Classification -- Or, "If I had a Hammer"

A hammer is a great tool, especially if you want to drive a nail. It's a lousy tool if you want to open a bottle of wine.

So it is with the classification system for national security information. It is a tremendous tool at the disposal of our government and can be quite effective when used to deprive adversaries knowledge of information that can harm our nation, especially if those adversaries have the capability and intent to exploit that information. It can also be an overly blunt tool subject to abuse, especially when it comes to the identity of covert or undercover personnel employed by our intelligence services.

Today's Washington Post has an interesting article which highlights the potential abuse of the classification tool. Reportedly, the Department of Justice (DoJ) has recently questioned military defense attorneys at Guantanamo Bay about whether photographs of CIA personnel, including covert officers, were unlawfully provided to detainees.

Based upon the WaPost report, it would appear that DoJ is not investigating violations of the Intelligence Identities Protection Act of 1982 (Pub.L. 97-200, 50 U.S.C. sec. 421-426). Rather, the article specifically states that "(i)nvestigators are looking into allegations that laws protecting classified information were breached when three lawyers showed their clients the photographs...". It is a significant distinction notwithstanding the ham-handed attempts of Victoria Toensing to conflate the two following the deliberate outing of Valerie Plame's status as an undercover CIA officer by the most senior officials of the Bush administration.

The Intelligence Identities Protection Act was passed, in part, in reaction to the assassination of Richard Welch, the CIA Station Chief in Athens in 1975. As Toensing points out in her article, the statute is intentionally limited with respect to the circumstances as to when the disclosure of a covert intelligence officer's identity would constitute a violation of law. However, what Toensing attempted to obfuscate was that even if the statute is not violated, the identity of intelligence officers who operate undercover is usually classified information, and for good reason. Protection of the intelligence officer's safety can be secondary -- the principal reason to classify the officer's identity is to protect the individuals, especially foreign nationals, with whom the officer comes into contact. If the intelligence officer's true identity and affiliation was readily known, then it would facilitate foreign intelligence services' investigations of individuals who come into contact with the officer, thus either placing recruited assets at increased risk, or dissuading potential assets from being recruited in the first place.

With the above as background, it is useful to look at the facts as reported in the WaPost article and assess exactly what the government is trying to do with the critical national security tool of classification. First of all, the classified nature of an intelligence officer's cover is not sacrosanct. For example, earlier this year Andrew Warren was identified as the CIA Station Chief in Algeria when he was charged with drugging and sexually assaulting two women.

The ready disclosure by the government of Warren's identity brings up an important provision of Executive Order 12958, as amended, which governs the classification of national security information and which is thus instrumental in investigating any alleged illegal disclosure of classified information. Section 1.7(a) of the order states that "In no case shall information be classified in order to: (1) conceal violations of law...". I have confronted many in government who take the position that this provision has next to no meaning. They argue that this section only prohibits the classification of information with the intent of concealing a violation of law. As such, they argue that classification could legitimately have the "unintended consequence" of concealing a violation of law. Although I do not agree with such a narrow interpretation, it would prove useful to examine the government's intent in the use of classification in the case of defense attorneys reportedly showing detainees photos of CIA officers.

In Warren's case, the government readily determined that the grave crimes which he is accused of committing no longer warranted standing behind the cloak of secrecy in order to protect his identity, although its disclosure would surely harm national security for the reasons outlined above. However, in the case of detainee torture, as described by President Obama himself, with torture inherently constituting a crime, the government apparently is not only willing to stand behind the cloak of secrecy to protect the identity of the CIA officers, but is also willing to use classification as an instrument of intimidation. As set forth in the WaPost article, the National Association of Criminal Defense Lawyers (NACDL) questioned the timing of the reported DoJ investigation.

It is "customary in our experience that any kind of investigation like these are conducted after legal proceedings are finished in the case so as not to interfere with the defense function, not to interfere with the rights of defendants, not to give the appearance that the government is looking to chill the defense function," said Joshua L. Dratel, counsel for the John Adams Project and a former board member of the NACDL, who spoke on behalf of the group.

He added: "The lawyers have a duty to find out what happened to their clients, and to the extent that the government and certain agencies are resistant to that to protect themselves and to insulate themselves from accountability, there is a tension there, and to the extent that this investigation is part of that tension, it's most unfortunate. But the lawyers will not shirk their duty."

In order to further examine intent on the part of the government in its application of classification in this case, it is useful to examine how the government itself protected the identity of the CIA officers.

First of all, there is no evidence that the government took steps to conceal the identity of the CIA officers from the detainees themselves -- otherwise showing photos to the detainees would be pointless. In view of the fact that no detainee is authorized access to classified information, the government apparently violated its own provisions by failing to conceal the intelligence officers identity from the detainees. In view of the many detainees released to date, to include the 28 of 33 detainee cases heard so far in which a federal judge found insufficient evidence to support keeping them in prison, it would be interesting to learn if the government obtained non-disclosure agreements from the detainees as part of their release.

Second, the defense attorneys were reportedly able to come into possession of the photos simply because of poor trade craft on the part of intelligence officials. If individuals operate undercover, they and their agency must take steps to protect that cover. Yet, as reported in the article:

A wide variety of groups, including European investigators, human rights groups and news organizations, have compiled lists of people thought to have been involved in the CIA's program, including CIA station chiefs, agency interrogators and medical personnel who accompanied detainees on planes as they were moved from one secret location to another.

"It's a normal part of human rights research projects, and certainly in defense work, to compile lists of individuals who interacted with clients," Romero said.

Tracking international CIA-chartered flights, researchers have identified hotels in Europe where CIA personnel or contractors stayed. In some cases, through hotel phone records, they have been able to identify agency employees who jeopardized their cover by dialing numbers in the United States. Working from these lists, some of which include up to 45 names, researchers photographed agency workers and obtained other photos from public records, the sources said.

Since the government itself failed to take adequate, or in some cases even minimal, steps to protect the identity of undercover CIA officers, for the government to now reportedly investigate defense attorneys possession of photos apparently obtained through legitimate research clearly indicates the intent to intimidate defense lawyers' inquiries into alleged detainee abuse, thus the intent to conceal violations of law. As such, there is reasonable basis to believe that in this instance, due to the government's own failure to take adequate steps to protect the intelligence officers' identity, the continued classification of their identities is a violation and abuse of the President's Executive Order governing classification.

Whether it is the Bush administration's willful and purposeful disclosure of a CIA undercover agent's identity for political gain, or the Obama administration's reported use of a criminal investigation into the disclosure of undercover identities the government failed to protect itself (and thus further the political objective of avoiding criminal investigations into detainee treatment), both incidents constitute a significant abuse of the classification system and further weakens its effectiveness as a critical national security tool.