SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 28
April 8, 2014

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

COUNTERING CIA'S CONFLICT OF INTEREST IN DECLASSIFICATION

Last week the Senate Intelligence Committee voted to submit the 480-page executive summary, findings and conclusions of its five-year investigation into the post-9/11 CIA Detention and Interrogation Program for declassification review. But in an obvious conflict of interest, the review is expected to be performed by the CIA itself.

"The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen," said Sen. Dianne Feinstein, the chair the Senate Intelligence Committee, in an April 3 statement. "This is not what Americans do."

The standard process for declassification therefore puts the CIA in the awkward and untenable position of deciding whether to enable (or to prevent) the release of information that portrays the Agency itself, or some of its personnel, as having engaged in behavior that was brutal, lawless, and unaccountable.

Instead, it is the White House, not the CIA, that should lead the declassification process, said Sen. Feinstein, as reported today by McClatchy Newspapers.

"As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process," Sen. Feinstein wrote. ("Feinstein: CIA should not lead declassification review of report about interrogation tactics" by Ali Watkins, McClatchy, April 8).

However, it may not be possible to exclude CIA from the declassification process altogether, since it was CIA that generated and classified most or all of the information at issue. While the President certainly has the authority to declassify the report, the White House would be unlikely to possess the detailed knowledge of the underlying records that would be needed to do so independently.

But there are ways to minimize and counteract CIA's conflict of interest in declassification.

First of all, the Senate Intelligence Committee will be in a position to make its own judgment as to the validity of any CIA redactions of the report. Unlike the typical FOIA requester who pursues a document he has never seen, the Senate Committee knows exactly what is in the report, which it produced. If CIA moves to withhold information in ways that are frivolous, questionable or unfounded in genuine national security concerns, the Committee will recognize that immediately and will be able to elevate those specific disagreements with the CIA to the White House for resolution.

Another possible option would be for the Senate Committee to engage the services of the Public Interest Declassification Board (PIDB).

That Board's statutory purpose is, among other things, "To review and make recommendations to the President in a timely manner with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records."

While the PIDB, which is made up of non-governmental personnel, cannot declassify anything on its own authority, it could serve to backstop the regular declassification process with an independent perspective, and could also provide political cover for the President to overrule an unwarranted refusal to declassify.

In 2006, members of the Senate Intelligence Committee asked the Public Interest Declassification Board to review an Administration decision to classify portions of two Committee reports on prewar intelligence on Iraq. At the time, the Board said it doubted that it could carry out the review without White House authorization.

So Senators Ron Wyden and Russ Feingold introduced legislative language to clarify that the Board is authorized to review declassification proposals -- or evaluate agency refusals to declassify -- at the initiative of a congressional committee of jurisdiction. Their measure was enacted into law in the FY 2010 Intelligence Authorization Act.

While this function has never yet been performed by the Board, it remains available to Congress at its discretion.

"The classification system exists to protect national security, but its outdated design and implementation often hinders that mission," wrote PIDB chair Amb. Nancy E. Soderberg in a November 2012 letter to President Obama transmitting a Board report.

"The system is compromised by over-classification and, not coincidentally, by increasing instances of unauthorized disclosures. This undermines the credibility of the classification system, blurs the focus on what truly requires protection, and fails to serve the public interest. Notwithstanding the best efforts of information security professionals, the current system is outmoded and unsustainable; transformation is not simply advisable but imperative," she wrote.

CIA AGREES TO PROVIDE SOFTCOPY RECORDS TO REQUESTER

After the Central Intelligence Agency refused to release records requested under the Freedom of Information Act in softcopy format, requester Jeffrey Scudder filed a lawsuit against the Agency demanding that it comply, and he received a rather sympathetic hearing from the judge. (CIA's Refusal to Release Softcopy Records Challenged in Court, Secrecy News, March 17, 2004).

Yesterday the parties to the dispute reported that they found "a creative solution... that will render the issue moot."

"Defendant [CIA] has agreed to provide the 419 records that Plaintiff has requested in an electronic format by putting PDF copies of the requested records on its website," where they can be downloaded at will. CIA will also refund the charges it demanded for printing out the electronic documents.

While this seems like a satisfactory solution for requester Scudder, it leaves the underlying problem, which is also faced by other requesters, unresolved.

GARWIN: THE MOVIE

Physicist and problem solver extraordinaire Richard L. Garwin is the subject of a new documentary film, "Garwin":

A screening of the film, sponsored by FAS and the American Association for the Advancement of Science, will be held on April 22 in Washington, DC.

BOOK: SECRETS AND LEAKS BY RAHUL SAGAR

"Secrets and Leaks: The Dilemma of State Secrecy" is the title of a new (2013) book by Princeton political scientist Rahul Sagar.

The book has many interesting features and develops some novel arguments on leaks. I reviewed it for the Lawfare blog here:

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

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