Declassify? -- NEVER!

The White House blog is accepting comments and recommendations with respect to the Executive branch’s declassification policy through July 1st. One thing the Obama administration can fix is the worst abuse of the declassification prerogative to date – specifically the Director of National Intelligence’s (DNI) and the Central Intelligence Agency’s (CIA) position that per se, the President’s Daily Brief (PDB) is classified in perpetuity.

The PDB, according to the CIA, “is a unique intelligence document prepared specifically for the President of the United States and his most senior advisors to provide them with the most important current intelligence on critical issues relating to national defense and foreign policy.” PDBs have significant historical value in that they provide insight into our national leaders’ understanding of world situations and thus are critical to understanding and assessing our country’s actions during a given historical period. They also have significant policy implications in that PDBs provide additional insight into the quality and effectiveness of intelligence support provided to the President and his most senior advisors. That the DNI, the official most directly responsible for the quality of that support, can also assert that PDBs should never be released constitutes a clear conflict of interest with respect to the ability of the American people to hold their Government leaders accountable, even if that accountability must be through history. Moreover, as evidenced by the infamous PDB from August 6, 2001, entitled Bin Laden Determined to Strike in US, (the release of which was strongly resisted by the Bush White House) PDBs are a prime source for answering the proverbial question, “what did the President know and when did he know it?”

In 2003, the Interagency Security Classification Appeals Panel (ISCAP) voted 5-1 that a portion of a now 40-year-old PDB be declassified. Voting in favor were representatives of the Departments of Defense, State and Justice, the National Security Council staff, and the National Archives and Records Administration. Voting against was the representative of the Central Intelligence Agency. Previously, such action by the ISCAP would have resulted in the declassification of the information unless one of the Panel members appealed to the President and the President personally overruled the Panel. However, with the amendment of the governing Executive Order several months earlier, the then Director of Central Intelligence (DCI) was authorized to block the declassification by the ISCAP of certain information owned or controlled by the DCI. In this instance, the DCI blocked the declassification of the portion of the PDB that the ISCAP voted to declassify, necessitating another member of the ISCAP to appeal to the President, through his National Security Advisor, the DCI’s “veto.” According to the Information Security Oversight Office’s most recent Report to the President, the appeal to the President remained “pending” for the final five years of the Bush administration and is apparently still pending in the Obama administration.

Of particular note, the portion of the PDB to be declassified was a single paragraph in length (70 words), included no information relating to intelligence sources or methods, and solely contained information that every Third-grader knows today. Nonetheless, the then DCI and now DNI considers this information to still be classified at the TOP SECRET level simply because it appeared in a PDB 40 years ago.

The above is a prime example of declassification not working. The DCI’s and DNI’s argument is literally “form over substance.” Admittedly, sensitive intelligence information, such as that which could be used to identify a human source, remains highly damaging even many years later and should continue to be afforded the protection of the classification system. However, to endorse the use of the classification system to continue to protect these 70 words, or any other portion of any PDB (or any other official document) that clearly can no longer cause damage to national security, undermines the very integrity of the classification system and thus places all properly classified information at needless increased risk.

Clearly, one of the “fixes” the Obama administration should make to the declassification system is to prohibit the application of any “per se” rule to the classification or the continued classification of any collection or series of records (to include agency or intelligence community budgetary records). Instead, any new classification framework should instead insist that decisions to continue the classification of any information, especially information many decades old, be made on the substance of the information to be released and the real damage to national security that could occur should the information be disclosed.

Equally important, if he has not already done so, President Obama should immediately override the DNI’s continued blocking of the ISCAP action in this case and insist that the PDB portion in question be immediately declassified, making it clear that decisions to withhold this or any other PDB will be made on substantive grounds only and that all PDBs are subject to eventual declassification.

Forever is a long time, even for the classification of information. Either that or we may have to start classifying Third-grade textbooks.

How Do You Think the Government Should Protect Its Secrets?

As recently reported in Secrecy News and the Washington Post, the White House is seeking the public’s input into how the Government protects its secrets. This initiative represents an excellent opportunity to convert what is essentially an industrial age secrecy policy which has remained fundamentally unchanged since the era of the Manhattan Project into an enabling national security tool more suited for the information age.

Considering the inevitability of bureaucratic inertia as well as the very real challenges of reprogramming the multitude of national security information systems, it is not unreasonable to expect that any far-reaching recommendations this review produces will take a couple of years or more to fully implement. This means that since September 11, 2001, almost a decade or more will have passed before recommendations of the “9/11 Commission” and others have the ability to ensure that never again will information hording practices on the part of our national security agencies have such tragic consequences for Americans. As reported by The National Commission on Terrorist Attacks Upon the United States, "current security requirements nurture overclassification."

In an earlier directive on this subject, the President proposed the creation of a National Declassification Center. While such an innovation will ensure quicker, more efficient and accurate declassification of 25-year-old or older secrets, many of which should never have been classified in the first place, such a relatively modest step would represent implementation of only one of the many recommendations of the “Moynihan Secrecy Commission” that have never been implemented since initially proposed in 1995. In order to make “his administration the most open and transparent in history” as President Obama has repeatedly vowed, the classification policy review task force he has created must provide the President with bold recommendations that fundamentally change how information comes to be classified in the first place.

As a minimum, more substantive and concrete standards and prohibitions regarding classification must be promulgated resulting in the measurable presumption that less information will be classified, at lower levels and for shorter durations – outcomes which are the exception today based upon current policy. The process must also be reformed to provide for increased accountability, both individual and organizational, with respect to the use of classification. As a minimum, in place of the current system of bureaucratic anonymity, each classification decision should be traceable to the specific individual responsible for the decision.

In addition, automatic declassification of information must truly be “automatic” and not require the multiple, serial reviews currently conducted by varied government agencies. Furthermore, the term “intelligence sources and methods” must be precisely defined rather than allowing the perpetuation of a vague catch-all phrase which has been used more as a bureaucratic weapon to avoid external oversight than as a meaningful discriminator for truly sensitive national security information.

In addition, our defense, intelligence, foreign-policy and homeland security apparatus must no longer be needlessly hampered by such antiquated concepts such as the “need-to-know” principle and the “third-agency rule” which sets “thou shall not share” classified information with otherwise authorized recipients, even other government agencies, as the official default policy position. As such, current policy officially sanctions the continued hording of information by individual agencies. Such practices are the antithesis of an agile, interconnected, networked environment essential to protecting our nation against today’s ever evolving security threats.

Finally, the task force must set out for the President recommendations for a consequential and timely system which allows for responsible external review of classification decisions, especially in response to concerns expressed by the Congress and the judiciary. However, the two other co-equal branches of government must not remain idle while waiting for executive action in this area. Both Congress and the courts can play a real role in combating abuses in government secrecy and must replace ready deference to assertions by the Executive with robust scrutiny of claims to secrecy based on national security considerations. Furthermore, unless Congress, as recommended by the Moynihan Commission, was to enact a statute governing classification, any future administration can readily undo accomplishments achieved with respect to increased government openness. While setting forth the particulars of what he recently described as “America’s descent into torture,” Senator Sheldon Whitehouse (D-RI) stated: "At the heart of all these falsehoods lies a particular and specific problem: The 'declassifiers' in the U.S. Government are all in the Executive branch. No Senator can declassify, and the procedure for the Senate as an institution to declassify something is so cumbersome that it has never been used."

Dating to the times of FDR, the efforts of any administration to revise national security classification policy has mostly resulted in tinkering around the edges preserving the fundamentals of what is essentially a paper-based process. With his current initiative, President Obama has the opportunity to continue that tradition or to forge genuine and long-lasting change more suitable to the world of electronic information and which enhances national security while at the same time providing truly unprecedented transparency and openness.

The current framework for classification can be found here. During the next several days, I will be elaborating on recommendations that I will be posting to the White House's blog. I encourage all to weigh-in on this opportunity. To paraphrase Teddy Roosevelt, it is not the critic who counts but the individuals who are willing to get “in the arena.” What remains to be seen, however, is whether this opportunity is, in fact, the arena or a sideshow.

Witness for the Defense

Following my retirement last year from a 34-year Federal career, all of which was spent immersed in the arcane world of government secrecy, to include responsibility for the government-wide oversight of the classification of national security information, the last thing I thought I would find myself doing was opposing the Federal government’s efforts in an Espionage Act case; especially one involving two men I never met and who worked for an organization that had some views with which I did not necessarily agree. Yet, after being asked by the defense to review the Government’s evidence in what had become known as “the AIPAC case,” that is exactly where I found myself, soon followed by veiled threats from the prosecution that if I testified for the defense, I too could face potential prosecution and up to a year in jail. Fortunately, a subsequent order from the presiding judge negated that possibility.

The Government’s premise in this case was that non-Government officials who do not possess security clearances, such as lobbyists, reporters, and think-tank specialists, can be criminally culpable for further disseminating information shared with them by Government officials, even if they solely received the information by word-of-mouth and were not necessarily informed in the first place that it was supposedly classified . Never before had the Justice Department brought such a criminal case and to me, the actions of Keith Weissman and Steven Rosen clearly should never have served as the basis for the Government’s attempt to initially establish such a far-reaching precedent.

Supporters of the Government’s case have stated that organizations such as AIPAC should not be able to determine what is classified and what is not. I agree – that is the role of the government. However, I became involved in this case because it was clear to me that the government had failed to adequately determine exactly what was and was not properly classified information. All too often, in dealing with the public or the two co-equals branches of government, Executive branch officials simply assert classification. Equally disturbing, the judiciary and the Congress often reflexively defer to such claims. Fortunately, in the AIPAC case, Judge T. S. Ellis 3^rd refused to allow the Government to make such an assertion. After reviewing the evidence in detail, I became convinced that the Government would not be able to demonstrate that the specific information the defendants were accused of disclosing was indeed classified in accordance with the process set forth by the President or that, in other instances, it would be easy for the defense to demonstrate that the information was already widely known and thus part of the vast morass of official information subject to the frequent abuse of over-classification. To be effective, the national security tool of classification must be used with precision and in accordance with the standards and limitations set forth by the President.

The Government’s decision to dismiss the charges in this case emphasizes the importance of the recent decision of the 9th Circuit Court of Appeals Panel in the case Mohamed v. Jeppesen Dataplan, Inc. Once again, in rejecting an overly broad State Secrets claim, a co-equal branch of government rejected a simple assertion by the Executive that disclosure of information would harm the national security. Both Congress and the courts can play a real role in combating abuses in government secrecy and must replace ready deference to assertions by the Executive with robust scrutiny of claims to secrecy based on national security considerations.

Finally, the public would have been much better served if the Government had used the resources committed to prosecuting the AIPAC case and instead devoted them to training those Government officials who duties require that they interact with non-government entities such as the media, think-tanks, lobbyists as well as foreign representatives in order to educate them in how, in the performance of their official duties, it can often be possible to disclose information obtained through intelligence sources and methods without compromising the actual sources and methods. When assigned to the Pentagon, I attempted to institute such a program and was ridiculed by some for “wanting to facilitate leaks.” Such narrow thinking fails to recognize that classified intelligence is collected, in large part, to inform policymakers and you cannot expect officials to erase such information from their minds when dealing with non-cleared individuals, especially when it is not the information itself that is classified but rather the means by which it was obtained. Instead, a little training can go a long way to giving officials such as State Department and other administration representatives the knowledge necessary for them to fulfill their duties to disseminate and gather, from both official and non-official sources, the information necessary for informed policy decisions without inadvertently compromising sensitive intelligence sources and methods.

CJR Interview

Recently I had the opportunity to be interviewed by Clint Hendler of the Columbia Journalism Review. I spoke about the history of classification, how information becomes declassified, and the problems of over-classification.

About the Author

Bill Leonard retired in 2008 after 34 years of Federal service. In his most recent position as the Director of the Information Security Oversight Office, he was responsible for policy oversight of the Executive branch-wide national security information classification system. Before this appointment, Bill served in the Department of Defense to include as the Deputy Assistant Secretary of Defense (Security and Information Operations) during both the Clinton and Bush administrations. He can be reached at secgovinfo@gmail.com.