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. [Update: This is not quite correct, since most of the backlog that needs to be processed for release does not require "review." Only a subset of the backlog is being referred to agencies for review.]
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.
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. [Update 2: As noted above, this is not correct, since most of the 400 million pages awaiting processing for public release do not require additional declassification review. Even so, the December 2013 deadline is not likely to be met.]
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:
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.)
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:
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.
- 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.
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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