[Intelforum] Secrecy News -- 05/29/12

Tue May 29 10:40:10 EDT 2012

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 50
May 29, 2012

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

**     INSTEAD OF RAMPING UP, DECLASSIFICATION ACTIVITY SLOWED IN 2011
**     MOVE TO DECLASSIFY FISA COURT RULINGS YIELDS NO RESULTS

INSTEAD OF RAMPING UP, DECLASSIFICATION ACTIVITY SLOWED IN 2011

The total number of pages of government records that were reviewed for
declassification last year, as well as the number that were actually
declassified, declined slightly from the year before, according to the 2011
annual report from the Information Security Oversight Office (ISOO) that
was published today.

Not only is this trend line unfavorable in itself, it also means that the
goal set by President Obama of reviewing the entire backlog of 25 year old
historical records awaiting declassification by December 2013 is out of
reach and will not be achieved.

The latest ISOO annual report, like its predecessors, is a sometimes
bewildering of collection of raw statistics about government classification
and declassification activity, some of which have little or no meaning or
are actually misleading.

	http://www.archives.gov/isoo/reports/2011-annual-report.pdf

So, for example, ISOO reports that there were precisely 127,072 original
classification decisions to create new secrets throughout the government in
2011.  But upon close inspection this combined total of all agency
classification actions conveys no meaningful information since the
individual agencies exercise their classification authority in different
and incommensurate ways.  Thus, CIA and ODNI each generated only four
original classification decisions -- 0.003% of the total -- though they are
among the most secrecy-intensive agencies in government.  Meanwhile, the
much less secretive Department of State supposedly accounted for 48,968
original classification decisions last year, or 38% of all new secrets. 
These figures are simply not an accurate representation of executive branch
classification activity as it exists in practice, and adding them together
does not improve their quality.

The ISOO report also indicates that derivative classification activity --
that is, the restatement in new form of information that was previously
classified -- increased sharply by 20% over the previous year.  But the
report warns that the new data reflects revised reporting requirements, so
that it cannot be properly compared to previous years' numbers.  In other
words, it has no particular significance or utility.

To its credit, ISOO seems cognizant that the current reporting format is
not very useful or informative.  The report states that ISOO "has begun to
re-evaluate the elements of information that the executive branch agencies
are asked to provide for this annual report" and that the "re-evaluation
covers most aspects of the reporting process."

Still, some of the data presented by ISOO are striking, though their
actual meaning needs to be teased out by the reader.

So, for example, a total of 52,760,524 pages were reviewed for
declassification in 2011, and 26,720,121 of those pages were declassified. 
These are not trivial numbers, but they are a reduction from the 2010 total
of 53,087,345 pages reviewed and 29,050,290 pages declassified.  More
significantly, the reported level of activity means that the President's
2009 goal of reviewing 400 million pages of classified records of
historical importance by December 2013 cannot and will not be achieved. 
Instead of ramping up to meet the presidentially-mandated requirement -- to
review an average of 100 million pages per year for four years --
declassification activity last year actually leveled off and declined.
Curiously, the new ISOO report to the President made no mention of this
disappointing fact.

The ISOO report does make the important observation that, as in past
years, the majority of agency classification determinations that were
appealed by requesters to the Interagency Security Classification Appeals
Panel were overturned by the Panel in whole or in part, resulting in the
declassification and release of records that agencies had wanted to
withhold as classified.

Because this pattern has persisted for 15 years (since the Panel was
established), it represents empirical proof that overclassification has
been and still remains pervasive, even by internal executive branch
standards.  In fact, there are indications that the Panel itself is too
conservative in its handling of classification disputes.  Recently, even
the hyper-retentive National Security Agency decided to fully release a
document despite a Panel finding that it should remain partly classified.

The radical implications of ISCAP's unbroken record of overturning a
majority of the agency classification positions it reviews -- which suggest
that agencies are consistently misclassifying and failing to properly
declassify information -- are not examined in the ISOO report.

However, ISOO Director John P. Fitzpatrick noted in his transmittal letter
to the President that an initiative known as the Fundamental Classification
Guidance Review holds promise for improving the integrity of classification
practice.  The Review, which is now drawing to a conclusion, is an effort
to update agency classification guidance and to identify currently
classified information that no longer should be classified.  "We believe
that significant results will be obtained from this program," Mr.
Fitzpatrick wrote.

MOVE TO DECLASSIFY FISA COURT RULINGS YIELDS NO RESULTS

An initiative that was started two years ago to declassify significant
rulings of the Foreign Intelligence Surveillance Court regarding domestic
intelligence surveillance has produced no declassified records, a Justice
Department official confirmed last week.

In response to complaints about the rise of "secret law," the Justice
Department and the Office of the Director of National Intelligence
established a new process in 2010 to declassify opinions of the FISA Courts
(including the Foreign Intelligence Surveillance Court as well as the FIS
Court of Review) that contained "important rulings of law."

Prior to her confirmation hearing in May 2011, DoJ National Security
Division (NSD) director Lisa Monaco told the Senate Intelligence Committee
that "all of the opinions and orders... issued by the FISA Courts that
include significant constructions or interpretations of FISA" would be
reviewed for declassification.

"If confirmed," she told the Senate Committee, "I will work to ensure that
the Department continues to work with the ODNI to make this important body
of law as accessible as possible, consistent with national security, and in
a manner that protects intelligence sources and methods, and other properly
classified and sensitive information."  See her response to question 9 in
these pre-confirmation hearing questions:

	http://www.fas.org/irp/congress/2011_hr/monaco-preh.pdf

But despite these assurances, and two years after that declassification
review process began, nothing has been declassified.  A Freedom of
Information Act request for the newly declassified FISA Court opinions
turned up no records.  A Senate Intelligence Committee official said the
Committee was still awaiting the declassified release as well.  (Classified
versions of "significant" opinions are already provided to the intelligence
committees, DoJ says.)

	http://www.fas.org/sgp/news/2012/05/doj050812.pdf

Dean Boyd of the DOJ National Security Division confirmed that the current
review process had produced no new declassified opinions since 2010.  He
said that there were several factors that complicated the declassification
of the FISA Court opinions.  According to Mr. Boyd:

*	The documents at issue do not belong exclusively to the Justice
Department, or indeed to the Executive Branch.  These legal opinions are
judicial documents subject to the jurisdiction of the courts that issue
them.
*	These documents are classified because they meet the criteria for
classification set forth in Executive Order 12958 [should be: 13526] and
are subject to the statutory responsibility of the Director of National
Intelligence (DNI) to protect sources and methods.
*	Further, any contemplated public disclosure of such FISA Court opinions 
must take account of legitimate concerns that public availability of FISA
Court opinions, even in redacted form, may enable a sophisticated adversary
to deduce particular sources and methods or take effective countermeasures
that deprive the United States of intelligence, he said. 

There have been three cases in the past when FISA Court opinions were made
public, including a FISC opinion dated May 17, 2002, a FISCR opinion dated
November 18, 2002, and a FISCR opinion dated August 22, 2008.

	http://www.fas.org/irp/agency/doj/fisa/fisc051702.html

	http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

	http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf

But Mr. Boyd told Secrecy News that "All three of these opinions
represented comparatively rare instances in which a FISA Court produced
substantial legal opinions that could be severed from the sensitive facts
of the underlying applications."  So those prior releases are not
necessarily precedents for any future releases, in the Department's view.

Still, the current declassification review process continues, Mr. Boyd
said.  But it is unclear how the factors that have prevented
declassification for the last two years would change to permit disclosure
in the foreseeable future.

_______________________________________________
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
voice:  (202) 454-4691
twitter: @saftergood