The government declared today that the identity of the reporter to whom accused leaker Stephen Kim allegedly disclosed classified information is James Rosen of Fox News.  Mr. Rosen’s association with the case was publicly known for years.  But it was still classified.  Now it’s not.

“The United States hereby gives notice to the Court, defense counsel, and the defendant, that the following facts have been declassified,” prosecutors wrote in a pleading filed this morning. “The ‘reporter for a national news organization’ to whom the defendant is alleged to have made an unauthorized disclosure of national defense information, as charged in Count One of the Indictment, is James Rosen of Fox News.”

Mr. Rosen was controversially described in a recently revealed FBI affidavit as having acted in probable violation of the Espionage Act, and as a co-conspirator with the defendant, Mr. Kim.  His identity was known all along.  But as is all too often the case, declassification lags far behind the public record.

At the request of the FBI, the Foreign Intelligence Surveillance Court ordered a Verizon subsidiary to surrender the telephone records of its U.S. business customers to the National Security Agency for at least a three month period beginning last April 25.

The startling disclosure was reported last night by Glenn Greenwald of the Guardian. A copy of the Top Secret FISC order itself was also posted online by the Guardian.

Several features of the operation are problematic, to say the least. The FISC order is sweeping in scope, encompassing “all” call metadata (telephone numbers of callers and recipients, time, duration and more, though not the substantive contents of any conversation). It is unfocused on any designated target of investigation. It is prospective, requiring reporting of future telephone calls that have not yet taken place. And as such, it would seem to exceed any reasonable presumption of what the consent of the governed would allow.

At first glance, this appears to be a massive overreach by the government, as well as a massive failure of congressional oversight and judicial review to curb the Administration’s excess. (NYT, WP, WSJ)

The Inspector General at each government agency that classifies national security information is required by the Reducing Over-Classification Act of 2010 to review the agency’s classification program as part of an effort to combat overclassification.  Those reviews are now underway.  But if properly performed, they could put the Inspectors General at odds with senior officials at their agency who habitually overclassify.

In its latest semi-annual report to Congress last week, the Department of Justice Office of Inspector General (OIG) cited its ongoing work to evaluate Department classification activity.

“The OIG is reviewing the Department’s compliance with the Reducing Over-Classification Act to assess whether applicable classification policies, procedures, rules, and regulations have been adopted, followed, and effectively administered; and to identify policies, procedures, rules, or management practices that may result in misclassification of material,” the DoJ IG report said.

But at the Department of Justice, “misclassification of material” is arguably attributable to the senior leadership of the Department, if not the White House itself.

On May 22, Attorney General Eric Holder wrote to Congress to formally acknowledge that four U.S. citizens had been killed in counterterrorism operations, including Anwar al-Aulaqi and three others.  The death of Al-Aulaqi (and all but one of the others) at the hands of U.S. forces had of course been previously reported and had long been implicitly or explicitly acknowledged by U.S. officials.

But remarkably, Attorney General Holder wrote that this information “until now has been properly classified.”

In other words, information that everyone around the world who cared to know had already known for years was, according to Attorney General Holder’s letter to Congress, “properly classified” until May 22, 2013.  The disconnect between objective reality and official classification policy could hardly be more apparent.

Whether the DoJ Inspector General is prepared to take the Attorney General to task for tolerating or promoting this type of misclassification of material remains to be seen.

From another point of view, it could be argued that the Attorney General’s classification judgments are beyond reproach, particularly since the President’s executive order on classification makes the Attorney General the final arbiter of the order’s requirements (EO 13526, section 6.2c). If the Attorney General says something is properly classified, then by the terms of the executive order it is properly classified– by definition.

From that perspective, what the President himself once referred to as “the problem of over-classification” simply vanishes. The DoJ Inspector General could then report that the classification system is functioning perfectly, and that it is performing as intended.

The first of two rounds of Inspector General evaluations of classification activity is due to be completed by September 30, 2013.

The Foreign Intelligence Surveillance Court issued an order on Friday directing the Department of Justice to respond no later than June 7 to a motion filed on May 23 by the Electronic Frontier Foundation (EFF).  The order was signed by Judge Reggie B. Walton, presiding judge of the surveillance court.

EFF had asked the Court to formally consent to the release of records in which the Court found government surveillance activities to be inconsistent with the Fourth Amendment to the Constitution.  In response to a prior Freedom of Information Act request, the Justice Department had asserted that Court rules did not permit such disclosure, though that position is not explicitly stated in Court rules.  To overcome this impasse, EFF asked the Court to affirmatively consent to disclosure of the requested records.

The case was first reported in Group wants special court to release ruling on unlawful U.S. surveillance by Ellen Nakashima, Washington Post, May 22.

For further background, see EFF Takes FOIA Fight Over Secret Wiretaps to the Foreign Intelligence Surveillance Court by Mark Rumold, May 22.

When the Central Intelligence Agency prepared its famous 1973 compilation of dubious and illegal Agency activities known as the “Family Jewels,” it included several instances in which reporters were tracked or monitored in order to identify their sources.  While these activities were technically “approved” by senior Agency officials, they also “conflict[ed] with the provisions of the National Security Act of 1947,” presumably since they exceeded CIA’s charter and jurisdiction.

But now, in the wake of recent developments involving seizure of Associated Press telephone records and the identification of Fox News reporter James Rosen as a purported co-conspirator in a leak of classified information, such once disreputable tracking of journalists threatens to become the new normal.

“At the direction of the DCI, a surveillance was conducted of Michael Getler of the Washington Post during the periods 6-9 October, 27 October-10 December 1971 and on 3 January 1972,” the Family Jewels document stated. “In addition to physical surveillance, an observation post was maintained in the Statler Hilton Hotel where observation could be maintained of the building housing his office. The surveillance was designed to determine Getler’s sources of classified information of interest to the Agency which had appeared in a number of his columns.”

Likewise, “At the direction of the DCI, surveillance was conducted of Jack Anderson and at various times his ‘leg men,’ Brit Hume, Leslie Whitten, and Joseph Spear, from 15 February to 12 April 1972. In addition to the physical surveillance, an observation post was maintained in the Statler Hilton Hotel directly opposite Anderson’s office. The purpose of this surveillance was to attempt to determine Anderson’s sources for highly classified Agency information appearing in his syndicated columns.” (“Surveillance of Journalists: A Look Back,” Secrecy News, September 19, 2012).

Those were seemingly rare and isolated incidents.  Although “DOJ and the FBI receive numerous media leak referrals each year, the FBI opens only a limited number of investigations based on these referrals,” the FBI told Congress in 2010 answers to questions for the record.  That is due in part to the fact that the FBI deliberately avoided investigations of news media organizations.

“We have interpreted DOJ’s formal policy on obtaining information from members of the news media, codified at 28 C.F.R. §50.10, as requiring that such leak investigations focus on potential leakers rather than reporters,” FBI Director Robert Mueller told the Senate Judiciary Committee. “While this policy appropriately balances the importance of First Amendment freedoms with the strong national security interest in keeping classified information from disclosure, it necessarily limits the prosecutor’s access to the reporter who received the sensitive information. In the rare case in which DOJ issues a subpoena to a reporter for information about the source of a leak, the information is not necessarily produced.” (“FBI Found 14 Intel Leak Suspects in Past 5 Years,” Secrecy News, June 21, 2010).

But today, any news organization that successfully “solicits” disclosure of classified information evidently must consider the possibility that the records of its communications will be subject to government review, contemporaneously or even long after the fact.  In the absence of congressional intervention to restore the previous status quo, the mere prospect of such monitoring will induce a dramatic change in the landscape of national security reporting, and in the character of all contacts between government officials and members of the public.

One thin line that has not yet been crossed is the prosecution of journalists for violating the Espionage Act by reporting classified information.

A Wall Street Journal editorial yesterday suggested oddly that such a prosecution had already occurred:  “We can recall only a single such prosecution of a journalist under the Espionage Act in 95 years,” the Journal editors wrote (“A Journalist ‘Co-Conspirator’,” May 20).  But this appears to be an error, and the editors did not identify the case they had in mind.

The nearest approach to the prosecution of a reporter or a news organization for violating the Espionage Act seems to have occurred during World War II when the Chicago Tribune published a story concerning Japanese war plans based on classified intelligence.  In 1942, a grand jury was convened at the request of the U.S. Navy to weigh charges against the Tribune or its reporter, Stanley Johnston, but the grand jury was soon disbanded. No charges were brought, and no prosecution ensued.  The episode was vividly recounted by Gabriel Schoenfeld in chapter 6 of his 2010 book Necessary Secrets.  Mr. Schoenfeld indicated via email today that he was not aware of any actual prosecutions of journalists under the Espionage Act.

A timeline of leak investigations involving journalists from 2003 to the present was presented by Shane Harris of the Washingtonian’s Dead Drop blog.

The possibility of indicting reporter Seymour Hersh in 1975 was raised by then-deputy White House chief of staff Dick Cheney, as described by PBS Frontline (h/t Ryan Goodman).  It was not pursued.

William Z. Slany, the former Historian of the Department of State and a champion of efforts to declassify the secret history of U.S. foreign policy, passed away earlier this month.

Dr. Slany served in the State Department’s Office of the Historian for 42 years, and was The Historian for the last 18 of those years, until his retirement from the Department in September 2000, according to a notice circulated by David H. Herschler, the Deputy Historian of the State Department.

In his capacity as Historian of the Department, Dr. Slany helped prepare 16 volumes of the Foreign Relations of the United States series, the official documentary record of U.S. foreign policy, and he oversaw the publication of 125 FRUS volumes.  He led an interagency study to prepare a two volume account of “Nazi gold” and other stolen assets from World War II.  He participated in the development and implementation of the 1991 statute that formally required the State Department to present a “thorough, accurate, and reliable” record of U.S. foreign policy and diplomatic history.

Though dignified and softspoken, Dr. Slany could be combative in defense of an open and honest historical record. And while it is unusual for a senior official of one agency to criticize the conduct of another agency publicly and on the record, he was willing to do so when he thought it was justified.

In 1999, for example, he berated the Central Intelligence Agency for making what he termed “unreasonable” excisions in its declassified records of Cold War covert actions.

“What has become apparent and obvious is the Agency’s unwillingness to acknowledge amounts of money, liaison relationships, and relationships with organizations, information that any ‘reasonable person’ would believe should be declassified,” Dr. Slany said, according to the minutes of a September 1999 meeting of the State Department Historical Advisory Committee. “The process has revealed the bare bones of CIA’s intransigence,” he said.

“Bill Slany was one of the good guys in the declassification/secrecy game,” said Rutgers historian Warren Kimball, a former chair of the State Department Historical Advisory Committee.

“He played a key role in the maneuvers that, in 1991, created the landmark legislation that forced open CIA, Energy Department (AEC) and other long-secret files so they could be declassified and published in the State Department series, Foreign Relations of the United States.  His quiet, firm mantra was simple: in a democracy, the citizenry must have access, even if it came thirty years after the fact.  The State Department he loved was not always as idealistic as he wished, but he never stopped pushing the institution, and the U.S. Government, toward openness,” Prof. Kimball wrote via email.

In a startling expansion of the Obama Administration’s war on leaks, a federal agent sought and received a warrant in 2010 to search the email account of Fox News correspondent James Rosen on grounds that there was probable cause the reporter had violated the Espionage Act by soliciting classified information from a State Department official.

This previously undisclosed development was first reported in “A rare peek into a Justice Department leak probe” by Ann E. Marimow, Washington Post, May 19.

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.  (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)

The affidavit also highlights the government’s ability to monitor activity within classified networks with a fine mesh, and to correlate document downloads with external communications.

“So far, the FBI’s investigation has revealed in excess of 95 individuals, in addition to Mr. Kim, who accessed the Intelligence Report [containing the information reported by Mr. Rosen] on the date of the June 2009 article and prior to its publication. To date, however, the FBI’s investigation has not revealed any other individual, other than Mr. Kim, who both accessed the Intelligence Report and who also had contact with the Reporter on the date of publication of the June 2009 article,” the affidavit noted.

Some of the contacts between Mr. Kim and Mr. Rosen could be expeditiously uncovered because both of them were using desk telephones within the Department of State. Likewise, their comings and goings could be readily tracked because both used official ID badges to enter and exit the State Department building.

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”  And so forth.

What makes this alarming is that “soliciting” and “encouraging” the disclosure of classified information are routine, daily activities in national security reporting.  The use of pseudonyms and discreet forms of communication are also commonplace.

But for today’s FBI, these everyday reporting techniques are taken as evidence of criminal activity and grounds for search and seizure of confidential email.

“Based on the foregoing, there is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an insider, abettor and/or co-conspirator of Mr. Kim,” Mr. Reyes wrote.

The affidavit says that the FBI had exhausted all alternatives to a search warrant for collecting the desired evidence, except for asking Mr. Rosen to voluntarily produce his own email.

“Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant.”

The warrant application was approved and signed by U.S. Magistrate Judge Alan Kay on May 28, 2010.  It was sealed until November 7, 2011 but went unnoticed until the Washington Post reported on it late yesterday.

The government seizure of Associated Press telephone records in the course of a leak investigation undermined freedom of the press in the United States, congressional critics said yesterday.

“It seems to me the damage done to a free press is substantial,” said Rep. Zoe Lofgren at a hearing of the House Judiciary Committee.

Pursuant to subpoena, the government captured call records for 20 telephone lines of Associated Press reporters and editors over a two month period last year.  The records are logs of calls made and received, but do not include their contents.  It was a “massive and unprecedented intrusion” into newsgathering activities, wrote the AP’s president Gary Pruitt in a May 13 letter.

The Justice Department denied that the action deviated from established policy.

“We understand your position that these subpoenas should have been more narrowly drawn, but in fact, consistent with Department policy, the subpoenas were limited in both time and scope,” wrote Deputy Attorney General James M. Cole in a May 14 reply.

The  move arose from an AP story about a disrupted bomb plot originating in Yemen that led to the revelation of a classified counterterrorism operation and the existence of a valued agent. “This is among the top two or three serious leaks that I’ve ever seen” said Attorney General Eric Holder. He did not elaborate.

Meanwhile, the upshot is that any presumption of confidentiality in the source-reporter relationship has been compromised across the board, especially but not only in national security reporting.

“Reporters who might have previously believed that a confidential source would speak to them would no longer have that level of confidence, because those confidential sources are now going to be chilled in their relationship with the press,” Rep. Lofgren said yesterday.

Last year, congressional leaders harshly criticized the Obama Administration for supposedly failing to aggressively combat leaks of classified information, including in the present case.

“The Administration’s disregard for the Constitution and rule of law not only undermines our democracy, it threatens our national security,” said Rep. Lamar Smith, at a hearing of the House Judiciary Committee last year. “The Justice Department has not taken the initiative to prosecute leaks of national security secrets. Recent leaks about a foiled bomb plot out of Yemen and a cyberattack against Iran are, in the words of Senate Intelligence Chairwoman Dianne Feinstein, quote, ‘very detrimental, very concerning, and hurt our country,’ end quote.”

The irony was not lost on Rep. Jerrold Nadler.

“I think we should put this in context, and remember that less than a year ago this committee’s Republican leadership demanded aggressive investigation of press leaks, accusing the administration itself of orchestrating those leaks,” he noted. “Then, members of this committee wanted the reporters subpoenaed, put in front of grand juries and potentially jailed for contempt. Now, of course, it is convenient to attack the attorney general for being too aggressive or the Justice Department for being too aggressive.”

“But this inconsistency on the part of my Republican colleagues should not distract us from legitimate questions worthy of congressional oversight, including whether the Espionage Act has been inappropriately used looking at leakers, whether there is a need for a greater press shield,… and Congress’ broad grants of surveillance authority and immunity,” Rep. Nadler said.

Rep. Lofgren said that the damage done to freedom of the press by the clandestine seizure of AP phone records “will continue until corrective action is taken.”

The Government Printing Office is blocking public access to some previously released records of the National Aeronautics and Space Administration, while the records are reviewed to see if they contain export-controlled information.  The move follows the controversial disabling and partial restoration of the NASA Technical Reports Server (NTRS) (NASA Technical Report Database Partly Back Online, Secrecy News, May 9.)

“GPO has been asked to suspend any activity related to making these documents available if they have not been reviewed,” GPO said in a notice today.

“During this time, PURLs that GPO has created for the electronic versions of NASA Technical Reports found in cataloging records accessed through the Catalog of U.S. Government Publications (CGP) may not link to the documents that the catalog record describes.” (h/t Full Text Reports, infoDOCKET)

The website of the NASA Technical Reports Server (NTRS), a massive collection of aerospace-related records, was disabled in March due to congressional concerns that it had inadvertently disclosed export-controlled information.  (“NASA Technical Reports Database Goes Dark,” Secrecy News, March 21; “Database Is Shut Down by NASA for a Review,” New York Times, March 22.)

The site is now active again, though hundreds of thousands of previously released documents have been withheld pending review.

Rather than conducting a focused search for actual export-controlled information and then removing it, as would have seemed appropriate, NASA blocked access to the entire collection. The agency acted under pressure from Rep. Frank Wolf (R-VA) of the House Appropriations Committee while it assessed the situation.

Now many of the NTRS records have been restored, including open literature publications, magazine articles, and other documents that were already in the public domain in any case.  But hundreds of thousands of others still await a formal export control review to certify them for public release.  The multi-phase process was described in a NASA email exchange that was released under the Freedom of Information Act.

An air of futility surrounds the whole exercise. Much of the NASA collection has been mirrored on foreign websites, wrote Keith Cowing of NASA Watch, while other withheld reports can be purchased in hardcopy on eBay.

An executive order issued by President Obama today directs that “the default state of new and modernized Government information resources shall be open and machine readable.”

“As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation,” states Executive Order 13642 on Making Open and Machine Readable the New Default for Government Information.

The new order was welcomed by the Sunlight Foundation, a proponent of open access to government data, particularly because it establishes a requirement to produce an inventory of “datasets that can be made publicly available but have not yet been released.” That will facilitate enforcement and advancement of the open data agenda, Sunlight said.

While one wants to believe in the efficacy of the order and to affirm the good faith intentions behind it, it is necessary to recognize how remote it is from current practice, particularly in the contentious realm of national security information.

The CIA, for example, has stubbornly refused to release the contents of its CREST database of declassified documents, even though the documents contained there are entirely declassified.  The CREST database is not open, it’s not machine-readable, and you can’t have a copy.

Meanwhile, the Obama White House itself has refused to publish even its unclassified Presidential Policy Directives (with a few exceptions), forcing requesters to litigate for access, or to surrender.

The process of declassifying national security records, which is hardly expeditious under the best of circumstances, will become slower as a result of the mandatory budget cuts known as sequestration.

Due to sequestration, “NARA has reduced funding dedicated to the declassification of Presidential records,” the National Archives and Records Administration (NARA) said in a report last week.

“Instead, NARA staff will prepare documents for declassification, in addition to their existing duties. This will slow declassification processes and delay other work, including FOIA responses and special access requests,” said the new report, which also identified several other adverse effects of the across-the-board cuts.

Meanwhile, because of the basic asymmetry between classification and declassification, there is no particular reason to expect a corresponding reduction in the rate at which new records are classified.

Classification is an integral part of the production of new national security information that cannot be deferred, while declassification is a distinct process that can easily be put on hold.  Likewise, there is no dedicated budget for “classification” to cut in the way that NARA has cut declassification spending.  And while Congress has erected barriers to declassification (such as the Kyl-Lott Amendment to prohibit automatic declassification of records without review), it has simultaneously allowed declassification requirements to go overlooked and unenforced.

Some declassification is actually mandated by law.  A 1991 statute on the Foreign Relations of the United States series requires the Department of State to publish a “thorough, accurate, and reliable documentary record of major United States foreign policy decisions” no later than 30 years after the fact, necessitating the timely declassification of the underlying records.  But law or no law, the government has not complied with this publication schedule.