[Intelforum] Secrecy News -- 07/29/09

Wed Jul 29 13:10:06 EDT 2009

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 65
July 29, 2009

Secrecy News Blog:  http://www.fas.org/blog/secrecy/

**      DECLASSIFIED PDB INFO IS STILL CLASSIFIED, CIA SAYS
**      MORE THAN 2.4 MILLION HOLD SECURITY CLEARANCES
**      SOME RECENT HEARING VOLUMES ON INTELLIGENCE

DECLASSIFIED PDB INFO IS STILL CLASSIFIED, CIA SAYS

Even though certain information concerning the President's Daily Brief
(PDB) was redacted and declassified for use in the prosecution of former
vice presidential aide Scooter Libby in 2006, that same information is
nonetheless "currently and properly classified," the Central Intelligence
Agency said last week.  The Agency denied release of the material under
the Freedom of Information Act.

       	http://www.fas.org/sgp/news/2009/07/cia072309.pdf

The existence of the declassified PDB material was disclosed in a January
9, 2006 letter from Special Counsel Patrick J. Fitzgerald to Mr. Libby's
attorney.  He wrote:  "In response to our requests, we have received [from
CIA] a very discrete amount of material relating to PDBs and discussions
involving Mr. Libby and/or Vice President Cheney concerning or relating to
the PDBs.  We have provided to Mr. Libby and his counsel (or are in the
process of providing such documents consistent with the process of a
declassification review) copies of any pages in our possession... in the
redacted form in which we received them."

	http://www.fas.org/sgp/news/2006/02/fitz010906.pdf

Since declassified PDBs are comparatively rare, we submitted a Freedom of
Information Act request in February 2006 for a copy of the PDB-related
material that was declassified by CIA for the Libby prosecution.  Last
week, the CIA responded that it had located the requested material but
that "we determined [it] is currently and properly classified and must be
denied in its entirety."

This is a somewhat puzzling development.  It is a pity that the CIA
Inspector General does not investigate violations of the law of
non-contradiction. ("One cannot say of something that it is and that it is
not in the same respect and at the same time." Aristotle, Metaphysics,
1005b12-20.)

With few exceptions, the CIA has consistently opposed public release of
PDBs, reflecting an uncompromising view that PDBs are intrinsically
sensitive, irrespective of their age or contents, and should not be
disclosed.  (The Agency did reluctantly agree to disclose the August 6,
2001 PDB item entitled "Bin Ladin Determined to Strike in US" at the
insistence of the 9/11 Commission.)

When challenged under the Freedom of Information Act, courts have upheld
the CIA's refusal to release specific PDBs.  But a 2007 ruling in the
Ninth Circuit Court of Appeals rejected the CIA view that "PDBs are
categorically exempt from FOIA."  In particular, the court denied the CIA
assertion that the PDB itself is an intelligence method that is protected
by law.  "Although PDBs will typically contain information that reveals
intelligence sources and methods, this does not mean that PDBs themselves
are intelligence methods."

"If we were to accept the CIA's logic," the court said, "then every
written CIA communication -- regardless of content -- would be a protected
'intelligence method' because it is a method that CIA uses in doing its
work.... We decline to adopt such a boundless definition, and instead hold
that whether or not a particular document used by the CIA in its ordinary
course of business is an intelligence method depends upon the content of
the document." (Larry Berman v. Central Intelligence Agency, September 4,
2007):

	http://www.fas.org/sgp/jud/berman090407.pdf

Although the CIA said that the Libby PDB-related material that was
declassified in 2006 is now considered "properly classified," the Agency
did not invoke the FOIA exemption for classified information.  Instead, it
denied release of the material on the basis of FOIA exemption (b)(3) which
includes statutory protection for intelligence methods.

MORE THAN 2.4 MILLION HOLD SECURITY CLEARANCES

Some 2.4 million persons currently hold security clearances for authorized
access to classified information, according to a recent Government
Accountability Office report to the House Intelligence Committee, citing
an estimate from the security clearance Joint Reform Team.  This figure
does not include "some of those with clearances who work in areas of
national intelligence," the GAO noted (at p.1).

	http://www.fas.org/sgp/gao/gao-09-488.pdf 

An accurate tally of the number of cleared government employees and
contractors -- as opposed to a round-number estimate -- is not currently
available anywhere in government.  The House version of the FY2010
intelligence authorization act (sec. 366) would require an annual report
that indicates the number of individuals with security clearances.

In 1993, an estimated 3.2 million persons held security clearances,
according to a 1995 GAO report (cited by the Moynihan Commission, chapter
4).

SOME RECENT HEARING VOLUMES ON INTELLIGENCE

Some noteworthy, newly published congressional hearing volumes on
intelligence policy and related topics include the following.

"Attorney General Guidelines for FBI Criminal Investigations, National
Security Investigations, and the Collection of Foreign Intelligence,"
Senate Intelligence Committee, September 23, 2008:

       http://www.fas.org/irp/congress/2008_hr/ag-guidelines.html

"Nomination of Michael Leiter to be Director, National Counterterrorism
Center," Senate Intelligence Committee, May 6, 2008:

	http://www.fas.org/irp/congress/2008_hr/leiter.pdf

"U.S. Interrogation Policy and Executive Order 13440," Senate Intelligence
Committee, September 25, 2007:

	http://www.fas.org/irp/congress/2007_hr/interrog.pdf

"Fixing the Homeland Security Information Network: Finding the Way Forward
for Better Information Sharing," House Homeland Security Committee, May 10,
2007:

	http://www.fas.org/irp/congress/2007_hr/hsin.pdf

"Budget Request on Unmanned Aerial Vehicles (UAV) and Intelligence,
Surveillance, and Reconnaissance (ISR) Capabilities," House Armed Services
Committee, April 19, 2007:

	http://www.fas.org/irp/congress/2007_hr/uav.pdf

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

See also "Reducing Government Secrecy: Finding What Works" by Steven
Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
     http://www.fas.org/sgp/eprint/aftergood.pdf

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691