SECRECY NEWS
from the FAS Project on Government Secrecy
January 23, 2001

JUSTICE DEPT REBUFFED CIA SECRECY CLAIMS IN 1999

The Department of Justice dismissed an audacious claim by the Director of Central Intelligence (DCI) that he possesses independent authority to classify information and that his classification determinations are not subject to review by Presidential appointees, according to a 1999 DOJ Office of Legal Counsel Opinion that was released last week.

The issue arose after the Central Intelligence Agency challenged the jurisdiction of the Interagency Security Classification Appeals Panel (ISCAP) to review and overturn CIA classification decisions. The ISCAP, which was created by the 1995 executive order 12958, is authorized by the President to consider appeals of "mandatory declassification review" requests that have been denied. The Chair of the ISCAP is appointed by the President.

When the ISCAP began considering declassification of certain CIA documents that the Agency wanted kept secret, the DCI asserted that his classification decisions pertaining to intelligence sources and methods are not subject to ISCAP review and hence, he insisted, the CIA documents would not be declassified.

Specifically, the DCI argued that the National Security Act of 1947 gives him unqualified authority to protect intelligence sources and methods, and that this authority could not be infringed upon by the President's ISCAP.

But in a rare legal defeat for the CIA, the Department of Justice Office of Legal Counsel (OLC) soundly rejected the DCI's claims and implied that the CIA's position violated constitutional principles.

The OLC ruled that the National Security Act obligation to protect sources and methods is in support of the President's authority, and not independent of it.

"Indeed, to assume otherwise would raise grave concerns about the constitutionality of the National Security Act," the OLC Opinion declared. "A construction of the Act that permitted the DCI to block the release of national security information that the President believes should be disclosed would appear to conflict with the Framers' considered judgment... that... all authority over matters of national defense and foreign affairs is vested in the President...."

This is a rather startling finding, mainly because no one in authority ever talks that way to the DCI. Federal judges, for example, almost always yield to even the silliest of CIA arguments about the supposed hazards of information disclosure. No judge in a Freedom of Information Act proceeding has ever compelled the CIA to release a document it did not want to disclose (though the CIA has "voluntarily" agreed to release previously withheld records under pressure of litigation).

The landmark Office of Legal Counsel ruling against the CIA was not the end of the story, however. Once the legal battle over ISCAP's authority was lost, CIA officials resorted to arm-twisting. They exerted political pressure on the heads of ISCAP member agencies to defer to CIA's views. As a result, the ISCAP even voted to withhold the documents that had given rise to the CIA's unsuccessful legal challenge in the first place. Likewise, the ISCAP upheld the CIA's position against disclosure of the 1988 intelligence budget total, even though the more recent and therefore presumably more sensitive 1997 and 1998 budget totals had already been declassified. The ISCAP has also yielded to CIA on continued classification of the President's Daily Brief from over three decades ago.

Thus, one of the few remaining checks and balances on CIA secrecy policy has been largely neutered by the Agency.

The newly released OLC Opinion, authored by Randolph D. Moss, is posted here:

LAST OF DOE "OPENNESS" TEAM DEPARTS

The Department of Energy's vaunted "Openness Initiative" is fading into memory as the last of the senior officials associated with the Initiative has retired. Roger K. Heusser, acting director of the DOE Office of Nuclear and National Security Information, retired on December 28. His predecessor, Bryan Siebert, who had directed the Office of Declassification through its glory days, left the Department two years ago.

As a sort of parting gift, Mr. Heusser oversaw eleven new declassification decisions last year. One of these was the disclosure of some 99 hydronuclear experiments conducted by Lawrence Livermore National Laboratory at the Nevada Test Site between 1954 and 1966, a period which included a U.S.-Russia moratorium on nuclear testing.

An informal tribute to Mr. Heusser, prepared by a DOE official, is posted here:

INVENTION SECRECY STATS DISCLOSED

Under the Invention Secrecy Act of 1951, the government imposes "secrecy orders" on patent applications when they involve inventions in certain national security technology areas. These secrecy orders impose various levels of restriction on disclosure of the invention, ranging from export controls to national security classification.

At the end of Fiscal Year 2000, there were 4,741 secrecy orders in effect, according to the latest statistics released by the Office of Patent and Trademark at the U.S. Department of Commerce. Most of these were renewals of existing secrecy orders from past years. (In the recent past, secrecy order activity peaked at 6,193 orders in FY 1991.)

The Invention Secrecy Act raises serious constitutional concerns, since it appears to involve prior restraint on individual free speech. These concerns are particularly acute in those cases where private individuals or small businesses, as opposed to government contractors, are involved. While the majority of secrecy orders are in fact imposed in cases where the government has a contractual or property interest in the invention, a significant fraction of them, known as "John Doe" secrecy orders, are imposed on private inventors.

The Atomic Energy Act is the only other statute under which the government asserts a right to seize privately generated intellectual property and to prevent its disclosure.

Of the 83 new secrecy orders imposed in FY 2000, 24 were "John Doe" secrecy orders. The constitutionality of this practice has never been tested in court.

A statistical breakdown of patent secrecy order activity for the last few years is posted here:

Additional background on invention secrecy may be found here:

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