SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2018, Issue No. 11
February 15, 2018

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

CIA DEFENDS SELECTIVE DISCLOSURE TO REPORTERS

The Central Intelligence Agency said yesterday that it has the right to disclose classified information to selected journalists and then to withhold the same information from others under the Freedom of Information Act.

FOIA requester Adam Johnson had obtained CIA emails sent to various members of the press including some that were redacted as classified. How, he wondered, could the CIA give information to uncleared reporters -- in this case Siobhan Gorman (then) of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times -- and yet refuse to give it to him? In an effort to discover the secret messages, he filed a FOIA lawsuit.

His question is a good one, said Chief Judge Colleen MacMahon of the Southern District of New York in a court order last month. "The issue is whether the CIA waived its right to rely on otherwise applicable exemptions to FOIA disclosure by admittedly disclosing information selectively to one particular reporter [or three]."

"In this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private," she wrote. "There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including 'trusted reporters,' for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had?"

Judge MacMahon therefore ordered CIA to prepare a more rigorous justification of its legal position. It was filed by the government yesterday.

CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from "unauthorized" disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said. "The CIA properly exercised its broad discretion to provide certain limited information to the three reporters."

"The Court's supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken," the CIA response stated. "The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain. For these reasons, the limited disclosures here did not effect any waiver of FOIA's exemptions."

A reply from plaintiff Adam Johnson is due March 1.

Selective disclosure of classified information to uncleared reporters is a more or less established practice that is recognized by Congress, which has required periodic reporting to Congress of such disclosures. See Disclosing Classified Info to the Press -- With Permission, Secrecy News, January 4, 2017.

The nature of FOIA litigation is such that a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.


RELEASE OF SECURITY CLEARANCE DATA DELAYED

Recent news stories on security clearances cite data from 2015 regarding the number of persons cleared for access to classified information (4.2 million at that time).

Why aren't more current numbers being cited?

More recent information has already been compiled in an annual report to Congress that was completed in October 2017. But its release to the public has been delayed indefinitely by an internal intelligence community dispute over the classification status or sensitivity of some of the more detailed reporting on individual agency statistics that are contained in the report.

In fact, the same detailed reporting was provided in the 2015 report and the same dispute over publication arose. But at that time, Obama Administration intelligence officials told security officers in effect to "knock it off" and to just release the report, which they did in June 2016.

The public disclosure of security clearance data was one of dozens of fundamental changes to national security information policy that were made during the Obama Administration to promote greater transparency. Although the annual report on security clearances was required by Congress (in the FY 10 intelligence authorization act), its public disclosure was a choice made by the Obama Administration. Now a different choice is being made.

A FOIA request for release of the latest report on security clearances is pending.


NONSTRATEGIC NUCLEAR WEAPONS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service this week include the following.

Nonstrategic Nuclear Weapons, updated February 13, 2018:

Congressional Gold Medals: Background, Legislative Process, and Issues for Congress, February 9, 2018:

D.C. Circuit Upholds as Constitutional the Structure of the CFPB -- Part I, CRS Legal Sidebar, February 12, 2018

Israel: Background and U.S. Relations In Brief, updated February 12, 2018:

Department of State, Foreign Operations, and Related Programs: FY2018 Budget and Appropriations, updated February 12, 2018:

Ecuador: In Brief, updated February 13, 2018:

Diversity Immigrants' Regions and Countries of Origin: Fact Sheet, February 13, 2018:

HPSCI Memorandum Sparks Debate over FISA Application Requirements, CRS Legal Sidebar, February 14, 2018:

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

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