SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 106
November 16, 2011

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

DECLASSIFICATION OF INTELLIGENCE SATELLITE IMAGERY STALLED

The eagerly awaited declassification of vast amounts of historical intelligence satellite imagery that was supposed to occur this year did not take place, and it is unknown when or if it might go forward.

Earlier this year, government officials had all but promised that the declassification and release of miles of satellite imagery film was imminent.

"The NGA [National Geospatial-Intelligence Agency] is anticipating the potential declassification of significant amounts of film-based imagery... in 2011," the Agency stated in a solicitation that was published in Federal Business Opportunities on February 14, 2011. ("Large Release of Intelligence Imagery Foreseen," Secrecy News, February 28, 2011).

"Almost all" of the historical intelligence imagery from the KH-9 satellite (1971-1986) should be declassified within a few months, said Douglas G. Richards of the Pentagon's Joint Staff at an August 23, 2011 public forum of the National Declassification Center.

But it didn't happen. Why not?

"I have no additional information to provide you concerning the status of this declassification effort," said Mr. Richards by email this week. "The Joint Staff completed its participation with the action a few months ago, consequently, I don't know its current status. Recommend contacting NGA for additional information."

An NGA spokesman said that the Agency is still weighing the issue and that it will eventually make a recommendation to the Director of National Intelligence on how to proceed. But it has not yet done so, and there is no particular deadline for it to reach a conclusion on the issue.

"The Director of National Intelligence (DNI) has requested that NGA review the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings for the purpose of making a recommendation to the DNI for possible declassification," said NGA public release officer Paul R. Polk in a November 10 email message to Prof. Chris Simpson of American University.

"At this time, NGA is conducting an ongoing review of the materials and will make its recommendations to the DNI once the evaluations are completed."

"If the DNI decides to declassify the subject imagery (or portions thereof), NGA will then need to develop a systematic method for transitioning the holdings over to the National Archives and Records Administration (NARA) for the purpose of making these records available to the general public."

"In short, NGA cannot at this time advise as to what portions of the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings will be declassified by the DNI, or when they may be available for purchase from NARA," wrote Mr. Polk in his message to Prof. Simpson.

It is difficult to discern what is going on behind the scenes here. One official suggested that the public announcements of impending declassification may have had the unintended effect of triggering latent opposition to the move and preventing its implementation.

There is a history of contention over imagery declassification dating back to President Clinton's 1995 executive order 12951, which declassified imagery from the Corona, Argon and Lanyard intelligence reconnaissance programs.

The Clinton order was a historic development in intelligence policy that was enthusiastically welcomed by scientists, environmentalists and many others at the time. But it also contained some problematic language that made subsequent declassification action more difficult than it would have been otherwise. The order stated that intelligence imagery from satellite programs other than Corona, Argon and Lanyard "shall be kept secret... until deemed otherwise by the Director of Central Intelligence."

Intelligence officials seized upon this language to argue that satellite imagery had been "carved out" of the normal procedures for automatic and systematic declassification. They insisted that any future release of such imagery was exclusively within the discretion of the DCI (later the DNI), who simply declined to exercise that discretion. A compelling counterargument can be made that this Clinton order language (or this interpretation of the language) was superseded by later executive orders, including EO 13526, which stated that "no information may be excluded from declassification... based solely on the type of document or record in which it is found" (sect. 3.1g).

But although the debate might have been won in theory, it has been effectively lost in practice. Contrary to prior official statements, there will be no further declassification of historical satellite imagery in 2011, and no one can say when it might resume.

PRE-PUBLICATION REVIEW AS A SECRECY BATTLEGROUND

The Obama Administration's uncompromising approach to punishing "leaks" of classified information has been widely noted. But its handling of pre-publication review disputes with former intelligence agency employees who seek to publish their work has been no less combative.

Government prosecutors are preparing to confiscate proceeds from the unauthorized publication of "The Human Factor: Inside the CIA's Dysfunctional Intelligence Culture" by the pseudonymous Ishmael Jones, a former CIA officer. After Jones published the book without the permission of CIA reviewers, the government said that he was in violation of the secrecy agreement he had signed.

Jones argued that he had not published any classified information and that CIA had breached the agreement first by failing to review his manuscript in good faith. But his efforts were unavailing, and a court concurred with the CIA.

"All discovery demands heretofore served by defendant [Jones] are quashed, and defendant is prohibited from serving other discovery demands," ruled Magistrate Judge Thomas Rawls Jones, Jr. in favor of the CIA on November 4.

If Jones believed that CIA was wrongly obstructing publication of his work, prosecutors said, what he should have done "was to file suit in U.S. District Court challenging the Agency's decision, in order to obtain permission to publish the book."

That sounds reasonable enough. But in another case where an author did exactly that, government attorneys are making it all but impossible for the author to present his argument to a judge.

Anthony Shaffer, author of the Afghanistan war memoir "Operation Dark Heart," said that intelligence agencies had unlawfully violated his First Amendment rights by censoring his manuscript. But the government wants to limit his ability to present his challenge.

For one thing, Shaffer has been denied access to the original text of his own book. The text contains classified information, the government says, and he no longer holds a security clearance. So he is out of luck. Nor has the government allowed him use of a secure computer so that he could cite contested portions of the text and dispute their classification in pleadings submitted to the court.

Instead, the government argues that the Court should resolve the disagreement based on the materials provided by the government, along with any unclassified materials that may be submitted by the plaintiff [Mr. Shaffer]. Shaffer does not need his manuscript or a secure computer, since "it is improper and unnecessary for Plaintiff to submit classified information to the Court at this time." (Joint Status Report, July 22, 2011).

Even unclassified materials that Mr. Shaffer may wish to submit in a declaration to the court -- in order to demonstrate that the supposedly classified information in his original text is already public -- may need to be sealed from public disclosure, the government said on October 28. That is because "the association of that open source information with the book's redactions may make the [author's] declaration classified."

All of this is quite absurd, said Mark S. Zaid, Mr. Shaffer's attorney, in a reply filed last week.

"There is no other way for Shaffer to identify and challenge any of the specific text purported to be classified, much less present an argument to the Court, if he does not have access to the original copy of his book," Mr. Zaid wrote.

The upshot is that under current policy neither Mr. Jones, who defied the rules, nor Mr. Shaffer, who has attempted to follow them, is permitted to gain a meaningful independent review of government restrictions on the information he sought to publish.

There is an additional layer of absurdity in Mr. Shaffer's case, since the unredacted text of his book has been publicly released in limited numbers, and portions of it are even available online. ("Behind the Censorship of Operation Dark Heart," Secrecy News, September 29, 2010).

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

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