SECRECY NEWS
from the FAS Project on Government Secrecy
August 30, 2001

ANTI-LEAK LAW MAY BE "UNWORKABLE"

The controversial Senate Intelligence Committee proposal to criminalize unauthorized disclosures of classified information would be extremely difficult to implement in practice, skeptical security officials say. Among other things, it might require the establishment of an entire new bureaucracy to review the proposed public statements of millions of Americans who once held a clearance and now fear prosecution for disclosing classified information.

The practical difficulty with the anti-leak proposal stems from the absence of clarity about what is "classified." The definition of classified information is obviously not stable over time. What is classified today may not be classified tomorrow, and vice versa.

But to complicate matters further, different agencies may assign a different classification status to the same information at the same time. "Even the experts cannot always agree on what is classified," according to one senior national security agency official who recently retired. "There is predictable variability."

(This fact has sometimes been turned to advantage by Freedom of Information Act requesters who request declassification of the same document from different agencies, yielding substantially different but complementary declassified texts.)

The upshot is that a scrupulous person may never be absolutely sure that a particular piece of information concerning national defense or foreign policy is unclassified. "The [proposed anti-leak] legislation puts at risk anyone who has or had a clearance who communicates with the press since there is not even agreement about what is legitimately or properly classified," the official said.

"The existing system isn't good, but when the [proposed] law removes intent to harm [as a criterion of guilt for disclosing information] and doesn't define how you know when something is properly classified, that has the effect of shocking Pavlov's poor dog at random times no matter how he behaves."

"The only way to proceed with a semblance of protection would be for anyone concerned about getting in trouble to obtain a classification review in writing about what he or she proposes to say. But administratively, this would be a nightmare," the official said.

"The whole idea is unworkable. As someone who has spent some time with the classification system, I do not think our government's classification apparatus is capable of handling the many inquiries that would surely arise from the millions of people who have had clearances who may wish to talk to the press, write a letter to the editor, discuss foreign policy in public, etc."

Implementation of the law might therefore require the creation of a new government entity whose sole purpose would be the review and approval (or censorship) of proposed statements from formerly cleared persons who want to avoid committing a felony by disclosing information that might be classified.

No one has begun to consider how such a new government-wide prepublication review agency might function, or what it would cost.

Another significant degree of complexity arises from the fact that the proposed law prohibits disclosure of "any" classified information -- not just information to which a person may have had authorized access. This means that any discussion or elaboration of classified information that is already in the public domain could also be a felony. And even prepublication review might not solve that problem.

"Government reviewers would not be able to certify that a particular submission was unclassified if it contained classified information taken from the public domain," the official said. "It might even be legally impermissible for them to provide an expurgated text or to otherwise indicate to a formerly cleared person what information in his proposed statement is classified, since he or she is no longer authorized to possess such information."

In any case, "If Freedom of Information Act requests are a rough prototype of what a citizen has to go through to get a classification review completed for requested documents, anybody requesting an official review to help them avoid a felony for releasing classified information is going to have to wait a long time," the official said.

"Agencies typically take many months to some years to review information requested under the FOIA. If the press can't wait for John Q. Clearance to make sure he isn't going to prison, then the public is effectively denied any input he might have provided. Goodbye, First Amendment."

For now, the Senate Intelligence Committee appears to be hell-bent on advancing this proposal. A seemingly perfunctory public hearing on the matter is scheduled for September 5. Meanwhile, opposition continues to mount.

"Criminalizing all leaks to stop the few that actually pose a security threat amounts to burning down the house to roast the pig," according to an editorial in the Chicago Tribune today:

GAO CRITICIZES DOE SECURITY

"The Department of Energy (DOE) has recently taken, and continues to take, steps to upgrade protection and control over its classified information, but additional steps are needed," according to a new report of the General Accounting Office (GAO).

Though forcefully stated, the GAO's latest criticisms of DOE security policy are picayune. The new report contends that DOE should document with greater specificity its determinations that individual employees have a "need to know" classified information, and that the agency should consider reinstituting certain access controls on top secret information.

Rather obtusely, the GAO authors do not acknowledge the existence of any tension between security and mission performance. Yet aggressive security measures have been seen to adversely affect employee morale at DOE laboratories, and to hinder recruitment and retention of highly skilled personnel, posing a threat to the long-term vitality of these institutions.

It will always be possible to conceive of improvements in security, especially if cost and performance considerations are excluded. But perfect security could be achieved only by shutting down all DOE facilities. Only then could one say with certainty that no more secrets would ever be lost from those facilities.

See the new GAO report ("DOE Needs to Improve Control Over Classified Information," GAO-01-806, August 24, 380 kB PDF file) here:

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

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