SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 61
July 29, 2010

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

RETHINKING "FORMERLY RESTRICTED DATA"

Congress should eliminate the classification category known as "Formerly Restricted Data" in order to simplify and streamline classification policy, the Public Interest Declassification Board was told last week.

While most national security information (NSI) is classified by executive order, information related to nuclear weapons is classified under the Atomic Energy Act. And such classified nuclear weapons information in turn falls into two categories: Restricted Data (RD), which deals mainly with weapons design and production of nuclear material, and Formerly Restricted Data (FRD), which typically concerns the storage, maintenance and utilization of nuclear weapons. (Despite its somewhat misleading name, FRD is still classified information and cannot be shared with uncleared persons.)

Incredibly, each component of this three-part classification system -- NSI, RD, and FRD -- has different criteria for classifying, handling, and declassifying information within its scope. So, for example, RD can be declassified by the Secretary of Energy only when it poses no "undue risk." But FRD can be declassified only when doing so presents no "unreasonable risk," and only by joint action of the Secretary of Energy and the Department of Defense. And so on. When items from different classification categories are intermingled within the same document or records group, the processing of records for declassification all but grinds to a halt.

"The entire FRD classification category should be eliminated," I told the Public Interest Declassification Board, "because it adds needless complexity to an already baroque classification system, and it poses an unnecessary obstacle to the efficient functioning of the declassification process."

In the past, policymakers have considered transferring FRD to the regular classification system, or partitioning FRD partly into RD and partly into NSI, but they decided against it. "The cost and effort to manage such a partition, the judgment that it was unlikely for Congress [to make the needed legislative changes], and the problems discovered at NARA [where some unmarked RD and FRD were found in declassified files] resulted in no changes in the FRD category," said Andrew Weston-Dawkes, the Director of the Office of Classification at the Department of Energy, in a statement to the Board.

But the "no changes" approach has significant long-term costs of its own, because the current three-tiered classification system is a massive impediment to the efficient production, handling and ultimate declassification of classified government records.

"A workable classification system of the future will be simple in design, easy to implement and to correct, and modest in scale," I suggested to the PIDB. "The Formerly Restricted Data category is not consistent with that goal, and so it needs to go."

Dr. William Burr of the National Security Archive and Dr. Robert S. Norris of the Natural Resources Defense Council described to the PIDB the historical importance of information currently withheld as FRD, the often irrational barriers to its disclosure, and the benefits of careful declassification of historically significant FRD. Steve Henry of the Department of Defense said that the Pentagon is currently reviewing the possible declassification of historical nuclear weapons storage locations.

SENATE ASSISTS DOJ WITH LEAK INVESTIGATION

In response to a request from the Department of Justice, the Senate yesterday authorized the Senate Intelligence Committee to cooperate with a pending investigation of an unauthorized disclosure of classified information.

"The Chairman and Vice Chairman of the Senate Select Committee on Intelligence, acting jointly, are authorized to provide to the United States Department of Justice, under appropriate security procedures, copies of Committee documents sought in connection with a pending investigation into the unauthorized disclosure of classified national security information, and former and current employees of the Committee are authorized to testify in proceedings arising out of that investigation," according to Senate Resolution 600 that was passed yesterday.

The target of the leak investigation was not specified, but Senate Majority Leader Harry Reid said it involved "someone not connected with the committee."

The Office of the Director of National Intelligence recently released a copy of Intelligence Community Directive (ICD) Number 700 on "Protection of National Intelligence," which was issued on September 21, 2007. Among other things, the Directive mandated the establishment of "fora for the identification and solution of issues affecting the protection of national intelligence and intelligence sources and methods."

SENATOR: SECRECY OBSCURES CYBER THREATS

"I believe we are suffering what is probably the biggest transfer of wealth through theft and piracy in the history of mankind," said Sen. Sheldon Whitehouse (D-RI), referring to the penetration and compromise of U.S. information systems by foreign nations and criminal entities.

In a statement on the Senate floor on Tuesday, Sen. Whitehouse described some of the findings of a classified Task Force that he chaired and that recently reported to the Senate Intelligence Committee.

The defense of U.S. information networks "is the greatest unmet national security need facing the United States," he said. "The intelligence community is keenly aware of the threat and is doing all it can within existing laws and authorities to counter it. The bad news is the rest of our country--including the rest of the Federal Government--is not keeping pace with the threat."

Part of the problem, he said, is that "threat information affecting the dot.gov and the dot.mil domains is largely classified--often very highly classified" and so "the public knows very little about the size and scope of the threat their Nation faces.... If they knew how vulnerable America's critical infrastructure is and the national security risk that has resulted, they would demand action. It is hard to legislate in a democracy when the public has been denied so much of the relevant information."

Among several proposed responses that he described, he said "we must more clearly define the rules of engagement for covert action by our country against cyber-threats. This is an especially sensitive subject and highly classified. But for here, let me just say that the intelligence community and the Department of Defense must be in a position to provide the President with as many lawful options as possible to counter cyber-threats, and the executive branch must have the appropriate authorities, policies, and procedures for covert cyber-activities, including how to react in real time when the attack comes at the speed of light. This all, of course, must be subject to very vigilant congressional oversight."

More than 40 bills on cyber security are currently pending in Congress, Sen. Whitehouse noted.

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

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