[Intelforum] Secrecy News -- 02/22/12

Wed Feb 22 11:17:09 EST 2012

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 16
February 22, 2012

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

**     DOD REPORTS "IMPRESSIVE STRIDES" IN UPDATING CLASSIFICATION
**     MEDIA ORGS FILE AMICUS BRIEF IN STERLING LEAK CASE
**     CHARACTERISTICS OF MEMBERS OF CONGRESS, AND MORE FROM CRS

DOD REPORTS "IMPRESSIVE STRIDES" IN UPDATING CLASSIFICATION

The Department of Defense said it has cancelled more than 300 of its 1800
classification guides as a result of the ongoing Fundamental Classification
Guidance Review.  The defunct guides can no longer be used to authorize the
classification of national security information.

"The Department has continued to make impressive strides in updating our
Security Classification Guides (SCGs) and remains focused on ensuring that
guidance reflects current operational and technical circumstances relevant
to the protection of properly classified information," DoD told the
Information Security Oversight Office in a February 16, 2012 interim
report.

	http://www.fas.org/sgp/othergov/dod/fcgr021612.pdf

"As a result, through the period of this report, approximately 17.7% of
DoD's non-compartmented SCGs have either been eliminated or identified for
retirement," the DoD report said.  (Non-compartmented SCGs do not include
classification guidance for DoD special access programs or compartmented
intelligence programs, which are being reviewed separately.)

The Fundamental Classification Guidance Review was mandated by President
Obama's 2009 executive order 13526 in order to identify and eliminate
inappropriate classification requirements.  It is the Administration's
primary mechanism for combating overclassification.

Most of the newly cancelled guides (237 of them) originated with the Navy,
which also has the largest number of guides (820).  The Army eliminated 21
guides out of 363, and the Air Force eliminated 27 out of 283.

The significance of the cancellations is hard to gauge, especially since
the cancelled guides are not identified in the new interim report to ISOO. 
In some cases, their elimination may make no practical difference since
they were no longer in use anyway.  In other cases, the cancellations may
reflect an updated consensus concerning the sensitivity of the information.

Collectively, the elimination of hundreds of classification guides will
help to clear away much of the accumulated detritus of the national
security secrecy system.  It will increase the clarity of classification
policy, and reduce some of its arbitrariness.

If the Fundamental Review had reduced the inventory of classification
requirements by five percent, it would have been worthwhile.  Remarkably,
it now appears that that goal will be surpassed a few times over.

In its own interim report to ISOO, the Office of the Director of National
Intelligence said that 2 security classification guides out of ODNI's total
of 29 had been eliminated by December 31 as the result of the Fundamental
Classification Guidance Review.

	http://www.fas.org/sgp/othergov/intel/fcgr012712.pdf

MEDIA ORGS FILE AMICUS BRIEF IN STERLING LEAK CASE

Dozens of major news media organizations joined together to defend the
notion of a reporter's privilege to protect the identity of a confidential
against compulsory disclosure.

The organizations filed an amicus curiae brief in support of New York
Times reporter James Risen, who has been subpoenaed to testify in the case
of Jeffrey Sterling, the former CIA officer who is accused of leaking
classified information to Mr. Risen.  The case is currently on pre-trial
appeal before the Fourth Circuit Court of Appeals.

"All amici are engaged in or support the dissemination of news and
information to the public, at times through the use of confidential
sources," the amicus brief stated. "Amici are concerned that if this Court
adopts the Government's unprecedented position-- that journalists do not
possess a qualified privilege that protects them against the compelled
disclosure of confidential sources in criminal trials-- their ability to
report on matters of substantial public concern will be significantly
impaired."

	http://www.fas.org/sgp/jud/sterling/022112-amicus2.pdf

The brief cited important news stories that were based in part on
unauthorized disclosures of classified information.

"In many of these instances, although the source may arguably have
violated a legal duty by providing such information to a journalist in the
first instance, the subsequent reporting inevitably led to the discovery
and prosecution of much more serious crimes. Amici respectfully submit that
an inventory of those crimes that have gone unpunished because a journalist
was permitted to protect a source would be a very short list indeed, and
would pale in comparison to the number of significant criminal prosecutions
made possible directly as a result of news reports containing information
gleaned from confidential sources," the brief stated.

The brief is an emphatic chorus of support for Mr. Risen, and it offers a
clear statement that the public interest in a free press is at stake in
this case.

One thing it does not do, however, is simplify the matter for the appeals
court or help to devise some kind of resolution of the conflict between the
parties.

Interestingly, Mr. Risen's own brief was more accommodating.  It even
suggested the possibility of "bad leaks" that were undeserving of
privileged protection.  A case-by-case public interest analysis could be
conducted to distinguish between good and bad leaks, the February 14 brief
proposed.

Such an analysis "is the most direct way to protect journalism based on
leaks that cause more good than harm. It also provides a basis to force the
privilege to yield for leaks that cause more harm than good."

	http://www.fas.org/blog/secrecy/2012/02/reporters_privilege.html

In this case a public interest analysis would vindicate Mr. Risen, his
attorney wrote.

CHARACTERISTICS OF MEMBERS OF CONGRESS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that
Congress has not made readily available to the public include the
following.

Representatives and Senators: Trends in Member Characteristics Since 1945,
February 17, 2012:

	http://www.fas.org/sgp/crs/misc/R42365.pdf

The Federal Communications Commission: Current Structure and Its Role in
the Changing Telecommunications Landscape, February 21, 2012:

	http://www.fas.org/sgp/crs/misc/RL32589.pdf

F-35 Joint Strike Fighter (JSF) Program: Background and Issues for
Congress, February 16, 2012:

	http://www.fas.org/sgp/crs/weapons/RL30563.pdf

War Powers Litigation Initiated by Members of Congress Since the Enactment
of the War Powers Resolution, February 17, 2012:

	http://www.fas.org/sgp/crs/natsec/RL30352.pdf

Bahrain: Reform, Security, and U.S. Policy, February 21, 2012:

	http://www.fas.org/sgp/crs/mideast/95-1013.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 at fas.org
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twitter: @saftergood