The Department of Defense is not particularly concerned with "openness" in
the abstract, but it is strongly motivated to conserve resources and reduce
discretionary expenditures. That imperative dictates the discriminating
use of national security secrecy -- at least in theory -- because of the
costs incurred by classification.
"Precise classification guidance is prerequisite to effective and
efficient information security and assures that security resources are
expended to protect only that which truly warrants protection in the
interests of national security," according to a newly reissued Department
of Defense manual that provides "Instructions for Developing Security
Classification Guides" (DoD Manual 5200.45, April 2, 2013).
http://www.fas.org/sgp/othergov/dod/m5200_45.pdf
The Manual presents a framework for classifying information, beginning
with a series of questions for determining whether information is eligible
for classification in the first place. ("Can the unauthorized disclosure
of the information reasonably be expected to cause identifiable or
describable damage to the national security? If the answer is no, the
information cannot be classified.")
Then it details the considerations that may arise in the classification of
information concerning military hardware, military operations, intelligence
and foreign relations. Exactly which aspects of a hardware system provide
the U.S. with a technological advantage? Precisely which operational
information requires protection in order for the operation to succeed?
The Manual discourages broad, sweeping classification of information.
Through an extended questionnaire for classifiers, it seeks "to
systematically bound and refine the scope of the analysis needed to
determine which items warrant protection through security classification."
As detailed and helpful as this guidance is, it cannot decisively resolve
all classification questions in advance. "The outcomes specified in the
flow chart are not absolute; judgment must be applied in all cases," the
Manual says.
Some decisions regarding what to classify are easy. Information about "a
foreign official speaking in a highly critical manner of his own
government's policy" or "suggesting how pressure might effectively be
brought to bear on another part of his own government" would typically be
classified. Likewise, the fact of ongoing intelligence cooperation between
the United States and a country "with which the United States is not allied
should always be classified." Also, "intelligence identifying a sensitive
source or method should always be classified."
On the other hand, the Manual says, classification can be dispensed with
in certain areas. "Intelligence that reveals the identity of a
conventional source or method [i.e., one that is not "sensitive"] normally
does not require classification."
And "in general, [intelligence budget] resource information should not be
classified unless it reveals some aspect of the intelligence mission, and
its revelation would jeopardize the effectiveness of a particular function.
An example of classifiable resource information is the intelligence
contingency fund."
At this point, the realization will dawn on some readers that this Manual,
which was originally issued in 1999, does not accurately describe -- or
effectively regulate -- DoD classification policy.
It is simply not the case that "in general, resource information [is] not
classified unless it reveals some aspect of the intelligence mission." To
the contrary, the Department's default position is that intelligence
resource information is classified. That is why the individual budget
total of each DoD intelligence agency -- and not simply intelligence
contingency funds -- is not disclosed. And beyond the total budget for the
Military Intelligence Program (MIP), "no other MIP budget figures... will
be released," DoD said last October 30, "as they remain classified for
national security reasons."
Nor does the Pentagon clearly distinguish between sensitive intelligence
sources and methods, which are classified, and "conventional" intelligence
sources and methods, which are not. Doing so sounds like a good idea, but
it is hard to detect any sign of it in Pentagon practice.
The Manual notes that all classification guidance should be reviewed at
least every five years by the original classification authority that issued
it. But it fails to mention that all guidance is also subject to a broader
periodic assessment known as the Fundamental Classification Guidance
Review. It is through such a broader review that changes in classification
policy are more likely to come about.
PROSECUTORS REBUT DEFENDANT'S CHALLENGE TO ESPIONAGE ACT STATUTE
Last month, attorneys for Navy linguist James Hitselberger, who was
charged under the Espionage Act with unlawful retention of classified
documents, filed a motion arguing that the Espionage Act is
unconstitutionally vague and unenforceable. Last week, prosecutors replied
and said that's not so.
"Prosecuting Mr. Hitselberger under this statute violates the fair notice
requirements of the Due Process clause because multiple terms contained in
[the statute] are so vague that they fail to provide him with notice of
what conduct is criminal and what conduct is not," Hitselberger's public
defenders wrote in their March 1 motion.
http://www.fas.org/sgp/jud/hitsel/030113-vague.pdf
Last Friday, prosecutors rebutted the defense motion, which they said was
without merit. "Every court that has considered similar challenges to [the
Espionage Act statutes] has rejected them and found the provisions to pass
constitutional muster," they wrote.
http://www.fas.org/sgp/jud/hitsel/040513-govopp.pdf
The prosecutors cited rulings from past and present prosecutions involving
charges under the espionage statutes to bolster their argument --
including those of State Department contractor Stephen Kim, former NSA
official Thomas Drake, former CIA officer John Kiriakou, and former naval
intelligence analyst Samuel L. Morison. Like Hitselberger, none of those
individuals was accused or suspected of espionage on behalf of a foreign
power, but rather of unlawfully retaining or disclosing national defense
information.
"Recently, the defendant in Drake made the same faulty argument as
Hitselberger makes here," prosecutors wrote. "The district court rejected
the defendant's claim that the term willfulness is unconstitutionally
vague."
"Although Hitselberger admittedly was not a career intelligence
professional, he has more in common with defendants such as Morison,
Kiriakou, and Kim than he lets on," the prosecutors asserted. It was not
meant as a compliment.
Prosecutors filed additional responses to several other pre-trial defense
motions to suppress evidence, to require a bill of particulars, to
eliminate "multiplicious" charges, and to find sections of the Classified
Information Procedures Act unconstitutional.
http://www.fas.org/sgp/jud/hitsel/index.html
NORTH KOREAN NUKES, DOMESTIC DRONES, AND MORE FROM CRS
An updated summary of open source reporting on the North Korean nuclear
weapons program was produced this week by the Congressional Research
Service. See North Korea's Nuclear Weapons: Technical Issues, April 3,
2013:
http://www.fas.org/sgp/crs/nuke/RL34256.pdf
Other new or newly updated CRS reports include the following.
Integration of Drones into Domestic Airspace: Selected Legal Issues, April
4, 2013:
http://www.fas.org/sgp/crs/natsec/R42940.pdf
Drones in Domestic Surveillance Operations: Fourth Amendment Implications
and Legislative Responses, April 3, 2013:
http://www.fas.org/sgp/crs/natsec/R42701.pdf
Super PACs in Federal Elections: Overview and Issues for Congress, April
4, 2013:
http://www.fas.org/sgp/crs/misc/R42042.pdf
"Amazon" Laws and Taxation of Internet Sales: Constitutional Analysis,
April 3, 2013:
http://www.fas.org/sgp/crs/misc/R42629.pdf
FutureGen: A Brief History and Issues for Congress, April 3, 2013:
http://www.fas.org/sgp/crs/misc/R43028.pdf
Congressional Redistricting and the Voting Rights Act: A Legal Overview,
April 2, 2013:
http://www.fas.org/sgp/crs/misc/R42482.pdf
The Temporary Assistance for Needy Families (TANF) Block Grant: A Primer
on TANF Financing and Federal Requirements, April 2, 2013:
http://www.fas.org/sgp/crs/misc/RL32748.pdf
The Recess Appointment Power After Noel Canning v. NLRB: Constitutional
Implications, March 27, 2013:
http://www.fas.org/sgp/crs/misc/R43030.pdf
Overview of Health Care Changes in the FY2014 Budget Proposal Offered by
House Budget Committee Chairman Ryan, March 22, 2013:
http://www.fas.org/sgp/crs/misc/R43017.pdf
Cuba: U.S. Policy and Issues for the 113th Congress, March 29, 2013:
http://www.fas.org/sgp/crs/row/R43024.pdf
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
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