SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 74
August 12, 2013

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

LEAKS INSPIRE GAO REVIEW OF "CLASSIFICATION INFLATION"

"The recent disclosure of classified information regarding U.S. national security programs requires a thorough assessment of the current classification system," wrote Rep. Duncan Hunter in a letter to the Government Accountability Office, the investigative arm of Congress.

The leaks by Edward Snowden, in other words, are a sign that there is a serious problem in government secrecy policy.

In his June 19, 2013 letter, Rep. Hunter asked GAO to perform the desired assessment, and his request was endorsed by Rep. Martha Roby, chair of the House Armed Services Committee Subcommittee on Oversight and Investigations. In a July 30 reply, GAO accepted the request and said it would "begin the work shortly."

For Rep. Hunter, the starting point is a concern that unnecessary secrecy may put legitimate secrets at risk. Overclassification is bad security policy.

"With access to classified information contingent on the issuance of security clearances, overclassification stands to dangerously expand access to material that should ordinarily be limited," he wrote. He therefore posed a series of questions that cover a range of classification policy issues.

He asked GAO to determine "the degree to which material is classified that does not materially impact national security." This is one definition of overclassification, though it is not one that is used or recognized by the executive branch.

Under the executive order on classification, a national security secret need not "materially impact national security." It is enough if its unauthorized disclosure could reasonably be expected to cause damage to national security in the judgment of a person who is authorized to classify. If the authorized classifier's judgment reflects bias, inertia, erroneous or incomplete information-- well, the executive order has nothing to say about that.

The result, Rep. Hunter said in a news release, is that "There's real classification inflation going on, putting information that should be available to the public out of view and creating a degree of exposure by widening access to sensitive information that should be limited."

Rep. Hunter also asked GAO to review "the degree to which material is classified in excess of current security procedures," which is another form of overclassification. It refers to information that is be classified Top Secret when it should only be classified Secret, for example.

Rep. Hunter asked "Whether narrowing classification requirements would reduce the need for nearly 5 million individuals to hold security clearances, and whether reducing that number would limit security disclosures."

It stands to reason that less classification would likely entail the need for fewer clearances and that a leaner secrecy and security system would be easier to manage with improved quality control. But there is no particular reason to suppose that the number of leakers is directly proportional to the number of clearances.

Crucially, Rep. Hunter asked GAO to investigate "if there are accountability systems in place to review agency and employee classification decisions to identify persistent instances of overclassification." There aren't!

While classification guidance is supposed to be reviewed by the classifying agency itself every five years, and there are isolated mechanisms for challenging specific classification decisions, there is no systemic procedure for independent review and correction of classification judgments. There should be.

An extended argument for impartial review of classification decisions is here:

For good measure, Rep. Hunter asked GAO to consider "the degree to which excessive classification harms information sharing" and "the effectiveness of the process to declassify information."

Though his request letter was broadly framed with respect to classification policy generally, it appears that the GAO response will focus on classification activity within the Department of Defense. Rep. Hunter is a member of the House Armed Services Committee and Rep. Roby is a HASC subcommittee chair, and so DoD secrecy policy is clearly within their jurisdiction.

The unauthorized disclosures of classified information by Edward Snowden have presented numerous important issues of public policy. Is bulk collection of telephone and email records an acceptable practice, or should it be categorically proscribed? How did congressional oversight fail to accurately gauge and to effectively represent conflicted public sentiment concerning domestic surveillance? What is to be done with the Foreign Intelligence Surveillance Court?

But Rep. Hunter identified secrecy policy as a deeper systemic problem that also requires a constructive response. With the GAO's new engagement, and with the ongoing work of agency Inspectors General under the Reducing Over-classification Act, secrecy policy is now receiving some long overdue attention that may yet yield corrective action.

The pending GAO review of secrecy policy was previously reported in "Manning, Snowden Trigger First-of-its-Kind Secrecy Review" by Shane Harris, Foreign Policy, July 31; "'Classification inflation' at Pentagon under investigation: GAO" by Shaun Waterman, Washington Times, July 31; "Too many classified papers at Pentagon? Time for a secrecy audit" by Anna Mulrine, Christian Science Monitor, August 2.

WHEN CAN THE MILITARY SUPPORT CIVIL AUTHORITIES?

The Posse Comitatus Act of 1878 generally prohibits military forces from performing ordinary civilian law enforcement functions such as arrest, surveillance, interdiction, search and seizure.

But a newly updated Department of Defense doctrinal publication notes that, despite this prohibition, "There are several forms of direct assistance to civilian law enforcement by military personnel that are permitted under the Military Purpose Doctrine. The Military Purpose Doctrine provides that law enforcement actions that are performed primarily for a military purpose, even when incidentally assisting civil authorities, will not violate the PCA [Posse Comitatus Act]."

These may include investigations related to the Uniform Code of Military Justice, enforcement actions on a military installation, and measures to protect classified military information or equipment, among others identified by the DoD document.

The publication broadly addresses crisis response, support to law enforcement, and other forms of assistance. See "Defense Support of Civil Authorities," Joint Publication 3-28, July 31, 2013:

The publication introduces a new addition to the DoD lexicon: "complex catastrophe."

A complex catastrophe (which may "magnify requirements for defense support of civil authorities") is defined as: "Any natural or man-made incident, including cyberspace attack, power grid failure, and terrorism, which results in cascading failures of multiple, interdependent, critical, life-sustaining infrastructure sectors and causes extraordinary levels of mass casualties, damage or disruption severely affecting the population, environment, economy, public health, national morale, response efforts, and/or government functions."

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

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