from the FAS Project on Government Secrecy
Volume 2010, Issue No. 94
November 29, 2010
Secrecy News Blog: http://www.fas.org/blog/secrecy/
THE RACE TO FIX THE CLASSIFICATION SYSTEM
The massive disclosure of a quarter million diplomatic records by Wikileaks this weekend underscores the precarious state of the U.S. national security classification system.
The Wikileaks project seems to be, more than anything else, an assault on secrecy. If Wikileaks were most concerned about whistleblowing, it would focus on revealing corruption. If it were concerned with historical truth, it would emphasize the discovery of verifiably true facts. If it were anti-war, it would safeguard, not disrupt, the conduct of diplomatic communications. But instead, what Wikileaks has done is to publish a vast potpourri of records -- dazzling, revelatory, true, questionable, embarrassing, or routine -- whose only common feature is that they are classified or otherwise restricted.
This may be understood as a reaction to a real problem, namely the fact that by all accounts, the scope of government secrecy in the U.S. (not to mention other countries) has exceeded rational boundaries. Disabling secrecy in the name of transparency would be a sensible goal -- if it were true that all secrecy is wrong. But if there is a legitimate role for secrecy in military operations, in intelligence gathering or in diplomatic negotiations, as seems self-evident, then a different approach is called for.
Although it has rarely been front-page news, important progress has been made this year in shifting U.S. government secrecy policy away from its cold war roots, and promoting greater discernment and discrimination in the use of national security classification.
In May, the U.S. government formally disclosed the current size of the U.S. nuclear weapons arsenal for the first time (5,113 warheads as of September 30, 2009). Declassification of this information, which is integral to future arms control and disarmament efforts, had been sought -- and resisted -- for decades. That battle for public disclosure has now been won. Also this year, the Report of the Nuclear Posture Review, the basic statement of U.S. nuclear weapons policy, was produced and released in unclassified form for the first time.
In September, the Director of National Intelligence and the Secretary of Defense revealed the total intelligence budget ($80.1 billion in FY2010) as well as its "national" ($53.1 billion) and military ($27 billion) components. This is a more complete and detailed disclosure of U.S. intelligence spending than has ever been provided before. (An aggregate figure -- with no further breakdown -- was disclosed in 1997 and 1998.) It also represents a major policy reversal. Just a few years ago, intelligence community leaders swore under penalty of perjury that disclosure of this information would damage national security and compromise intelligence methods. Now annual intelligence budget disclosure is the new norm.
These are not cosmetic changes. They represent real discontinuities with past practice. Stockpile secrecy and intelligence budget secrecy have each been cornerstones of entire edifices of national security classification that will now be susceptible to change. And in each case their disclosure is the culmination and the successful fruition of years or even decades of advocacy, agitation and litigation by the Federation of American Scientists and other organizations and political leaders.
In fact, the deepest significance of these disclosures may lie in the fact that they demonstrate the feasibility of effective public advocacy in national security secrecy policy. If a half century of nuclear stockpile secrecy and intelligence budget secrecy can be overturned in favor of public disclosure, then citizens can confidently seek the release of many other, less deeply entrenched official secrets as well as a continuing reduction in the overall scope of the secrecy system.
Of course, efforts to reduce government secrecy have not been uniformly successful. For example, the Obama Administration's use of the state secrets privilege to derail litigation on sensitive national security topics is indistinguishable from that of the Bush Administration, despite a September 2009 policy change promising "greater accountability" and more limited use of the privilege. Moreover, it appears that the Obama Justice Department has failed to fulfill its own policy of referring to agency Inspectors General any legitimate cases against the government that could not be litigated because of the state secrets privilege. (We are still attempting to confirm and to document that this is indeed the case.) Nor has it offered any other alternative remedy to those who may have been wronged by U.S. government actions concealed by state secrets claims.
But even when the wheels of progress move slowly -- or slip into reverse -- proponents of greater openness are not helpless. At Secrecy News, we have tried to shine a spotlight on the mechanics of secrecy, and to provide our own almost daily disclosures of official documents of public policy value that are somehow restricted or otherwise hard to find. Not just because they are restricted, but because they are also of public policy value. Over the past year, Secrecy News produced unique coverage of numerous important secrecy stories. For example:
It's impossible to say whether the race to fix the classification system can be won through our kind of advocacy from the outside and by enlightened self-interest within government. Before that happens, classification itself could be rendered moot and ineffective by leaks, abuse or internal collapse. Or, in a reflexive response to continuing leaks, officials might seek to expand the scope of secrecy rather than focusing it narrowly, while increasing penalties for unauthorized disclosures.
- Leaking classified information may be the right thing to do in certain circumstances, suggested district court Judge T.S. Ellis III at a 2009 hearing, "but you have to stand up and take the consequences." We obtained and released the previously unpublished transcript of that remarkable hearing last March. ("Judge: If You Leak Classified Info, Take the Consequences," March 22).
- We offered the most complete and in-depth reporting of the dispute between Congress and the executive branch over Government Accountability Office access to intelligence information. We provided related documentation including a 1988 Office of Legal Counsel opinion and a new Department of Defense directive on GAO access to highly classified DoD special access programs. In congressional testimony and public advocacy, we also argued in favor of an increased role for GAO in intelligence oversight. Despite a veto threat from the White House earlier this year, a favorable resolution of the matter now seems to be within reach. ("GAO Gains a Foothold in Intelligence Oversight," September 29).
- We maintained and expanded our online library of reports from the JASON defense science advisory board. Ours is the most complete public collection of these consistently interesting and influential studies.
- We obtained and published numerous unreleased reports from the DNI Open Source Center, such as a March 2010 report on Turkey's mysterious underground Ergenekon movement.
- We spent more time than we would have liked criticizing the Wikileaks organization, whose spectacular releases of large collections of classified documents continue to generate controversy. From our perspective, Wikileaks has been inattentive to the unintended consequences of its actions, careless about putting individuals in harm's way, particularly in the case of the Afghan war records, and ethically deficient in its invasions of personal privacy. (In its latest release, Wikileaks did redact some names of individuals and some other sensitive information.)
- With other like-minded organizations (and, in this case, a remarkably responsive White House), we helped prevent the creation of an ominous new information control system for so-called Controlled Unclassified Information. Instead of constituting a fourth level of classification, the new CUI marking should simply facilitate information sharing without providing authority for any new restrictions on information. ("A New Policy on Controlled Unclassified Info," November 4).
- We obtained and published a previously undisclosed 2009 report from the Intelligence Science Board on the virtues of non-coercive interrogation. We also reported that the DNI had disbanded the ISB this year.
- We published hundreds of Congressional Research Service reports that had not previously been made available to the public, and numerous other popular records from a three-volume description of the Soviet army to the U.S. Army's latest weapons system handbook to a speculative scientific paper on "interstellar archeology." And quite a bit more.
But in the coming year, we see some promise in what is called the Fundamental Classification Guidance Review. This is a procedure (mandated in executive order 13526, section 1.9) for every agency that classifies information to seek out, identify and remove classification requirements that are no longer valid. In effect, it provides an opportunity and a mechanism for rewriting the "software" of the entire classification system. Though success is not guaranteed, we expect the Review to produce a measurable reduction in the scope of national security classification. We plan to monitor its progress as closely as we can.
Finally, we want to ask for your help. If you identify with our approach and you derive value from the work that we are doing, then we encourage you to help sustain it for another year with a tax-deductible contribution. Although we make our online resources freely available to everyone who wants them, we incur costs in collecting, analyzing, and publishing them as well as in our related advocacy activities. If you can help us with that, please do.
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