SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 48
June 1, 2009

Secrecy News Blog: http://www.fas.org/blog/secrecy/

OBAMA ORDERS REVIEW OF CLASSIFICATION POLICY

President Obama last week formally initiated a review of national security classification policy, directing the National Security Adviser to prepare recommendations for revising the current executive order on classification.

"My Administration is committed to operating with an unprecedented level of openness," the President wrote on May 27. "While the Government must be able to prevent the public disclosure of information where such disclosure would compromise the privacy of American citizens, national security, or other legitimate interests, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment."

The President's memo specifically identifies "overclassification" as a "problem" and invites recommendations for "greater openness and transparency." However, both the memo's diagnosis and its own suggested remedies are quite superficial.

For example, the memo does not address the need to revise and update the criteria for classification. And it does not require an inquiry into the role of "need to know" restrictions, if any, in a networked information environment.

The memo proposes a National Declassification Center to facilitate collaborative declassification review. This is a welcome idea that would eliminate costly, time-consuming sequential reviews of records for declassification. But without changes to classification criteria, the Center would continue to produce the same results as before, only more quickly. Thus, if the CIA thinks that fifty year old intelligence budget figures should remain classified, which it does, the mere existence of a Declassification Center would do nothing to correct such an error in judgment.

The memo also suggests restoring a presumption against classification "where there is significant doubt about the need for such classification." This sounds fine, but because doubt (or even "significant doubt") is an unverifiable mental state, it cannot serve as a basis for classification policy. When a similar presumption was included in past executive orders, it had no identifiable effect on agency classification practices. (The only possible role for such a provision is if the "doubter" is a different person than the "classifier." In other words, if an independent auditor or overseer "doubted" the need for certain information to be classified, he or she might usefully be authorized to cancel its classification. But that would be a new policy measure, not a restored one.)

A response to the President's memorandum is due within 90 days. In the same May 27 memorandum, the President also called for a review of restrictions on so-called "controlled unclassified information."

In April 1993, President Clinton issued his own directive to undertake reforms of classification policy. Many of the questions posed in that directive are persistent and remain unresolved today, including: What types of information continue to require protection through classification in the interest of our national security? And, What steps can be taken to avoid excessive classification? See Presidential Review Directive 29, April 26, 1993:

In a paper that should be published later this month in the Yale Law and Policy Review, I attempted to identify the conditions for successful reform of government secrecy policy.

SECRECY CONCEALS SOME CLASSIFICATION COSTS

Following sharp increases in the first several years after 9/11, the total estimated costs of implementing the national security classification system seem to have leveled off at around $10 billion annually, according to a new report to the President from the Information Security Oversight Office. The total cost of protecting classified information in government and industry last year was $9.85 billion, down slightly from $9.9 billion the year before, ISOO director William J. Bosanko reported.

The May 19 ISOO report also provided a striking reminder of the tide of secrecy that has silently and inexorably concealed previously public information in recent years.

When classification cost data were first reported in April 1994 (at the initiative of then-Rep. David Skaggs of Colorado), the CIA made the surprising claim that its classification costs were classified. This was understood by outside observers such as Sen. Daniel P. Moynihan as a familiar expression of CIA's excess of zeal. No one seriously believed that it was a legitimate national security issue, particularly because the cost data involved were rough estimates, not actual expenditures. As if to confirm that assessment, the classification costs incurred by all other intelligence agencies were incorporated as a matter of course in the ISOO cost reports each year through 2005.

But since 2006, the CIA's silly secrecy has become prevalent in the intelligence community and other agencies have adopted the claim that their estimated classification costs are national security secrets too. In the latest ISOO report to the President, Mr. Bosanko noted that the cost estimates for CIA, DIA, ODNI, NGA, NRO, and NSA were all classified "in accordance with Intelligence Community classification guidance."

"Understanding the financial costs associated with keeping information secret is essential to any effort to begin scaling back the scope of secrecy and making protection more efficient," according to the 1997 Report of the Moynihan Commission (page 9). Such an effort is naturally frustrated when classification itself is used to conceal those costs.

OSC VIEWS ISLAM IN BOLIVIA

The tiny Muslim community of Bolivia was surveyed in a recent report from the DNI Open Source Center. The OSC report "is an overview of mosques, Islamic organizations, and religious leaders in Bolivia and their susceptibility to foreign Islamist influence."

Like many OSC products, this item has not been approved for public release. A copy was obtained by Secrecy News. See "Bolivia -- Key Muslim Converts Assert Local Peril, Ally With Zealots Abroad," Open Source Center, May 12, 2009:

A PROFILE OF THE OFFICE OF LEGAL COUNSEL

The organization, role and operation of the Office of Legal Counsel (OLC), which produces binding interpretations of the law for the executive branch, are usefully described in the Justice Department's FY 2010 budget request.

"OLC’s mission remains highly critical and urgent as the Department enters into a new era of responsibility confronting national security and intelligence challenges, reinvigorating federal civil rights enforcement, and advising the myriad of agencies involved in responding to the economic crisis," the budget request document states. "The Office is operating at a particularly challenging time, when a number of major legal positions of the United States government are under review or in the process of being changed."

Under the Bush Administration, the OLC notoriously issued numerous opinions -- many of which would later be withdrawn under criticism -- authorizing abusive interrogation, warrantless surveillance, and other departures from established legal norms. The President's distinguished nominee to head the Office, Prof. Dawn Johnsen, still awaits Senate confirmation and she reportedly faces opposition from some Senate Republicans.

US DECLARES NUCLEAR SITES TO THE IAEA

A compilation of hundreds of U.S. nuclear sites and activities that were to be declared to the International Atomic Energy Agency by the United States was transmitted to Congress last month by President Obama.

"The enclosed draft declaration lists each site, location, facility, and activity I intend to declare to the IAEA, and provides a detailed description of such sites, locations, facilities, and activities, and the provisions of the U.S.-IAEA Additional Protocol under which they would be declared," the President wrote. "Each site, location, facility, and activity would be declared in order to meet the obligations of the United States of America with respect to these provisions."

"The IAEA classification of the enclosed declaration is 'Highly Confidential Safeguards Sensitive'," the President noted in his May 5, 2009 transmittal letter, "however, the United States regards this information as 'Sensitive but Unclassified'."

But sensitive or not, the draft declaration was promptly published by the Government Printing Office. See "The List of Sites, Locations, Facilities, and Activities Declared to the International Atomic Energy Agency," message from the President of the United States, May 6, 2009 (267 pages, 13 MB PDF file):

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

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