SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 95
October 6, 2011

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

REDUCING OVERCLASSIFICATION THROUGH ACCOUNTABILITY

Reporting on intelligence can be a challenge even for an experienced national security reporter, observed Dana Priest in her book "Top Secret America" (co-authored with William Arkin).

"Having traveled the world with the military, I just didn't understand why I was failing to progress with [reporting on] the CIA," she wrote (p.19). "Maybe I wasn't using the right terminology or phrases, or hadn't found the right people to ask. But the obvious answer was made clear to me one day when [CIA spokesman William] Harlow finally got tired of the badgering and let me have it, explaining in a very loud voice why, for the umpteenth time, he had no comment to my questions. 'This is a goddamn secret organization! That's why!'"

The notion that "it's secret because it's secret" actually goes a long way towards explaining the often reflexive and indiscriminate practice of national security classification.

It therefore stands to reason, says a new report from the Brennan Center for Justice, that if classifiers were obliged to justify their classification actions with more clarity and precision, they would classify less. Among other steps, the report recommends that each classification action be accompanied by a concise written explanation. This would be one way of shifting incentives and burdens in favor of more thoughtful and more limited classification, the authors say. They sensibly call for a pilot project to test and refine their proposal on a limited scale. See "Reducing Overclassification Through Accountability" by Elizabeth Goitein and David M. Shapiro, Brennan Center for Justice, October 5:

However, it is not self-evident that this recommendation would have the desired effect. There are probably very few classifiers who consciously abuse classification authority to withhold information that they know should not be classified. Nor is it insurmountably difficult for a government official to devise a rationale even for a questionable classification decision, as many FOIA litigators can attest. If classifiers are required to provide a written justification for their view, no matter how eccentric or ill-considered it may be, they will find a way to do so.

A better approach would seem to be to diminish the effect of individual and agency biases towards secrecy by submitting classification decisions to a broad consensual review. (Since there are no purely objective standards to guide classification policy, a consensus of independent views may be the best one can hope for.) A procedure of this sort is supposed to be followed in the ongoing Fundamental Classification Guidance Review, though it is unclear how broad a range of perspectives is actually being brought to bear.

Besides their several proposals for change, the Brennan Center authors present a lucid recapitulation of the case against unfettered secrecy that anyone can read with benefit. Their report contributes another voice of urgency to the mounting demand for reform of national security secrecy.

The need for secrecy reform was also vividly illustrated by the Obama Administration's unwillingness to candidly discuss the killing of Anwar al-Awlaki in Yemen last week, or even to present the legal justification for it. See "A Closed-Mouth Policy Even on Open Secrets" by Scott Shane, New York Times, October 5:

CLEARANCE LOST DUE TO ANTI-ISLAMIC PREJUDICE, LAWSUIT SAYS

Mahmoud M. Hegab was a well-regarded budget analyst at the National Geospatial-Intelligence Agency (NGA) until last year when his Top Secret/SCI security clearance was abruptly revoked.

Among the issues precipitating his loss of clearance were the fact that his newlywed wife had graduated from an Islamic school, that she had participated in an anti-war protest, and that she had engaged in pro-Palestinian political activity while a student at George Mason University.

This week Mr. Hegab filed a lawsuit against the NGA seeking reinstatement of his clearance.

"The revocation of plaintiff's security clearance and access to classified information by NGA was based solely on plaintiff's wife's religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization," wrote Sheldon I. Cohen, Mr. Hegab's attorney. None of her actions or affiliations posed any national security concern, the lawsuit said.

There is no constitutional right to be granted a security clearance. However, Mr. Hegab does have "a property interest in his continued employment in the position he previously held at NGA," wrote Mr. Cohen. "NGA by its actions has deprived plaintiff of his property interest in his continued employment with the federal government in violations of plaintiff's right to due process under the First, Fifth and Ninth amendments to the United States Constitution."

The new complaint presented an extensive account of Mr. Hegab's experience along with a detailed rebuttal of the allegations against him and his wife. The NGA's response to the complaint will be posted in Secrecy News when it is filed in a month or so.

"Muslims have replaced Jews as targets of discrimination" in the security clearance system, according to a report in Moment magazine, a Jewish monthly. See "Anti-Muslim Discrimination in Post 9/11 America," April 2011:

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

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