SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 62
September 18, 2014

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

ENERGY DEPT TO REVIEW CLASSIFICATION STANDARDS FOR CLARITY

The Department of Energy will review its classification standards to improve their clarity and to eliminate possible ambiguities, the Administrator of the National Nuclear Security Administration told the Federation of American Scientists this week.

The issue arose in response to the case of James Doyle, a Los Alamos political scientist who published an article on nuclear weapons policy that was initially cleared for publication, but then was said to contain classified information. Doyle's employment at Los Alamos was later terminated in what was perceived by some to be an act of retaliation. (See "Nuclear weapons lab employee fired after publishing scathing critique of the arms race" by Douglas Birch, Center for Public Integrity, July 31, 2014.)

"It should not be possible for two reviewers to reach opposing conclusions as to whether a manuscript contains classified information or not," wrote FAS President Charles D. Ferguson in an August 21 letter to Energy Secretary Ernest Moniz. "But that is apparently what happened" in the Doyle case.

"Accordingly, we urge you to direct that the relevant classification guidance be reviewed and clarified to eliminate all potential ambiguity of the sort that was on display here," the FAS letter said.

"That is a worthwhile and welcome suggestion," replied NNSA Administrator Frank G. Klotz on September 15, "and we will undertake such a review as well."

"The Department of Energy fully subscribes to the principle and importance of academic freedom at our laboratories, and will not tolerate retaliation against nor dismissal of employees or contractors based on the opinions they express in scholarly publications and presentations."

"Without commenting on the particulars of Mr. Doyle's case, I have asked the Department's Inspector General to examine whether Mr. Doyle's termination resulted in whole or in part from the publication of an article he authored," Gen. Klotz wrote.

(See related stories in The Daily Beast, Albuquerque Journal.)

STATE SECRETS PRIVILEGE USED IMPROPERLY, COURT IS TOLD

When the government intervened in a private lawsuit to assert the state secrets privilege and to seek dismissal of the entire proceeding (Secrecy News, September 15), it acted improperly and misused the state secrets privilege, the attorney for the plaintiff in the case told the Court yesterday.

"The Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government's claims through the adversarial process, and limited the Court's opportunity to make an informed judgment," wrote Abbe D. Lowell, the plaintiff's attorney in Restis v. United Against Nuclear Iran.

Specifically, by refusing to identify the subject or scope of the privileged information, or even the agency that was asserting the privilege, the government has "violate[d] any semblance of due process" and "prevent[ed] the opposing party from understanding the claim in any fashion," he wrote.

The Government says that "the identity of the concerned federal agency, the particular information at issue, and the bases for the assertion of the state secrets privilege cannot be disclosed without revealing classified and privileged matters," according to a memorandum filed September 12.

But Mr. Lowell asked the Court to order the Government to file a public declaration in support of its privilege claim so that the Plaintiff could offer a substantive rebuttal.

"In the typical state secrets case, the Government will simultaneously file both a sealed ex parte declaration and a detailed public declaration," Mr. Lowell noted. "The Government has not offered any explanation as to why it cannot do so here. [In other state secrets cases,] there always is some way for the Government to identify the nature of its privilege claim without disclosing the privileged information itself."

"Absent further disclosure from the Government, the Plaintiffs cannot meaningfully respond to the Government's claim. The Plaintiffs cannot test whether the supposed evidence at issue is a state secret, and they also cannot test the relevance of that evidence to its case."

"In every other case of which we are aware, the Government made sufficient public disclosure of the nature of the state secrets and its reasons for seeking dismissal to allow those claims to be tested, and all Plaintiffs ask is that the Government do so here, so that Plaintiffs can then respond adequately to the actual motions filed," Mr. Lowell wrote.

"The Plaintiffs plan to advance their claims without using any state secrets," he noted, "and it is not clear how state secrets could be relevant to the defense."

CIA POSTS HUNDREDS OF DECLASSIFIED JOURNAL ARTICLES

The Central Intelligence Agency has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence, in an effort to settle a lawsuit brought by a former employee, Jeffrey Scudder. Until lately, the CIA had resisted release of the requested articles in softcopy format (Secrecy News, March 17), but the Agency eventually relented.

"Of the 419 documents that remain in dispute in Scudder, the CIA has produced 249 in full or in part by putting them up on the CIA website," the government informed Mr. Scudder's attorney, Mark S. Zaid, this week. They are posted here.

The newly posted articles cover a wide range of topics, and vary considerably in substance and originality. The CIA said that 170 other articles sought by Scudder had been withheld in full.

Jeffrey Scudder was profiled recently in the Washington Post ("CIA employee's quest to release information 'destroyed my entire career'" by Greg Miller, July 4, 2014).

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

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