SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2017, Issue No. 25
April 10, 2017

Secrecy News Blog: https://fas.org/blogs/secrecy/

"RISK AVOIDANCE" LEADS TO OVER-CLASSIFICATION

When government officials consider whether to classify national security information, they should not aim for perfect security, according to new guidance from the Office of the Director of National Intelligence. Instead, classifiers should seek to limit unnecessary vulnerabilities, while keeping broader mission objectives in view.

"A Risk Avoidance strategy -- eliminating risk entirely -- is not an acceptable basis for agency [classification] guides because it encourages over-classification, restricts information sharing, [and] hinders the optimal use of intelligence information in support of national security and foreign policy goals," the ODNI document said.

Rather, "All agencies should reflect in their classification decisions a Risk Management strategy -- mitigating the likelihood and severity of risk -- in protecting classified information over which they have [classification authority], including clear descriptions in their classification policies of how the strategy is used when making classification determinations." See Principles of Classification Management for the Intelligence Community, ODNI, March 2017:

This risk management/risk avoidance dichotomy in classification policy has been batted around for a while. It was previously discussed at length in in the thoughtful but not very consequential 1994 report of the Joint Security Commission on "Redefining Security" in the post-cold war era.

"Some inherent vulnerabilities can never be eliminated fully, nor would the cost and benefit warrant this risk avoidance approach," the Commission wrote. "We can and must provide a rational, cost-effective, and enduring framework using risk management as the underlying basis for security decision making."

In short, it is only realistic to admit that some degree of risk is unavoidable and must be tolerated, and classification policy should reflect that reality.

But the risk management construct is not as helpful as one would wish. That is because its proponents, including the Joint Security Commission and the authors of the new ODNI document, typically stop short of providing concrete examples of information that risk avoiders would classify but that risk managers would permit to be disclosed. Without such illustrative guidance, risk management is in the eye of the beholder, and we are back where we started.

Meanwhile, there is persistent dissatisfaction with current secrecy policy within the national security bureaucracy itself.

Classifying too much information is "an impediment to our ability to conduct our operations," said Air Force Gen. John Hyten of U.S. Strategic Command at a symposium last week (as reported by Phillip Swarts in Space News on April 6).

"We have so many capabilities now," Gen. Hyten said. "There are all these special classifications that I can't talk about, and if you look at those capabilities you wonder why are they classified so high. So we're going to push those down."


CLIMATE CHANGE: LEGAL ISSUES, & MORE FROM CRS

Federal laws and regulations underlying the U.S. government's approach to climate change, and litigation regarding their scope and implementation, are discussed in a new report from the Congressional Research Service. See U.S. Climate Change Regulation and Litigation: Selected Legal Issues, April 3, 2017:

Other new and updated reports from the Congressional Research Service include the following.

Filibusters and Cloture in the Senate, updated April 7, 2017:

Invoking Cloture in the Senate, updated April 6, 2017:

Points of Order, Rulings, and Appeals in the Senate, updated April 7, 2017:

Introduction to the Legislative Process in the U.S. Congress, updated April 7, 2017:

The Value of Energy Tax Incentives Across Energy Resources: Trends over Time, CRS Insight, April 6, 2017:

Smith v. Obama: A Servicemember's Legal Challenge to the Campaign Against the Islamic State, CRS Legal Sidebar, updated April 4, 2017:

Military Pay: Key Questions and Answers, updated April 3, 2017:

Latin America and the Caribbean: Fact Sheet on Leaders and Elections, updated April 6, 2017:

Federal Disaster Assistance: The National Flood Insurance Program and Other Federal Disaster Assistance Programs Available to Individuals and Households After a Flood, April 6, 2017:

FirstNet's Nationwide Public Safety Broadband Network Moves Forward, CRS Insight, April 4, 2017:

What Constitutes "Sexual Abuse of a Minor" For Immigration Purposes?, CRS Legal Sidebar, April 6, 2017:

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, updated April 7, 2017:

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated April 6, 2017:

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, updated April 6, 2017:

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, updated April 6, 2017:

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated April 6, 2017:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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