SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 62
July 8, 2013

Secrecy News Blog: http://blogs.fas.org/secrecy/

INSPECTOR GENERAL CLASSIFICATION REVIEWS DUE IN SEPTEMBER

The inspector general of each executive branch agency that classifies national security information is required to produce an evaluation of the agency's classification program by the end of September, pursuant to the Reducing Over-classification Act of 2010. The goal of the reviews is to identify policies and procedures "that may be contributing to persistent misclassification of material."

This is not a straightforward assignment because classification is not a purely objective process that lends itself to external validation; rather, it is an expression of presidentially-delegated authority. And if proper classification is a matter of judgment, then so is overclassification.

"Classifying and controlling the dissemination of information is an inherently subjective process," said the Department of Defense Office of Inspector General, which prepared guidance earlier this year for other agencies' inspectors general to help them conduct the required classification reviews.

"Key terminology, such as 'over-classification' and 'damage to national security' has not been defined [by executive order or regulation], causing those determinations to be made by personnel in the Departments and Agencies," the DoD IG guidance observed.

But having achieved this insight, the DoD IG guidance does not consider those subjective "determinations" any further. Instead, it retreats into matters can be objectively assessed and measured, focusing on the faithful implementation of the executive order's requirements. This is not a useless exercise, but if that is as far as the IG evaluations go, they will not have grasped the root of the problem.

The essence of over-classification is not located in mistaken markings of documents or in non-compliance with the formal procedures of the executive order. It is to be found above all in an official's subjective "determination" that classification is necessary. Thus, for example, when an agency's classification judgment is overruled by the Interagency Security Classification Appeals Panel -- which happens with some frequency -- it is not because of an error in procedure but because of an error in judgment.

But the official DoD guidance that has been provided for conducting the pending Inspector General reviews is not well suited for identifying (much less correcting) such errors in classification judgment. That would require something akin to a peer review process that would evaluate individual classification decisions on their national security merits and, if appropriate, flag them for revision. Unfortunately, a probing review of this sort does not seem to be on the agenda of the Inspectors General.

On June 21, the Director of National Intelligence issued an updated version of Intelligence Community Directive 710 on Classification Management. The revised Directive somewhat belatedly reflects the requirements of the December 2009 executive order 13526 on classification policy.

So the forthcoming Inspector General review will be able to confirm that intelligence community classification guidance is now consistent with executive branch policy. But whether over-classification has thereby been reduced in the slightest is a separate question.

BEHIND THE SCENES AT THE CONGRESSIONAL RESEARCH SERVICE

A long-running personnel dispute at the Congressional Research Service offers up conflicting visions of the proper role of the congressional support agency, which provides policy and legal analysis to Congress.

In 2009, then-CRS Director Daniel Mulhollan fired then-CRS Division Chief Col. Morris Davis, a former Guantanamo prosecutor, after Davis publicly criticized the military commission process in an op-ed article in the Wall Street Journal. ("CRS Fires a Division Chief," Secrecy News, December 4, 2009).

By engaging in public controversy (even as a private citizen), Col. Davis had deviated from CRS norms, according to Library of Congress General Counsel Elizabeth Pugh.

"Because the sole mission of CRS is providing objective and non-partisan research and analysis to Congress to aid in the legislative process, CRS expects its employees to conduct themselves appropriately at all times and to exercise good judgment in the performance of their duties for the Congress. This include: dealings with the media and outside writing or speaking engagements. Hence, CRS staff members must avoid conduct that would undermine the appearance of objectivity and non-partisanship and adhere to established CRS procedures," Ms. Pugh wrote in a December 2009 letter to the American Civil Liberties Union, which has represented Mr. Davis in a lawsuit against former CRS Director Mulhollan and the Library of Congress.

But the notion that analytical non-partisanship implies non-participation in matters of controversy is a misconception, wrote former CRS analyst Richard F. Grimmett in a ringing declaration filed June 28 in support of Mr. Davis.

"It is simply not possible for CRS analysts to do their job to provide Congress with an expert, non-partisan analysis of key issues without risking some controversy," Mr. Grimmett wrote. "There is no fully neutral, totally non-controversial way to address the key elements of a contested policy issue."

"CRS analysts cannot fulfill the mandate of their jobs to serve the U.S. Congress as non-partisan experts in their subject areas without addressing, in the course of their written and briefing work, issues that are highly charged politically," he wrote.

As one example of a CRS product that generated "significant public controversy," Mr. Grimmett cited a January 2006 memorandum on the Bush Administration's warrantless surveillance program. The CRS memorandum, which was widely reported in the press, concluded that it was "unlikely" that the program had been authorized by Congress. This finding left an intelligence committee chairman "extremely upset" -- at the memorandum, not the surveillance program. (The cited memorandum may have had some additional resonance since the lawsuit brought by Morris Davis and the ACLU is being heard by Judge Reggie Walton, who is also the presiding judge of the Foreign Intelligence Surveillance Court.)

But the authors of that CRS memorandum were not chastised or disciplined, Mr. Grimmett noted. On the contrary, their work was considered exemplary within CRS.

"CRS is charged in the Legislative Reorganization Act of 1970 with being a 'non-partisan' resource for the U.S. Congress," Grimmett wrote. "That Act does not stipulate that CRS work products be neutral, but it does stipulate that CRS carry out its work 'without partisan bias'."

By contrast, the instruction given to CRS employees by then-CRS Director Mulhollan to maintain neutrality "was a vague and confusing directive lacking in appreciation of the political environment in which CRS analysts actually work, and the purpose for which CRS was established in the first place," he wrote.

As appealing as Mr. Grimmett's perspective may be, one could say that it too is "lacking in appreciation of the political environmental in which CRS analysts actually work." It assumes that Congress truly wants an independent, critical analysis of divisive political issues. But that may not be the case. The Office of Technology Assessment, a sister agency to CRS, was famously disestablished by Congress in 1995 despite the generally high quality of its work, much of which retains value decades later. And congressional leaders have been notably silent on the dispute between Mr. Davis and Mr. Mulhollan, implicitly siding with CRS management and the Library of Congress against Mr. Davis. Congress also continues to irrationally insist that CRS reports, even though non-confidential, should not be publicly distributed online by CRS.

Meanwhile, the fact is that most CRS reports are not controversial in any sense. In most cases, they provide a balanced, authoritative account of a current policy issue. In some cases, as in many of the reports on U.S. arms sales authored by Mr. Grimmett in the course of his CRS career, they reflect privileged access to government information that is not available elsewhere. In a few cases, CRS experts will render a judgment on a matter of public controversy. It is the future of the latter category of reports that may be at stake in outcome of the Morris Davis proceeding.

"Due to the important but frequently divisive nature of the public policy and legal issues with which CRS analysts must grapple, it is not realistic to expect well-researched and factually-based reports and memoranda by CRS experts on such subjects to be neutral and to avoid generating controversy among political figures who may disagree with the substance of a non-partisan CRS product," Mr. Grimmett wrote.

"To my knowledge, during my decades of service as a CRS analyst, the complaints lodged against CRS reports and memoranda were nearly always made because the analysis and commentaries in them in some manner did not lend support to the partisan view or political philosophy of the complaining staff person or member of Congress," he wrote.

The latest CRS products include the following.

Pakistan: U.S. Foreign Assistance, updated July 1, 2013:

Puerto Rico's Political Status and the 2012 Plebiscite: Background and Key Questions, updated June 25, 2013:

Cloture Attempts on Nominations: Data and Historical Development, updated June 26, 2013:

Wildfire Management: Hotshot Crews, July 1, 2013:

Col. Davis is set to testify today as a defense witness in the court martial of Pfc. Bradley Manning.

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

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