from the FAS Project on Government Secrecy
Volume 2012, Issue No. 23
March 14, 2012

Secrecy News Blog:


Two weeks ago, Judge Richard W. Roberts issued an extraordinary ruling that a secret government document was not properly classified and must therefore be released under the Freedom of Information Act. See "Court Says Agency Classification Decision is Not 'Logical'," Secrecy News, March 2.

Now the question is whether the government will accept the ruling and abide by it, or challenge it.

That hasn't been decided yet. The U.S. Trade Representative (USTR), which classified the document, "has not yet determined whether to appeal the February 29 judgment," the court was told in a stipulation filed this week.

But the choice that the government makes could have far-reaching implications. What is at stake is whether or not the Freedom of Information Act can serve as an effective means to curb overclassification.

If Judge Roberts' ruling stands, and the document is released, the judicial system will have succeeded in correcting a manifest classification error despite the prior failure of all executive branch oversight mechanisms to do so. The ruling would serve as a precedent and an inspiration for further classification challenges.

The document itself is probably of limited interest and its disclosure of little concern to the Administration. But the court ruling requiring its disclosure is a different matter that raises potentially thorny issues.

There is a school of thought which holds that national security classification is exclusively an executive branch function that stems from the President's constitutional role as commander-in-chief of the armed forces. From this point of view, any judicial incursion on classification decisions is an intolerable infringement on presidential authority.

Taken to an extreme, this perspective would imply that the Freedom of Information Act itself is unconstitutional. The FOIA allows for independent judicial review of executive branch classification decisions, and creates at least the possibility that those decisions will be overturned, as in the present case.

This conflict between the FOIA and an expansive view of executive authority normally remains latent, because judges almost never order an agency to release a classified document. Instead, courts typically defer to the executive on questions of national security. In close cases, and when an agency senses that its own position is weak, it will often declassify and release a document without being ordered by the court to do so. It thereby preserves at least the appearance of autonomy and exclusivity in classification policy.

On the rare occasions when a court has ordered declassification or release of a classified document, the decision has usually been vacated on appeal or mooted for technical reasons. See this 1995 Justice Department "History of Exemption 1 Disclosure Orders":

With Judge Roberts' ruling, that history will have to be revised.

New mechanisms for correcting classification errors and abuses are needed throughout the national security classification system. Judge Roberts' decision holds the promise that the courts could serve as one such mechanism. But this promise will be realized only if the Obama Administration accepts the principle of judicial review of classification decisions.


Scientist Stewart Nozette, who pleaded guilty to attempted espionage after offering to sell classified information to an undercover FBI agent who posed as an Israeli intelligence officer, will be sentenced this month to a likely term of 156 months incarceration.

In a dismal sentencing memorandum this week, the government portrayed Nozette as both gifted and twisted.

"That defendant [Nozette] was by all accounts a brilliant scientist makes this crime especially troubling," the memo stated. "His statement to the undercover FBI agent that anything 'that the U.S. has done in space I've seen' was not hyperbole."

"Defendant's experience in the space arena was diverse and impressive. His related accomplishments in the field were matched by few, if anyone else, on the planet."

But "despite his exceedingly comfortable lifestyle in Chevy Chase, Maryland, he had expensive tastes which stretched him financially. He thus chose to supplement his income unlawfully.... Defendant all too eagerly agreed to be a traitor to the United States and did so with obvious glee and with no apparent remorse or hesitation," the memo said.

Dr. Nozette, whom I knew slightly years ago, "has a profound intellectual gift. One need only walk steps away from the courthouse to the National Air and Space Museum of the Smithsonian Institution to view the prototype of the Clementine satellite, part of the Clementine bi-static radar experiment which purportedly discovered ice on the south pole of the moon, the concept for which defendant first sketched out in a burst of brilliance on a paper napkin."

"He has squandered his considerable gift.... His legacy now, first and foremost, is not what is found within the Smithsonian Institution or within various Sensitive Compartmented Facilities throughout various agencies of the United States. His legacy is now what has occurred before this Court. He is someone who agreed to be a traitor to the United States. For all of the defense arguments about his state of mind at the time of the crime, he remains, at his core, a man willing to betray his country because of greed," prosecutors told the court.

As a condition of his plea agreement, which lowered his sentence recommendation from 262 months to 156 months, Nozette was debriefed by law enforcement and intelligence officials. But "the value of these debriefings was limited. Defendant provided no actionable information. There were times that defendant's professed lack of recollection was baffling. There were other times when the FBI assessed that defendant gave uncooperative, less than complete, or untruthful responses. The Government, however, will not seek to hold defendant in breach of his plea agreement as, in the end, this plea results in an acceptable sentence, and saves the Government enormous resources."

Nozette's sentencing hearing is scheduled for March 21 in DC District Court.


What would happen if a 10 kiloton nuclear explosive were detonated in downtown Washington, DC at the intersection of 16th and K Streets NW?

That question is posed by a recent study performed for the Federal Emergency Management Agency. It assesses the impact of a nuclear terrorism incident in the nation's capital and seeks to derive the appropriate lessons for emergency response planning purposes.

It is clear that a nuclear detonation would "overwhelm response resources in the area." On the other hand, "the existing Washington, DC structures offered better than adequate protection [for a] shelter-in-place strategy [that] would reduce the number of potential acute radiation casualties by 98%," the study said.

See "National Capital Region: Key Response Planning Factors for the Aftermath of Nuclear Terrorism" by B.R. Buddemeier, et al, Lawrence Livermore National Laboratory, November 2011 (large pdf):


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

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