SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 39
June 10, 2014

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

OVERCLASSIFICATION: IS THERE A LIMIT?

Is there any act of overclassification that is so egregrious that the classifier would be held accountable for abusing his classification authority?

The answer is unknown, since no one has ever been held accountable in such a case.

As far as can be determined, no classifier has ever been found to have willfully or culpably defied the rules set forth in the President's executive order on national security classification.

In a complaint filed last year with the Information Security Oversight Office (ISOO), a Marine Corps officer argued that private video recordings and related "trophy images" including one depicting Marines urinating on human remains in Afghanistan had been classified in violation of the executive order.

Major James W. Weirick asked ISOO Director John F. Fitzpatrick to render a judgment that the urination video and related images had been improperly classified. Among other reasons, Major Weirick wrote that they originated as private documents, that one video had been posted online and that all were outside of the control of the U.S. Government, a prerequisite for classification.

"This video was captured on a personal video recorder and only became known to the U.S. Government after it surfaced on YouTube, and other media outlets, in January 2012. The Government could never account for all the copies of this information and made no attempt to account for this information," Major Weirick wrote in his November 14, 2013 complaint.

In a May 30 response, ISOO Director John P. Fitzpatrick said he took the complaint seriously and that he had undertaken a review of the matter, but that he ultimately decided that it did not require corrective action.

Mr. Fitzpatrick "met with all USMC officials directly involved in the decision to classify" as well as with Major Weirick. He determined that the video that had been uploaded to YouTube had in fact been specifically excluded from the original classification decision (although dozens of other, similar videos and photographs were classified).

"I spoke at length with the original classification authority (OCA) who made the classification decision. I am convinced that the primary motivation for the classification decision was the safety of U.S. military personnel in Afghanistan and the protection of specific tactics, techniques, procedures, and equipment," Mr. Fitzpatrick wrote in his May 30, 2014 response to Major Weirick.

J. William Leonard, who was Mr. Fitzpatrick's predecessor as ISOO Director, expressed dismay at the ISOO decision not to pursue the matter further.

He said that the classified images could not be properly classified because they were not under effective or exclusive U.S. government control. "The USG had control of *copies* of the images, but not the images themselves," which had been freely and informally exchanged for months. "The same rationale that applied to not classifying the YouTube video also applied to the other images as well since there were undoubtedly other copies beyond the government's control."

"Even if you accepted the claim regarding the need to protect sensitive TTP [tactics, techniques and procedures], the troubling claim of both USMC and ISOO is that it was entirely appropriate to classify images and video that depicted nothing more than Marines posing with corpses, i.e. the 'trophy' photos. Such photos depicted nothing more than unlawful conduct in a war zone," Mr. Leonard said.

"I am extremely concerned that the integrity of the classification system continues to be severely undermined by the complete absence of accountability in instances such as this clear abuse of classification authority," Mr. Leonard wrote in an endorsement of Major Weirick's complaint.

"The provisions of the [executive] order establishing accountability are more feckless than the 55 mph speed limit on the Capital Beltway," Mr. Leonard said. "At least on the Beltway, if you go fast enough you'll eventually get a ticket. In the classification system, by virtue of never holding anyone or any agency accountable for abusing the system, we really don't know how far you can go."

* * *

A 2012 classification guide issued by U.S. Central Command authorizes classification of information if its disclosure would "embarrass any Coalition members" (at pp. I-4 to I-5).

This provision appears to be inconsistent with Executive Order 12356, Section 1.7, which states: "In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: [...] prevent embarrassment to a person, organization, or agency."

NSA RELEASES NSPD-54 ON CYBERSECURITY POLICY

In January 2008, the Bush Administration issued the Top Secret National Security Presidential Directive 54 on Cybersecurity Policy which "establishes United States policy, strategy, guidelines, and implementation actions to secure cyberspace."

Despite its relevance to a central public policy issue, both the Bush and Obama Administrations had refused to release the Directive.

But last week, in response to a five-year Freedom of Information Act effort by the Electronic Privacy Information Center, the National Security Agency released a lightly redacted version of the document, most of which had been unclassified all along.

"This Directive, which is the foundational legal document for all cybersecurity policies in the United States, evidences government efforts to enlist private sector companies, more broadly monitor Internet activity, and develop offensive cybersecurity capability," said EPIC in its release of the document.

HOUSE ADOPTS A COMPREHENSIVE REPORTERS PRIVILEGE

Late at night on Thursday, May 29, Rep. Alan Grayson (D-FL) introduced an amendment to the FY 2015 Commerce, Justice and Science Appropriations bill to provide a near-absolute shield for reporters against compulsory disclosure of their confidential sources.

"None of the funds made available by this Act may be used to compel a journalist or reporter to testify about information or sources that the journalist or reporter states in a motion to quash the subpoena that he has obtained as a journalist or reporter and that he regards as confidential," the amendment reads.

The proposal initially seemed to have been voted down on a voice vote, but Rep. Grayson demanded a vote count, and the measure was adopted in the House bill by a vote of 225-183.

In a statement published in yesterday's Congressional Record, Rep. Grayson said: "This amendment is to be construed liberally and broadly, to effectuate its purpose of protecting journalists and their sources from any coercive action taken by the government and the legal system. Its spirit applies to other government agencies, and to litigation between private parties. The terms 'information or sources' and 'confidential' are to be given the widest possible construction."

"For purposes of this amendment, the definition of a 'reporter' includes: any person, natural person, or entity who releases, reports on, or provides information of a classified or unclassified nature to a public audience or on the internet, does so on a regular basis, and receives compensation for doing so. The term 'reporter' is a description of a profession."

The term "journalist" is broader:

"For purposes of this amendment, the definition of a 'journalist' includes: any person, natural person, or entity who releases, reports on, or provides information of a classified or unclassified nature to a public audience or on the internet, and does so on a regular or an irregular basis. The term 'journalism' describes an act, not a profession. A person, entity, or natural person is a journalist so long as he or she is engaged in the act of journalism. An act of journalism involves the collection, analysis, description, dissemination, and/or publication of information," Rep. Grayson said.

SECRECY SYSTEM SHOWS NEW SIGNS OF CONTRACTION

In 2012, the number of newly created national security secrets (or "original classification decisions") dropped by a startling 42% from the year before, according to the Information Security Oversight Office. It was the largest annual drop ever reported by ISOO, yielding the lowest annual production of new secrets since such numbers began to be collected in 1979. ("Secrecy System Shows Signs of Contraction," Secrecy News, June 25, 2013).

Now it seems that this 2012 decline in the production of new secrets was not merely a fluke, but perhaps the start of a trend. The latest ISOO annual report indicates that in 2013 the number of reported new secrets continued to decline by an additional 20% to 58,794 original classification decisions, another new record low.

For the first time in a decade, the number of "derivative classification decisions" in which previously classified information is incorporated into new records also declined in 2013, ISOO reported.

"Agencies reported a total of 80.12 million derivative classification decisions in FY 2013, a decrease of 16 percent from FY 2012. Although we can not pinpoint a single cause for this decrease, we do know it was due in part to the refinement and correction of estimation practices employed by some agencies. Other possible contributing factors could be the recent emphasis on proper classification procedures coming from the expanded agency self-inspection requirements, the inspector-general reviews conducted in response to the Reducing Over-Classification Act, and the Fundamental Classification Guidance Reviews that all agencies conducted in 2012," the ISOO report said.

The Information Security Oversight Office, housed at the National Archives, reports to the President of the United States on national security classification policy and oversees the operation of the classification system.

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

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