In July 2011, J. William Leonard, a former director of the Information
Security Oversight Office (ISOO), took the extraordinary step of filing a
formal complaint with the Office he once led charging that a document used
to indict former NSA official Thomas Drake under the Espionage Act had been
wrongly classified in violation of the executive order on classification.
("Complaint Seeks Punishment for Classification of Documents" by Scott
Shane, New York Times, August 2, 2011; "Ex-federal official calls U.S.
classification system 'dysfunctional'" by Ellen Nakashima, Washington Post,
July 21, 2012)
http://www.fas.org/sgp/news/2012/07/jwl-complaint.pdf
Last December, in a newly disclosed response, John P. Fitzpatrick, the
current ISOO director, concluded that Mr. Leonard's complaint did not
warrant the sanctions that Mr. Leonard had urged. Neither the original
classification of the NSA document, titled "What a Wonderful Success," nor
its continued classification "rise to the level of willful acts in
violation of the Order," Mr. Fitzpatrick wrote in his December 26, 2012
response.
http://www.fas.org/sgp/jud/drake/isoo-jwl.pdf
With that, the matter was officially closed. But the divergent views
underlying the complaint remain unresolved and continue to fester.
"I have devoted over 34 years to Federal service in the national security
arena, to include the last 5 years of my service being responsible for
Executive branch-wide oversight of the classification system," Mr. Leonard
wrote in his 2011 complaint. "During that time I have seen many equally
egregious examples of the inappropriate assignment of classification
controls to information that does not meet the standards for
classification; however, I have never seen a more willful example."
But Mr. Fitzpatrick said that having reviewed the original classification
of the document as well as its continued classification, "I find no
violation in either case." In fact, he noted, "NSA discontinued the
classification of the document in question" during the course of the Drake
case.
"The content and processing of the document fall within the standards and
authority for classification under the Order and NSA regulations," Mr.
Fitzpatrick wrote. That doesn't make them immune to criticism, he wrote,
but it means that their classification does not "rise to the level of
willful acts in violation of the Order."
Mr. Leonard was not persuaded. In an email to Mr. Fitzpatrick after the
complaint was dismissed, he said he was not overly concerned by the
original classification of the document, "which although improper was, by
all appearances, a reflexive rather than willful act." Nor, of course, was
he troubled by the eventual declassification of the document.
But "What I did and continue to take issue with is that in between those
events, senior officials of both the NSA and DoJ made a number of
deliberate decisions to use the supposed classified nature of that document
as the basis for a criminal investigation of Thomas Drake as well as the
basis for a subsequent felony indictment and criminal prosecution."
Not only that, Mr. Leonard said, but DoJ and NSA officials justified the
classification after the fact by claiming the document "reveals... a
specific level of effort..." concerning a classified activity, and that
that assertion was "factually incorrect."
http://www.fas.org/sgp/jud/drake/jwl-resp.html
Mr. Fitzpatrick said he had no basis to comment on the Drake case per se.
"That is not my purview."
"I do think it important to note that ISOO's authority to handle the
complaint pertains to classification actions authorized under the Order.
It does not extend to investigative or prosecutorial decisions made under
other authorities," Mr. Fitzpatrick told Secrecy News yesterday.
But he added that "To conclude that the single document cited in the
complaint was the primary basis for an investigation and prosecution is, in
my view, too narrow a reading of the facts of the case. When building such
cases, agencies make decisions to reduce the risk of exposing national
security information. This influences their selection of which documents
and evidence to place in the public record. These are matters of
investigative and prosecutorial discretion whose results are determined in
court. Neither those results, nor opinions about the relative merits of
mounting a case, recast the original classification action as
sanction-worthy."
Mr. Leonard highlighted the striking fact that no one has ever been
sanctioned for abuse of classification authority, and he told Mr.
Fitzpatrick that the present case was a missed opportunity.
"Accountability is crucial to any system of controls and the fact that
your determination in this case preserves an unbroken record in which no
government official has ever been held accountable for abusing the
classification system does not bode well for the prospect of real reform of
the system," Mr. Leonard wrote.
Why indeed has there never been any accountability for classification
abuse? Mr. Fitzpatrick said "This goes to the cultural aspects of national
security information control, where the premium is placed on protection and
avoidance of inadvertent disclosure. The other side of that coin -- I
would call it simply overclassification -- is less generally policed
against. Its ill effects are felt in the cumbersome processes associated
with declassification review and the persistent backlogs and slow processes
that characterize the system."
Mr. Leonard went further in a thoughtful but scathing presentation at a
panel sponsored by the Brennan Center for Justice on March 14, in which he
first disclosed the ISOO response to his complaint. He said, "I've come to
the conclusion that the executive branch is both incapable and unwilling to
achieve real reform in this area."
Mr. Fitzpatrick said that, for his part, he retained a degree of hope that
meaningful changes to secrecy policy could still be achieved.
"There are some essential elements needed to bring about reform, and they
hard to come by," he said via email. "The first and most important is an
unambiguous call for change from senior leadership. That mandate must
promise commitment and describe specific outcomes the change is meant to
bring about. Examples would include: reduce classification; expedite
declassification; improve access to declassified historical Formerly
Restricted Data. Given that inter-agency cooperation is needed to address
these issues, nothing short of a White House-directed effort is likely to
succeed in making this kind of reform happen. This belief underlies the
[Public Interest Declassification Board's] primary recommendation from
their recent report [namely, to establish a White House-led steering group
on secrecy reform]."
The last impartial word about the Thomas Drake prosecution (though not
specifically on classification policy) may be that of the presiding judge,
Judge Richard D. Bennett. At the July 2011 sentencing hearing that ended
the case, he called the government's handling of the matter
"unconscionable" and abusive.
Thomas Drake himself reflected on his experience in a speech to the
National Press Club on March 15:
http://www.c-spanvideo.org/program/311537-1
SECRET SESSIONS OF CONGRESS, AND MORE FROM CRS
The latest updates from the Congressional Research Service include these
reports.
Secret Sessions of the House and Senate: Authority, Confidentiality, and
Frequency, March 15, 2013:
http://www.fas.org/sgp/crs/secrecy/R42106.pdf
Europe's Energy Security: Options and Challenges to Natural Gas Supply
Diversification, March 15, 2013:
http://www.fas.org/sgp/crs/row/R42405.pdf
The Amending Process in the Senate, March 15, 2013:
http://www.fas.org/sgp/crs/misc/98-853.pdf
Commonly Used Motions and Requests in the House of Representatives, March
15, 2013:
http://www.fas.org/sgp/crs/misc/RL32207.pdf
Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and
Issues for Congress, March 15, 2013:
http://www.fas.org/sgp/crs/weapons/R40248.pdf
Navy Irregular Warfare and Counterterrorism Operations: Background and
Issues for Congress, March 15, 2013:
http://www.fas.org/sgp/crs/natsec/RS22373.pdf
Coast Guard Cutter Procurement: Background and Issues for Congress, March
15, 2013:
http://www.fas.org/sgp/crs/weapons/R42567.pdf
Coast Guard Polar Icebreaker Modernization: Background, Issues, and
Options for Congress, March 15, 2013:
http://www.fas.org/sgp/crs/weapons/RL34391.pdf
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Support the FAS Project on Government Secrecy with a donation:
http://www.fas.org/member/donate_today.html
_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood
The official Website of Bernd Pulch. Since 2009 providing critical insights and political Satire on lawfare, media control, and political reality. Avoid fake sites.
Bernd Pulch 