SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 69
July 25, 2011

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

DNI SECURITY OFFICIAL APPOINTED TO BE NEW ISOO DIRECTOR

In a step that will shape the future course of U.S. government secrecy policy, President Obama approved the appointment of John P. Fitzpatrick, a security official at the Office of the Director of National Intelligence, to be the next Director of the Information Security Oversight Office (ISOO), effective August 1.

The ISOO Director, sometimes referred to as the "classification czar," is the most senior official (other than the President himself) responsible for oversight of the national security classification system. The Director monitors agency compliance with classification policies, and leads the development of changes in those policies. In his oversight capacity, the ISOO Director is authorized and required to act on complaints and suggestions both from within the government and from members of the public. The President has also empowered the ISOO Director to require the declassification of any information he deems to be improperly classified (though this authority has never been exercised in practice).

Mr. Fitzpatrick is a former director of the DNI Special Security Center, the inner sanctum of security policy within the U.S. intelligence community. In theory, this background should give him the stature to command attention and respect throughout the far-flung secrecy bureaucracy.

Mr. Fitzpatrick's credentials as a proponent of secrecy reform are less clear. But David S. Ferriero, the Archivist of the United States, called him "a strong advocate for information sharing and protection," and said "he has demonstrated his ability to lead and oversee change both within and beyond the Intelligence Community throughout his career."

"This experience uniquely positions him to lead ISOO and I look to him to improve transparency, openness, and access while ensuring that classified information is properly protected," the Archivist wrote in a July 20 announcement to all NARA employees. (ISOO is a component of the National Archives and Records Administration, though it takes policy direction from the White House.)

Among his professional achievements, it is noteworthy that Mr. Fitzpatrick helped foster significant changes in security clearance policy as director of the DNI Special Security Center. Cutting against the grain of contemporary practice, he advanced new procedures that "would remove barriers for first- and second-generation Americans to be considered for IC security clearances."

In some other areas, he seems to have fallen short. Thus, in December 2010 he told the House Intelligence Committee that the precise number of security clearances throughout the government would be disclosed in a February 2011 report to Congress. But when it was delivered, the report did not contain the information promised by Mr. Fitzpatrick. That information -- now due in another report -- apparently has still not been transmitted. The ODNI said last week that it was "privileged" and "pre-decisional." (See "Total Number of Security Clearances Still Unknown," Secrecy News, May 27, 2011.)

Mr. Fitzpatrick's appointment to be the fifth ISOO Director since the organization was established in 1978 comes at a particularly crucial moment in secrecy policy. The national security classification system is under mounting pressure both to fulfill its core function of protecting genuine national security secrets and to eliminate the spurious accretions of decades of excessive secrecy. The President has spoken of the need for a "fundamental transformation" of today's classification system, which is an artifact of Cold War principles, politics and practices, though he did not provide any direction for such a transformation. An effort is underway to rescind obsolete classification policies through the pending Fundamental Classification Guidance Review, but it is still uncertain whether this process will gain traction and produce results.

Within a fairly short period of time -- probably not more than a year or two -- it will become clear whether the secrecy system is responsive to such planned and deliberate reforms, or whether it will drift towards failure and irrelevance instead. Accordingly, the ISOO under Mr. Fitzpatrick's leadership could become more important than ever as a vehicle for secrecy reform-- or it could prove inconsequential.

LEAK PROSECUTORS CRITICIZE STERLING SUBPOENA TO SENATE

Government attorneys said last week that a proposal by former CIA officer Jeffrey Sterling to subpoena former staff members from the Senate Intelligence Committee to show that they, not he, leaked classified information was "frivolous" and should be denied.

Prosecutors also suggested that the Sterling defense motion actually strengthened their own argument that New York Times reporter James Risen, to whom Sterling allegedly provided classified information, should be compelled to testify at Sterling's trial.

"The defense plans to point fingers at other possible 'suspects' and ask the jury to speculate that someone other than Sterling was Risen's source," prosecutors said in a July 22 response to the defense motion for a subpoena to the U.S. Senate. "And while the defendant certainly has a right to develop and put forth his defense as he sees fit, the only reason he can proceed down this path is because he believes that the government will not be able to compel Risen to identify his source or even testify as to who was not a source."

"In other words," prosecutors said, "the First Amendment interests advocated by Risen have become both a sword and shield for the defendant, and he has used the current impasse over Risen's testimony to accuse falsely other individuals of serious crimes and ask this court to enforce speculative and largely frivolous requests to search for information in support of that defense. This should not be countenanced," they argued.

Prosecutors said that the Senate Intelligence Committee has undertaken a search for documents responsive to Mr. Sterling's request, even in the absence of a subpoena. They also said that the Committee staff members named by Mr. Sterling denied having provided any information to Mr. Risen.

A transcript of the July 7 court hearing on Mr. Risen's motion to quash the prosecution's subpoena to compel him to testify at trial is now available here:

William M. Welch II, the lead prosecutor in the Sterling case and in the recently concluded prosecution of Thomas Drake, was profiled by Shane Harris in "Obama Administration's Point Man to Stop Leaks," Washingtonian Capital Comment blog, July 20:

EXPORT CONTROL REFORM, AND MORE FROM CRS

Congress opposes direct public access to most Congressional Research Service reports, so people who care to read the reports on current policy issues must work around the Congressional barrier. Some noteworthy new reports from CRS include the following.

The U.S. Export Control System and the President's Reform Initiative, July 14, 2011:

A Balanced Budget Constitutional Amendment: Background and Congressional Options, July 8, 2011:

Selected Characteristics of Private and Public Sector Workers, July 1, 2011:

The Sustainability of the Federal Budget Deficit: Market Confidence and Economic Effects, June 28, 2011:

War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution, June 22, 2011:

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

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