SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 19
March 2, 2012

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

COURT SAYS AGENCY CLASSIFICATION DECISION IS "NOT LOGICAL"

In an opinion published this week, DC District Judge Richard W. Roberts did an astonishing thing that federal courts almost never do: He probed into the decision to classify a government document and concluded that it was not well-founded. He ordered the agency to release the document under the Freedom of Information Act.

The Center for International Environmental Law had sued the Office of the U.S. Trade Representative (USTR) to obtain a one-page position paper concerning the U.S. negotiating position in free trade negotiations. The USTR denied the document, which it said was classified, on grounds that the parties to the negotiation had agreed that their records would not be disclosed prior to the end of 2013.

The USTR contended that release of the document would engender a loss of confidence among U.S. negotiating partners and weaken the position of the U.S. in future negotiations. It was classified "Confidential" because its disclosure could reasonably be expected to cause harm to U.S. foreign relations, USTR said.

But Judge Roberts rejected this line of argument, particularly since the document in question was a U.S. Government record, not foreign government information that had been provided in confidence.

"There is... a meaningful difference between the United States' disclosure of information that it receives in confidence from a foreign government, with the foreign government's understanding that the information will be kept secret, and the United States' disclosure of a document that it itself created and provided to others," he wrote.

"USTR... fails to provide a plausible or logical explanation of why disclosure of Document 1 reasonably could be expected to damage United States' foreign relations," Judge Roberts concluded. Therefore, he ruled that it could not be withheld.

In the context of FOIA litigation, this is an extraordinary opinion.

Ordinarily, courts defer to executive branch agencies on questions of national security classification. It's true that FOIA requires that information must be "properly" classified in order to be exempt from disclosure. But the term "properly" has usually been interpreted to mean procedurally proper, not substantively proper. In other words, courts ask if the classifier was authorized to classify and if other classification rules were correctly followed. But unlike Judge Roberts, they do not normally ask whether the classification decision makes any sense.

Once the question of the merit of the document's classification was permitted, the USTR postion could not be sustained.

Interestingly, the court did not specifically say that the document must be declassified. Classification policy is not the court's concern, particularly since it is not based in statute. Rather, Judge Roberts simply ordered that the government must provide a copy of the document to the requester -- whether it is classified or not.

The ruling is a rebuke not only to the USTR, which classified the document, but also to the Department of Justice, which chose to defend the case in court. According to 2009 FOIA Guidelines issued by Attorney General Holder, the Department of Justice is only supposed to defend agency FOIA denials when disclosure would cause reasonably foreseeable harm or is prohibited by law. In practice, however, there is no known case in which those Guidelines have led the Department to decline to defend a FOIA denial.

The new decision was first reported by Josh Gerstein of Politico in "Judge issues rare order to disclose classified document," February 29:

Federal courts could do far more to curb unwarranted secrecy than they usually do, argued Meredith Fuchs, then-general counsel of the National Security Archive, in a 2006 law review article. See "Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy," Administrative Law Review, Winter 2006.

DOD INSPECTOR GENERAL TALLIES LEAKS OF CLASSIFIED INTEL

In response to a congressional directive, the Department of Defense Inspector General has provided to Congress "an inventory of all identified unauthorized disclosures of SCI [sensitive compartmented information, or classified intelligence] to the public within DoD from the past three calendar years." The classified IG report also described the actions taken by DoD in response to the leaks, including referrals to the Department of Justice for criminal investigation.

An unclassified version of the IG report, stripped of almost all of its content, was released yesterday. See "Report on Sensitive Compartmented Information Leaks in the Department of Defense," DoD Inspector General Report No. 2012-056, February 27, 2012:

"We confirmed with DoD components that some unauthorized disclosures of SCI to the public did occur within DoD between December 23, 2008 and December 23, 2011. Among the unauthorized SCI disclosures to the public reported, a DoD Senior Official was directly attributed as a source of unauthorized SCI disclosures to the public," the unclassified IG report stated. The DoD Senior Official was not identified in the published report.

The IG report includes previously undisclosed congressional language from the classified annex to the FY2012 House Defense Appropriations Bill:

"The Committee is appalled with the number of leaked classified and compartmented facts and reports that have occurred over the past three calendar years. The sources and methods used for clandestine and covert activities are some of the most closely guarded secrets in the Department of Defense and intelligence community and the fact that these details are being exposed on a regular basis by 'senior administration officials' is of grave concern. These sources and methods are the life-blood of intelligence and will not be maintained or cultivated in the future if they continue to be exposed.... The Committee believes that these leaks are unacceptable, need to be investigated, and stopped."

Among other things, the DoD IG response illustrates the fact that agency Inspectors General have the capacity to conduct detailed and exacting oversight of classification policy when they are assigned to do so. See "DoD Inspector General Takes on Classification Oversight," Secrecy News, February 8, 2012.

THE EUROZONE CRISIS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that Congress has not made directly available to the public include the following.

North Korea's Nuclear Weapons: Technical Issues, February 29, 2012:

Afghanistan Casualties: Military Forces and Civilians, February 29, 2012:

The Eurozone Crisis: Overview and Issues for Congress, February 29, 2012:

Sovereign Debt in Advanced Economies: Overview and Issues for Congress, February 29, 2012:

Direct Overt U.S. Aid and Military Reimbursements to Pakistan, FY2002-FY2012, February 29, 2012:

Military Construction: A Snapshot of the President's FY2013 Appropriations Request, February 28, 2012:

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

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