SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 32
May 1, 2014

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

USING CLASSIFICATION CHALLENGES TO CURB SECRECY

When government employees believe that classified information in their possession is improperly classified, they "are encouraged and expected" to challenge its classification status, according to President Obama's executive order 13526 (section 1.8). And sometimes they do.

In Fiscal Year 2012, there were 402 classification challenges filed by government employees. One third of them were granted in whole or in part, according to statistics published by the Information Security Oversight Office.

Such classification challenges have the potential to serve as a powerful internal check on over-classification. But that potential is not yet being fully realized, either because the procedure is unknown to employees or because its use is implicitly discouraged.

"We found that many DOJ officials were unaware of DOJ's formal classification challenge process," according to a 2013 Department of Justice Inspector General report.

At the Department of Defense, "few instances were encountered where interviewees challenged a classification," a DoD IG report said. Although DoD guidance "provides for classification challenges, it does not reflect the intent of E.O. 13526 which states that such challenges are 'encouraged'."

By contrast, at the Department of Homeland Security, "DHS senior management we interviewed believes that challenging the classification status of information is part of an employee's job." Furthermore, a DHS IG review found, the Department "honors a challenger's request for anonymity and serves as his or her agent in processing the challenge. DHS has a secure capability to receive information, allegations, or classification challenges."

The provision for classification challenges in the executive order can only be invoked by authorized holders of the information. Members of the general public cannot file such challenges. Although a member of the public may request declassification review of a particular document under existing standards, he or she is not empowered to dispute the validity of those standards or to challenge the classification status of an entire topical area.

One partial exception to this rule is a Department of Energy regulation in 10 C.F.R. 1045.20 that invites the public to propose the declassification of particular items of information classified under the Atomic Energy Act.

Last June 30, the Federation of American Scientists filed such a petition seeking declassification of "the total size of the U.S. nuclear stockpile and the number of weapons dismantled annually as of the end of each fiscal year from FY 2010 through FY 2013."

We filed the petition after the Department of Defense refused to release the requested data. Requests for current stockpile information were denied even though -- in a major departure from prior government secrecy policy -- the Obama Administration in May 2010 had disclosed annual stockpile figures for previous years up through FY 2009. (See "Pentagon Reverts to Nuclear Stockpile Secrecy," Secrecy News, July 1, 2013.)

So invoking DOE regulation 10 CFR 1045.20, we asked for reconsideration of this refusal. It is apparently the first time that the DOE regulation has ever been employed by a public petitioner since the provision was adopted in the 1990s.

On April 29, the requested information was disclosed in a State Department Fact Sheet. It reported a stockpile total of 4,804 warheads in September 2013, down from the last published figure of 5,113 in September 2009.

Although the release matched our request, providing neither more nor less information than we asked for, that was merely "serendipitous," said a US government official. The FAS petition was "not a major driver" of the declassification process, he said. "The White House wanted to get this done all along."

That may be so. (Although if the White House wanted it disclosed all along, it's not clear why this information was actively withheld each year for the past four years.)

In any case, the DOE regulation inviting public proposals for declassification is assuming new importance. It now serves as a designated feeder to a new interagency review process for declassification of so-called Formerly Restricted Data (FRD), which is a category of information classified under the Atomic Energy Act.

At least one new petition for declassification has recently been submitted by the National Security Archive, we have another one in the works, and increased public use of the procedure is anticipated.

The DOE regulation extends the power of classification challenges to members of the public. As such, it represents a "best practice" that could usefully be replicated in other agencies, and in the context of national security information generally (not just nuclear matters).

Of course, the key to a successful classification challenge is that it must be reviewed impartially by someone other than the original classifier.

SELECTIVE PROSECUTION AND THE ESPIONAGE ACT

Government officials disclose classified information to the press with some frequency, but only rarely are they prosecuted for it.

Such selective prosecution renders the law unfair, said attorney Abbe Lowell at the April 2 sentencing hearing of his client, Stephen Kim, who pled guilty to an unauthorized disclosure of classified information.

Mr. Kim, a former State Department Korea specialist who could have been sentenced to 10 years in prison and a fine of $250,000, received a 13 month jail sentence. The transcript of the April 2 sentencing hearing is now available here:

The fact that senior officials go unpunished for comparable or greater offenses "doesn't mean that Mr. Kim didn't violate the law," said Mr. Lowell. But "it means that our system is out of balance."

The "antiquated" Espionage Act that is used to prosecute leaks is "one very blunt tool," Mr. Lowell said.

Still, "There's some good that can come from this case," Mr. Lowell suggested. He noted that it had already led the Department of Justice to revise its policy and practice on investigating or charging members of the news media.

In other leak-related news, the Obama Administration argued that there is no privilege that would excuse New York Times reporter James Risen from testifying in court as to the identity of the source who provided him with classified information. In an April 25 brief, the Administration asked the U.S. Supreme Court to reject Mr. Risen's petition to review the matter.

Meanwhile, former Navy linguist James Hitselberger, who had been charged under the Espionage Act with unlawful retention of national defense information (18 USC 793e), pleaded guilty on April 25 to a lesser offense of unauthorized retention of classified information (18 USC 1924), which carries a sentence of up to one year in prison. He is to be sentenced on July 17.

FISA ANNUAL REPORT RECEDES IN IMPORTANCE

For many years, the Justice Department's annual report to Congress on the use of the Foreign Intelligence Surveillance Act was a primary source of public information on intelligence surveillance activity and on the workings of the Foreign Intelligence Surveillance Court. Today, that is less true than ever before.

The latest annual report, released by DOJ yesterday, indicated that in 2013 the Government submitted 1,655 applications for electronic surveillance, physical search or both. Of the 1,588 applications that included electronic surveillance, none were denied by the Court. But that hardly provides an accurate sense of the scope or the scale of intelligence surveillance activity.

The significance of this information, and other statistical data on access to "business records" and the use of national security letters, has receded in the wake of the far more substantial disclosures of the post-Snowden era. For example, we now know that the bland term "business records" extends in principle to everyone's telephone call records.

In truth, the annual DOJ reports to Congress were never very informative, and they never provided useful data that could inform public policy in a practical way. They represented a facade of transparency with little or no real content. Today, they are practically irrelevant.

More informative and altogether more important is the new website of the Foreign Intelligence Surveillance Court, which has recently been revamped.

F-35 JOINT STRIKE FIGHTER PROGRAM, MORE FROM CRS

Congress continues to instruct the Congressional Research Service not to make its products directly available to the public without prior approval.

"No funds in the Congressional Research Service can be used to publish or prepare material to be issued by the Library of Congress unless approved by the appropriate committees," according to language in the latest House report on Legislative Branch Appropriations for FY 2015.

But since no CRS funds are being expended to make the following reports available to the public, the letter of the law is fulfilled.

F-35 Joint Strike Fighter (JSF) Program: Background and Issues for Congress, April 29, 2014:

Defense Surplus Equipment Disposal: Background Information, April 29, 2014:

Congressional Primer on Responding to Major Disasters and Emergencies, April 30, 2014:

Immigration Policies and Issues on Health-Related Grounds for Exclusion, April 28, 2014:

NAFTA at 20: Overview and Trade Effects, April 28, 2014:

Multilateral Development Banks: How the United States Makes and Implements Policy, April 29, 2014:

Changes in the Arctic: Background and Issues for Congress, April 28, 2014:

Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, April 28, 2014:

Iran's Nuclear Program: Tehran's Compliance with International Obligations, April 28, 2014:

No Remedy for Drone Deaths, CRS Legal Sidebar, April 30, 2014:

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

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