SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 67
October 9, 2014

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

REPORT ON DISCLOSURES TO THE MEDIA IS CLASSIFIED

A report to Congress on authorized disclosures of classified intelligence to the media -- not unauthorized disclosures -- is classified and is exempt from disclosure under the Freedom of Information Act, the National Security Agency said.

The notion of an authorized disclosure of classified information is close to being a contradiction in terms. If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified? And yet, it seems that there is such a thing.

Confronted by a pressing question from a reporter on a classified matter, an official might opt to acknowledge or disclose classified information in response, without necessarily intending to broadcast that information to everyone. In such cases, the information might be disclosed without being declassified, especially if it is already known to the reporter through other channels.

In the Intelligence Authorization Act for FY 2013 (sec. 504), Congress directed that "In the event of an authorized disclosure of national intelligence" to the media, the government official responsible for authorizing the disclosure shall notify Congress in a timely fashion whenever the intelligence disclosed is classified (or declassified for the purpose of the disclosure).

The purpose of that requirement was to ensure that the congressional intelligence committees are made aware of authorized disclosures to the press "so that, among other things, these authorized disclosures may be distinguished from unauthorized 'leaks'," according to the Senate report on the FY2013 intelligence bill.

So what disclosures of classified intelligence to the media were approved by government officials and reported to Congress, we asked earlier this year? The National Security Agency refuses to disclose those disclosures.

"The document responsive to your request has been reviewed by this Agency as required by the FOIA and has been found to be currently and properly classified in accordance with Executive Order 13526," according to an October 2 letter signed by retiring NSA FOIA chief Pamela N. Phillips. "The document is classified because its disclosure could reasonably be expected to cause exceptionally grave damage to the national security."

We appealed the denial.

"It is well established that information, including classified information, that has been publicly disclosed on an authorized basis loses its exemption from disclosure under FOIA," the FAS appeal letter said.

"Since the requested document addresses 'authorized public disclosures,' the substance of those authorized disclosures may no longer be withheld."

INSIDER THREAT PROGRAM MAY NOT BE READY BY 2017

Security policies in the executive branch are being overhauled in response to a potential "insider threat." But while some progress is being made, the intended functionality will not be available for several more years to come.

The insider threat includes "the threat of those insiders who may use their authorized access to compromise classified information." Three years ago, due in part to the unauthorized disclosures by then-Pfc. Bradley Manning to WikiLeaks, President Obama issued Executive Order 13587 directing agencies to "implement an insider threat detection and prevention program."

Last week, the Department of Defense finally issued an internal directive establishing department policy on the subject. The policy aims to establish "an integrated capability to monitor and audit information for insider threat detection and mitigation," including "the monitoring of user activity on DoD information networks." See "The DoD Insider Threat Program," DoD Directive 5205.16, September 30, 2014:

But that is easier said than done. The timetable for achieving a government-wide insider threat program does not envision an Initial Operating Capability until January 2017, and even the achievement of that operational milestone is considered to be "at risk," according to the latest quarterly report on Insider Threat and Security Clearance Reform (at p. 15).

Prior to 2010, Army regulations "never adequately addressed the 'insider threat'," said a 2011 Army investigative report on the Compromise of Classified Information to Wikileaks that was released by the Army in redacted form last month.

"Disenchanted idealists are... a fertile source of information" for adversaries, according to Army Regulation 530-1 on Operations Security, updated 26 September 2014.

EBOLA OUTBREAK: SELECT LEGAL ISSUES, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

The Ebola Outbreak: Select Legal Issues, CRS Legal Sidebar, October 6, 2014:

Ebola: Basics About the Disease, October 3, 2014:

As Midterm Election Approaches, State Election Laws Challenged, CRS Legal Sidebar, October 7, 2014:

Child Welfare: Profiles of Current and Former Older Foster Youth Based on the National Youth in Transition Database (NYTD), October 6, 2014:

Agriculture in the WTO Bali Ministerial Agreement, October 6, 2014:

Ozone Air Quality Standards: EPA's 2015 Revision, October 3, 2014:

Beverage Industry Pledges to Reduce Americans' Drink Calories, CRS Insights, October 6, 2014:

Palestinian Authority: U.S. Payments to Creditors as Alternative to Direct Budgetary Assistance?, CRS Insights, October 6, 2014:

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

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