SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 56
June 11, 2012

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

SOME UNAUTHORIZED DISCLOSURES OF CLASSIFIED INFO ARE ROUTINE

The brewing controversy over leaks of classified information presumes that disclosures of classified information to unauthorized persons are always impermissible and undesirable. But that presumption does not correspond precisely to the reality of government operations as they are conducted in practice.

The leaders of the House and Senate Intelligence Committees said last week that they would work "to ensure that criminal and administrative measures are taken each time sensitive information is improperly disclosed."

In fact, however, classified information is frequently disclosed at the interface between national security agencies and the news media. This is not necessarily a surreptitious or underhanded process. Rather, though it is not often discussed, it is how the system normally functions.

"I refer to classified information a lot," admitted then-Pentagon press secretary Kenneth Bacon at a November 2000 press briefing, when asked whether all of his statements from the podium were unclassified.

"There are certain questions that I can only answer by referring to classified information," Mr. Bacon said at that time, adding that "I do this carefully, after consultation with our intelligence authorities, to make sure that I don't answer questions in a way that causes any problems."

This type of routine public discussion of classified information would have been obstructed if there were a law that categorically prohibited all unauthorized disclosures of classified information. When Congress passed such a measure in 2000, Mr. Bacon and other executive branch officials quietly opposed it, and it was ultimately vetoed by President Clinton.

"There are certain types of questions that can only be answered with references to classified information," Mr. Bacon told reporters following the presidential veto. "One of the concerns that I and other spokespeople had [about the vetoed provision was that] it would prevent reference to classified information in answering everyday questions."

Thus, the peculiar reality is that certain officials routinely take it upon themselves to discuss classified information with unauthorized persons. They do so not to subvert policy but to explain it, to defend it and to execute it. Though it may seem counterintuitive (and may in fact violate formal procedures), sometimes officials will even reveal currently classified information in order to enhance security.

Veteran aerospace journalist Craig Covault wrote an article last week in which he recalled once such incident in the 1970s. At that time Mr. Covault was the space technology editor at Aviation Week, which was sometimes referred to as "Aviation Leak" because of the prevalence of (actual or purported) classified information in its pages. In the course of his reporting, Mr. Covault learned some details about the KH-11 intelligence satellite shortly following its first launch in December 1976. After he queried Air Force public affairs about the matter, he received an urgent summons to discuss it that afternoon with the Chairman of the Joint Chiefs of Staff. As he described it:

http://www.americaspace.org/?p=20825

"I showed up at the Pentagon at the appointed time and was taken up to the suite of offices used by Joint Chiefs Of Staff, then ushered into the office of Air Force General David Jones, a four star that had commanded the Strategic Air Command before becoming Chairman. My escort then departed and it was just Jones and myself left to discuss this issue."

"He said he was familiar with my coverage then asked 'what have you got?' I explained in significant detail what sources had told me about the new reconnaissance system."

"'You are exactly right' said Jones, 'and now I am going to give you the reasons why we request that you not publish'."

"He then cited specific examples where the Soviets were not taking any measures to conceal what they were doing as this first KH-11 approached and passed overhead. Unlike the KH-9s, they did not realize yet that this was a high resolution imaging spacecraft that could see people, and tell if they were carrying a lunchbox or not."

"Jones said the Soviets were leaving missile silo doors open allowing us to 'look right in' and keeping their own new secret aircraft in the open. If I published, it would ruin a major U. S. intelligence advantage. Jones had clearly demonstrated that no articles on the KH-11 should be written at that time so I agreed to his request to hold."

"And on the way out he asked. 'Now is there anything I can do for you?'"

"There was certainly no quid pro quo in my mind for this discussion, so his question was a surprise. But when he asked that, I told him I had not received any consistent backgrounders on the Soviet space program. 'You will have them now,' Gen. Jones said, and for the next two years I received classified backgrounders on the Soviet space program at the Defense Intelligence Agency."

This is a remarkable anecdote in several respects. Significantly, General Jones did not declassify the information about the KH-11 satellite, which remained highly classified. Instead, he simply revealed it to Mr. Covault, an uncleared reporter, even though this was technically inconsistent with procedures in effect then and now. Gen. Jones did not insist that Mr. Covault sign a non-disclosure agreement, or that he submit his work to some kind of prepublication review. Rather, he simply argued the case for secrecy on the merits, and he succeeded in persuading Mr. Covault not to publish the information in question, to the presumptive benefit of national security. (On another occasion described by Mr. Covault in the same article, he found the government's request not to publish was unpersuasive and disregarded it.)

Was General Jones guilty of "leaking" information to Mr. Covault? Should the Chairman of the Joint Chiefs of Staff have been fired or sent to prison for his actions? He certainly disclosed highly classified information to an unauthorized person, and he did so not once but repeatedly through the ongoing classified briefings that he arranged for Mr. Covault.

In other respects, though, this story is quite unremarkable. Many national security reporters who write about classified government activities and seek a response from a government spokesman will have a similar (though perhaps less dramatic) tale to tell.

If members of Congress are determined to impose punitive measures "each time" that classified information is disclosed, then they will be confusing means (secrecy) and ends (security). They run the risk of turning an already sluggish classification system into one that is so rigid as to be self-defeating.

There is no doubt such a thing as a wrongful and unlawful disclosure of classified information, but it seems that there are also wise, prudent and appropriate disclosures of classified information. The actions of General Jones -- or of Kenneth Bacon or innumerable others who have acknowledged or revealed classified information in similar circumstances -- were not those of a criminal, and it would almost certainly be counterproductive to try to designate them categorically as crimes.

Some of the challenges involved in prosecuting a leak case were discussed in "For U.S. Inquiries on Leaks, a Difficult Road to Prosecution" by Charlie Savage, New York Times, June 10, 2012

LOOPHOLE IN LAW MAY ALLOW WARRANTLESS SURVEILLANCE OF AMERICANS

Members of the Senate Intelligence Committee are divided over whether there is a loophole in current law which would permit government agencies to monitor the communications of American citizens without any kind of warrant or other judicial authorization.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

"We have concluded... that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens," wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole. Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions "do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA."

It is unclear from the public record which of these conflicting positions is more likely to be correct.

Senators Wyden and Udall offered an amendment to explicitly prohibit searches of U.S. persons' communications that are incidentally gathered in the course of FISA surveillance of foreign persons abroad unless there is a warrant or other authorization permitting surveillance of that specific person, but their amendment was voted down in Committee by 13-2.

"We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number," Sens. Wyden and Udall wrote. An Inspector General review is now underway to determine whether it is feasible to estimate the number, Sen. Feinstein noted.

See FAA Sunsets Extension Act of 2012, Senate Report 112-174, June 7, 2012:

The first three semi-annual reports on compliance with the procedures of Section 702 of the FISA Amendments Act were recently released in redacted form by the Office of the Director of National Intelligence.

Those reports generally found no evidence of "any intentional or willful attempts to violate or circumvent the requirements of the Act." On the other hand, "certain types of compliance incidents continue to occur, indicating the need for continued focus on measures to address underlying causes, including the potential need for additional measures."

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

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