SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2019, Issue No. 28
July 3, 2019

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

CIA CAN SELECTIVELY DISCLOSE INFORMATION, COURT AFFIRMS

The Central Intelligence Agency can disclose restricted information to reporters without waiving its right to withhold the same information from other members of the public, a federal appeals court ruled last week.

The appeals court affirmed a 2018 decision in a Freedom of Information Act lawsuit brought by reporter Adam Johnson against the CIA. He had requested copies of certain emails sent by CIA in 2012 to reporters Scott Shane of the New York Times, Siobhan Gorman of the Wall Street Journal, and David Ignatius of the Washington Post. Nine of the emails were released in highly redacted form. (Secrecy News, 04/30/2018)

"Here, the information Johnson seeks is contained in private correspondence sent directly to three reporters . . . and these emails are not generally accessible by the public," the appeals court said in the June 28 ruling. "In these circumstances and without more, we agree with the District Court that Johnson has not produced sufficient evidence that the information he seeks was 'made public' by the CIA." And since they were not "made public," they can remain exempt from further disclosure, the appeals court held.

This conclusion is not intuitively obvious, and critics said it destabilizes the definition of "public information."

It amounts to saying that even though "journalists are members of the public, . . . giving them information is not tantamount to making information 'public'," said Johnson's attorney Daniel R. Novack in a blog post last year. "Essentially the CIA Press Office can deputize any member of the public, at its unfettered discretion, to receive highly sensitive materials -- so long as they ask them not to share it."

The claim that the information that was provided to the three reporters was not shared with "a large enough number of people for it to be 'truly public' . . . cannot be reconciled with the prior disclosure doctrine" that has prevailed up to now, according to an amicus brief filed by several public interest organizations.

The CIA public affairs office yesterday declined to respond directly to the latest ruling but said the Agency was following its mission.

"While we can't speak to any particular circumstance, CIA's highest priority is protecting sources and methods. That obligation informs every decision we make," said CIA spokesperson Sara Lichterman.

Scott Shane of the New York Times said that "I remember being surprised that what I wrote [in the email correspondence] was released and what CIA wrote was redacted."

"In that particular email exchange, I think I was seeking CIA's response to complaints from health NGOs about the agency's use of Dr. Afridi in Pakistan in the hunt for Bin Laden. They had accused the agency of endangering all workers in legitimate vaccination programs," Shane said via email.

Would he have agreed to keep the CIA information secret?

"I can certainly say that I never signed any NDA [non-disclosure agreement]," he said. "I seriously doubt I would have promised not to share information the agency sent me, but it's hard to be certain. They might have said, 'We'll give you an off-the-record explanation if you agree not to share it beyond your editors'."

Although the practice of sharing classified information with reporters is hard to square with existing law and policy, it sometimes happens anyway, especially when the reporter already has classified information in his or her possession, Shane said.

"In general, when journalists approach an agency with classified information already in hand, it can be useful to the journalists when agency officials have the flexibility to be able to share some classified details to help explain an event or program," he said. "In my experience they usually do that orally and not by email."

Does CIA routinely feed classified information to selected reporters? Apparently not.

"If only that were true," quipped Shane Harris of the Washington Post in an April 2019 Lawfare podcast on reporting about the CIA (at around 21:15). "It's a misconception."

Anyway, "just because something is classified does not mean it's true," said Mary Louise Kelly of National Public Radio on the same Lawfare podcast (20:00). "In fact, often the opposite" is the case.

PCLOB RELEASES ITS OVERSIGHT AGENDA

The Privacy and Civil Liberties Oversight Board is conducting oversight in nearly a dozen areas broadly related to intelligence and counterterrorism. The PCLOB oversight agenda was detailed in a statement this week.

"This document describes the Board's active oversight projects and other engagements. . . .The shorthand descriptions below are intended to provide public transparency, consistent with the protection of classified information and other applicable law," the July 1 statement said.

* * *

Meanwhile, the Department of Defense issued a new directive outlining how it will obtain and make use of public information. See DoD Access to and Use of Publicly Available Information (PAI), DoD Directive 3115.18, June 11, 2019.

The directive said that DoD will collect public information in an open and transparent way -- except when it is authorized to employ deception.

As a general matter, "DoD personnel will not use false assertions of identity or organizational affiliation for official purposes to access, acquire, or use PAI without complying with cover policies . . and other DoD guidance and issuances on the use of cover," the directive said.

"Cover" is defined as "The concealment of true identity or organizational affiliation with assertions of false information as part of, or in support of, official duties to carry out authorized activities or lawful operations."

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

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