Riddel, speaking at a 1992 conference organized by Robert Steele‘s Open Source Solutions. Public access enabled “expanded participation in informed analysis of issues significant to U.S. policy interests,” he said.

In fact, in the climate that prevailed in the early 1990s, public access to FBIS products was actually promoted by intelligence community officials. Mr. Riddel said then that it was “strongly supported by our customers in both the Intelligence and Policy Communities who value the work of private sector scholars and analysts who avail themselves of our material and contribute significantly to the national debate on contemporary issues such as economic competitiveness.”

But that’s all finished.  Instead of adapting and expanding its open source product line in response to the needs and wants of the interested public, this four-decade CIA experiment in public engagement is concluded. Americans are invited to look elsewhere.

“We are sad to be losing this popular file,” said Sherry Grant of ProQuest, which managed public subscriptions to the NTIS World News Connection. “However, as you can see, it’s beyond our control.”

There are some alternatives. “You can access a similar service from BBC Monitoring,” suggested Rosy Wolfe, head of business development at BBC Monitoring. “I’d be happy to provide you with more information.”  At least someone is happy.

*    *    *

A comparative assessment of foreign news coverage by FBIS and the BBC was presented in “The Scope of FBIS and BBC Open-Source Media Coverage, 1979-2008” by Kalev Leetaru, Studies in Intelligence, vol. 54, no. 1, March 2010.

“Unfortunately, many misconceptions about the application of OSINT [open source intelligence] continue to endure throughout the [intelligence] community,” wrote Lieutenant Colonel Craig D. Morrow in “OSINT: Truths and Misconceptions,” Military Intelligence Professional Bulletin, April-June 2013, pp. 31-34.

“Though the future of FMM [foreign media monitoring] is unclear at this time, current users agree that it fills a capability gap to automatically collect, organize, and translate open source content near real time, making sense of the overwhelming amount of foreign language data available to intelligence analysts today.” See “Foreign Media Monitoring: The Intelligence Analyst Tool for Exploiting Open Source Intelligence,” by Tracy Blocker and Patrick O’Malley, Military Intelligence Professional Bulletin, July-September 2013, pp. 36-38.

 

The Foreign Relations of the United States (FRUS) series is the official documentary record of U.S. foreign policy published by the U.S. Department of State. The origins, development and continuing evolution of the FRUS series are explored in a massive new history prepared by the State Department Office of the Historian. See “Toward ‘Thorough, Accurate and Reliable’: A History of the Foreign Relations of the United States Series” by William B. McAllister, Joshua Botts, Peter Cozzens, and Aaron W. Marrs, Department of State, December 19, 2013.

Dating back to the Civil War — the Abraham Lincoln Administration — FRUS long predates the existing national security classification and declassification regimes.  But from the start it has manifested and reinforced the impulse towards open government to a remarkable if imperfect degree. It appears to surpass any comparable effort to systematically and publicly document foreign policy by any other government in the world.

But more than a mere expression of open government, the FRUS series has been a battleground on which fundamental issues of secrecy and disclosure have been fought. Generations of officials, historians, journalists and others have disputed the timeliness of FRUS publications and their completeness, and weighed the demands of national security against the imperatives of historical integrity, with outcomes that shifted and diverged through the series.

“One might imagine individual FRUS volumes as akin to tree rings: each iteration records the environmental conditions from which it emerged; a broader story unfolds by examining change over time,” wrote historians William B. McAllister and Joshua Botts.

The advances, compromises and setbacks that characterized the evolution of the FRUS series are recounted in impressive and illuminating detail in the new historical study.

One of the themes that emerges is that the series progressed “dialectically,” in a continuing clash between conflicting interests in secrecy and disclosure.

So, for example, one of the main factors in the the post-World War II development of FRUS was the unauthorized disclosure of a classified compilation known as the Yalta Papers, which was a study of FDR’s wartime diplomacy.  The leak of the Yalta Papers by a FRUS historian in 1954 (which in some respects prefigured the Vietnam-era leak of the Pentagon Papers) catalyzed methodological changes in the production, timeliness and oversight of the FRUS series (see Chapter 7).

Meanwhile, excesses of secrecy generated their own corrective reactions. The suppression of information about US covert action in a FRUS volume on Iran, for example, helped instigate a statutory requirement that the FRUS series must be “thorough, accurate and reliable,” thereby strengthening the hand of openness advocates inside and outside the Department (Chapter 11).

The new history of FRUS is not a polemic or a piece of advocacy. It is a scrupulous account of the multiple and diverse perspectives that generated the FRUS series throughout its history. (And those who care about the series or participated in its development will find much of it gripping reading.)

But after hundreds of pages, the State Department authors allow the conclusion that in the conflict between secrecy and disclosure, it is secrecy that been the greater problem for FRUS, for the Department and for the US Government:

“The most significant negative repercussions attributable to the FRUS series have not involved damaging releases of potentially-sensitive national security or intelligence information. Rather, the reputation of the U.S. Government has suffered primarily from failures of the series to document significant historical events or acknowledge past actions.”

“FRUS realizes its promise when it fulfills global expectations for openness that promote democracy and encourage human freedom.”

The new FRUS history will be the subject of a panel discussion at the upcoming Meeting of the American Historical Association on January 4 in Washington, DC.

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The report of a White House advisory group on intelligence surveillance said that reducing undue secrecy was one of its main objectives.

“A central goal of our recommendations is to increase transparency and to decrease unnecessary secrecy, in order to enhance both accountability and public trust,” the report of the President’s Review Group on Intelligence and Communications Technologies stated (p. 80). “Excessive surveillance and unjustified secrecy can threaten civil liberties, public trust, and the core processes of democratic self-government (p. 12)”

The Review Group specifically recommended that “detailed information” about legal authorities to compel disclosure about communications records be made public and that “general data” concerning orders to disclose telephone records and other business records be routinely disclosed as well (Recommendations 7-10).

In a more tentative, roundabout way, the report implied that the NSA program to collect telephone metadata in bulk should not have been classified.

“We recommend that the decision to keep secret from the American people programs of the magnitude of the section 215 bulk telephony meta-data program should be made only with due consideration of and respect for the strong presumption of transparency that is central to democratic governance. A program of this magnitude should be kept secret from the American people only if (a) the program serves a compelling governmental interest and (b) the efficacy of the program would be substantially impaired if our enemies were to know of its existence,” the report stated (Recommendation 11).

But the force of this recommendation is diminished by the fact that the proponents of the NSA telephony metadata collection program clearly believed that both of the stated criteria had been met in that case.

More generally, “There is a compelling need today for a serious and comprehensive reexamination of the balance between secrecy and transparency,” the Review Group stated (page 125).

But the adjectives — compelling, serious, comprehensive — are left to do most of the work here.  The proposed reexamination of national security secrecy policy is beyond the Review Group’s scope and is not to be found in this report.

“At the very least, we should always be prepared to question claims that secrecy is necessary,” the report said. “That conclusion needs to be demonstrated rather than merely assumed.”

Not only that, but “Part of the responsibility of our free press is to ferret out and expose information that government officials would prefer to keep secret when such secrecy is unwarranted.”

The Review Group’s most significant recommendation was that the NSA should no longer be permitted to routinely acquire telephone metadata of US persons in bulk, a step that if adopted would significantly transform existing intelligence surveillance programs.

“As a general rule…, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes,” the report stated (p. 17)

One way to appreciate the audacity of the Review Group is to compare its report with the original tasking that it received from President Obama in his August 12 memorandum to the Director of National Intelligence.

“The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust,” the President wrote.

This was a weak formulation that barely specified a coherent problem.  But the Review Group took it and ran with it, filling in gaps along the way.

Although the President gave prominence in this one-sentence tasking to “unauthorized disclosure,” that term is only mentioned twice in the 300 page Review Group report (though a revamping of security clearance procedures is the subject of Recommendations 37-41). The matter of “public trust” seemed to be given greater weight and is referenced 18 times.

Meanwhile, although “civil liberties” was not mentioned in the President’s memorandum at all, it appears more than 50 times in the report. And “privacy,” which was likewise outside the Review Group’s explicit terms of reference, is mentioned well over 100 times.

As if to justify its somewhat expansive interpretation of its assignment, the Review Group argued that privacy is actually a type of security.

“The United State Government must protect, at once, two different forms of security: national security and personal privacy” (p. 43). If this seems contrived, the Review Group offered the Latin etymology of the word “securus,” which it claimed encompasses both physical security and personal privacy (p. 45). So…

At any rate, the Review Group exceeded expectations by providing an independent, critical assessment of the issues it was directed to review. Although its non-binding recommendations by themselves do not compel any changes, they already seem to have altered the policy landscape. And together with a December 16 court ruling that NSA bulk collection programs “likely violate the Fourth Amendment,” they appear to have substantially shifted the center of the debate.

Update: Although the President’s August 12 memorandum did not mention privacy or civil liberties, the White House press secretary issued an August 27 statement about the Review Group which did include these terms.

DC District Judge Ellen Segal Huvelle yesterday ordered the Obama Administration to release a copy of an unclassified presidential directive, and she said the attempt to withhold it represented an improper exercise of “secret law.”

The Obama White House has a “limitless” view of its authority to withhold presidential communications from the public, she wrote, but that view is wrong.

“The government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight– to engage in what is in effect governance by ‘secret law’,” Judge Huvelle wrote in her December 17 opinion.

“The Court finds equally troubling the government’s complementary suggestion that ‘effective’ governance requires that a President’s substantive and non-classified directives to Executive Branch agencies remain concealed from public scrutiny,” she wrote.

Judge Huvelle ordered the Administration to provide the directive to the non-profit Center for Effective Government, which had filed suit under the Freedom of Information Act for its release.

The directive in question, Presidential Policy Directive (PPD) 6, “is a widely-publicized, non-classified Presidential Policy Directive on issues of foreign aid and development that has been distributed broadly within the Executive Branch and used by recipient agencies to guide decision-making,” the Judge noted. “Even though issued as a directive, the PPD-6 carries the force of law as policy guidance to be implemented by recipient agencies, and it is the functional equivalent of an Executive Order.”

“Never before has a court had to consider whether the [presidential communications] privilege protects from disclosure under FOIA a final, non-classified, presidential directive.”

The Center for Effective Government had argued that “PPD-6 is not protected by the presidential communications privilege because it was not made in the course of making decisions, but instead is the final decision itself….”

In response, the government contended that PPD-6 “is protected by the privilege because, regardless of how widely the document has been distributed within the Executive Branch, it originated with the President….”

Significantly, Judge Huvelle insisted on examining the document herself in camera instead of simply relying on the Administration’s characterization of the document.  Having done so, she found that it “is not ‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.”

She criticized the government for “the unbounded nature” of its claim. “In the government’s view, it can shield from disclosure under FOIA any presidential communication, even those — like the PPD-6 — that carry the force of law, simply because the communication originated with the President…. The Court rejects the government’s limitless approach….”

Several significant points emerge from this episode.

First, President Obama’s declared commitment to “creating an unprecedented level of openness in Government” has not been internalized even by the President’s own staff. This latest case of “unbounded” secrecy cannot be blamed on the CIA or an overzealous Justice Department attorney. It is entirely an Obama White House production, based on a White House policy choice.

Second, and relatedly, it has proved to be an error to expect the executive branch to unilaterally impose transparency on itself. To do so is to ignore, or to wish away, the Administration’s own conflicting interests in secrecy and disclosure.  Instead, it is the role of the other branches of government to check the executive and to compel appropriate disclosure.

But that does not happen spontaneously either. In this case, it required a Freedom of Information Act lawsuit to be brought by the Center for Effective Government, which was superbly represented by attorneys Julie Murray and Adina Rosenbaum of Public Citizen.

An official Fact Sheet on PPD-6 (which has not yet been released) is available here.

The Electronic Privacy Information Center is currently pursuing release of another presidential directive, the Bush Administration’s NSPD-54 on cyber security. In October, Judge Beryl Howell unexpectedly ruled that that directive was exempt from disclosure because, she said, it was not an “agency record” that would be subject to the FOIA.  Her opinion came as a surprise and was not persuasive to everyone. In a footnote in yesterday’s ruling, Judge Huvelle said that the arguments over the two directives were sufficiently distinguishable that “this Court need not decide if it will follow Judge Howell’s rationale”– suggesting that if pressed, she might not have done so.  Yesterday, EPIC filed a notice of its intent to appeal the decision.

Coincidentally, the Department of Defense yesterday renewed until January 2015 its guidance implementing Presidential Policy Directive 19 on Protecting Whistleblowers with Access to Classified Information.

(Related stories: Politico, Miami Herald).

Update: The Center for Effective Government issued a statement here.

In a slight but welcome incremental reform, reports to Congress from the Department of Defense are to be posted online, according to a provision in the pending FY 2014 defense authorization act.

Up to now, such reports were to be made available to the public “upon request” (10 USC 122a). But under section 181 of the FY 2014 defense authorization bill, as agreed to by House and Senate conferees, the reports would have to be posted on a “publicly accessible Internet website” whether they were requested or not (h/t: FCNL).

The online publication requirement would not apply to DoD reports that contained classified or proprietary information, or that are otherwise exempt from disclosure under FOIA.

In a January 21, 2009 memorandum to agency heads, the newly inaugurated President Obama directed that “agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.” But agencies implemented this directive unevenly and incompletely.

In a new Open Government National Action Plan that was released today, the White House affirmed its support for open government values, and set an agenda for the remainder of the current Administration.

“The new plan includes a wide range of actions the Administration will take over the next two years, including commitments that build upon past successes as well as several new initiatives,” the Plan stated. “The Administration will work with the public and civil society organizations to implement each of these commitments over the next two years.”

With respect to national security secrecy, the Plan includes a new commitment to “transform the security classification system” based on the principle that “classification must… be kept to the minimum required to meet national security needs….”

Towards that end, a new interagency Classification Review Committee is being established with White House leadership to evaluate proposals for classification reform, and to coordinate their implementation throughout the executive branch.  The creation of such a body was the primary recommendation of the Public Interest Declassification Board last year, and it was strongly endorsed by public interest groups.

Both because of its interagency character and especially due to its White House leadership, the new Committee has the potential to overcome the autonomous classification practices of individual agencies that have contributed to the explosive growth in secrecy.

Positive results are naturally not guaranteed.  The Administration has not embraced an explicit theory of how overclassification occurs, or even how overclassification is to be defined, and therefore it is not yet well-equipped to address the problem.

The new Plan notes that in June of this year President Obama directed the Intelligence Community to declassify and make public “as much information as possible” about intelligence surveillance programs. But in an optimally functioning classification system, the President’s directive would have been redundant and unnecessary; the system would already be declassifying as much information as possible.

Of course, the existing classification system is not functioning optimally. That is the problem.  So either the President needs to issue individualized directives to all agencies on every conceivable classified topic to “declassify as much as possible,” or else the new White House interagency Committee needs to find alternate means to effectively communicate the same imperative.

“The Obama Administration remains fully committed to building a 21st-Century Open Government and fundamentally improving the relationship between citizens and government,” the new Plan said.

Not everyone has gotten that message, though.  The Central Intelligence Agency is determined to cut off public access to foreign news reports and translations gathered through its Open Source Center (formerly the Foreign Broadcast Information Service) and marketed to subscribers through the NTIS World News Connection. At the end of this month, this legendary resource will cease to be available to the public after more than half a century. (“CIA Halts Public Access to Open Source Service,” Secrecy News, October 8).

A CIA official suggested that anyone who is interested in foreign news can “use the internet” instead.

The Public Interest Declassification Board, which advises the President on classification and declassification policy, is proposing to recommend that certain historically significant topics and events be prioritized for expedited declassification.

The Board has invited public input into the formulation of its recommendations for prioritization, which currently fall into five broad categories:  Topics 25 Years Old and Older, Topics 25 Years Old and Younger, Topics Related to Formerly Restricted Data (FRD) Information, General Topics of Interest, and Topics Specifically Gathered from Presidential Libraries.

The working list of potential declassification topics that are less than 25 years old includes many worthy subjects including, for example, 9/11 Commission records and “Guantanamo / Detainee issues.”  On the other hand, it does not yet include many other high priority items for declassification, such as the Senate Intelligence Committee’s massive report on CIA interrogation practices.

“We invite the public to comment on these topics and offer its own suggestions on what should be on this list of topics younger than 25 years,” the Board statement said. “We hope the List will serve as a guide to aid agencies in reviewing the information the public wants to see.  This is your opportunity to spark a much-needed conversation about the sustainability of the current declassification system and what our priorities collectively should be to make the most impact.”  Comments can be submitted through the Board’s blog, Transforming Classification.

But Is Prioritizing Declassification Topics the Right Approach?

There is a longstanding disagreement over whether it is appropriate to prioritize some areas for declassification because of their topicality, or whether it is better to gradually declassify everything in an orderly and systematic way.  (Or whether the right answer, as I thought, was to do some of both.)

Some have argued that prioritization of special declassification projects is the wrong way to go.

“If effective, routine, comprehensive systematic declassification review were in place for all agencies, and if the public believed in the integrity and thoroughness of those review processes, then important documentation… would be routinely reviewed and declassified without an expensive special search,” said Rutgers historian Warren F. Kimball at a 2000 hearing of the Senate Committee on Governmental Affairs.

“Those boutique declassification efforts… devour resources that should go to systematic declassification review,” Prof. Kimball said then. “Some of those special searches have been legitimate. Some have been trivial. Many have been repetitive and unrewarding…. All have been exorbitantly expensive in both money and work hours. All were or should have been unnecessary.”

Not only are topic-based “special searches” more resource-intensive than regular, systematic declassification, but they may also subtly distort the historical record by removing individual documents from their context, and by favoring “popular” topics over others whose deeper significance may be unrecognized.

That may all be true, say proponents of prioritization.  But the reality is that many records that are supposedly “historically valuable” are of no interest to anyone, and will not be read even if they are declassified.  And besides, the current systematic declassification review  program cannot keep up with the current and anticipated declassification workload.  So in practice, there is little choice but to prioritize.

Whichever argument seems more persuasive, the Public Interest Declassification Board, composed of presidential and congressional appointees, has now tipped the balance in favor of prioritization.  The support of the Board doesn’t guarantee that it will happen, but it makes the issue a newly live one.

If prioritization of particular declassification topics does go forward, then there are important questions to consider beyond the identification of the topics themselves. One question is, how can the declassification of the prioritized topics be made as productive as possible?  Another question is, what happens to all the documents that are not prioritized?

Revise the Standards for Prioritized Declassification

Specialized declassification projects have the greatest impact when they do more than simply move a particular topic to the front of the queue for declassification. The best of them, like the one performed by the JFK Assassination Records Review Board, also involve revised standards for declassifying the prioritized information in order to maximize disclosure.

Interestingly, it appears that agencies already tend to be more forthcoming in declassification projects that they initiate themselves than they are when applying legacy declassification standards in response to FOIA requests. This is true even (or especially) in the case of secrecy-intensive organizations like CIA or NSA. (The CIA and the National Declassification Center will sponsor a symposium in January on the history of the Berlin Wall featuring some newly declassified documents.)

In any event, the utility of the prioritization approach to declassification could be maximized if the adoption of a prioritized topic were accompanied by an appropriate revision of declassification criteria to ensure that only the least necessary amount of information relevant to the topic will be withheld. (Ideally, such a revision of project-related declassification standards would be performed or supervised by an independent third party, such as the Interagency Security Classification Appeals Panel.)

An updated review of classification and declassification criteria is clearly necessary in order to overcome residual, obsolete barriers to disclosure.

When DNI James Clapper released voluminous records concerning foreign intelligence surveillance programs last week, he noted that “President Obama directed me to declassify and make public as much information as possible about certain sensitive programs while being mindful of the need to protect sensitive classified intelligence activities and national security.”

The tacit implication was that without the President’s direction, the DNI would not “declassify and make public as much information as possible….”  Similar direction to “declassify as much as possible” ought to be applied in the case of each prioritized declassification project.

Set a Drop Dead Date for Classification to Expire

A necessary consequence of prioritization of some records for declassification is that other records will be pushed back in the queue. What this means is that, without remedial action, more and more records may never be declassified.

President Obama’s executive order 13526 declared for the first time that “No information may remain classified indefinitely” (section 1.5d).  But it is not clear how that dictum is to be translated into actual declassification policy.

Records that were exempted from “automatic declassification” at 25 years were supposed to be automatically declassified beginning at the end of this year when they turned 50 years old.  Exceptions had been provided for records that revealed the identities of human intelligence sources or of key design concepts for weapons of mass destruction.  In practice, however, it appears that much more than such narrow categories will now be withheld.  According to a January 23, 2013 notice from the Information Security Oversight Office, numerous agencies have been granted authority to exempt records from declassification even at the 50 year point.

Unfortunately, this continuing deferral of declassification compounds the problem and may take it beyond any practical resolution.

What is needed instead is a “drop dead date” beyond which classification controls will simply expire.  Records of a certain age would not need to be “reviewed” for declassification. In fact, they would not need to be formally “declassified” at all. Rather, their status as classified records would just terminate.

A drop dead date would be consistent with the President’s direction that classification cannot continue indefinitely.  And as backlogs of classified records continue to accumulate, this approach would finally cut through the endless and increasingly intractable cycle of declassification review.

If, as the PIDB recommends, some records are going to be prioritized for declassification, then new consideration should be given to a drop dead date for all of those classified records that remain “unprioritized” for decade after decade.

In its version of the pending FY 2014 intelligence authorization bill (section 307), the Senate Intelligence Committee proposed to extend the charter of the Public Interest Declassification Board from December 2014, when it would otherwise expire, to December 2018.