[net-gold] Secrecy News -- 03/02/12
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Fri, 2 Mar 2012 16:45:08 -0500 (EST)
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Date: Fri, 2 Mar 2012 11:05:15 -0500
From: Steven Aftergood <saftergood@xxxxxxx>
To: saftergood@xxxxxxx
Subject: Secrecy News -- 03/02/12
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SECRECY NEWS
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from the FAS Project on Government Secrecy
Volume 2012, Issue No. 19
March 2, 2012
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Secrecy News Blog:
http://www.fas.org/blog/secrecy/
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** COURT SAYS AGENCY CLASSIFICATION DECISION IS NOT "LOGICAL"
** DOD INSPECTOR GENERAL TALLIES LEAKS OF CLASSIFIED INTEL
** THE EUROZONE CRISIS, AND MORE FROM CRS
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COURT SAYS AGENCY CLASSIFICATION DECISION IS NOT "LOGICAL"
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In an opinion published this week, DC District Judge Richard W. Roberts did
an astonishing thing that federal courts almost never do: He probed into
the decision to classify a government document and concluded that it was not
well-founded. He ordered the agency to release the document under the
Freedom of Information Act.
The Center for International Environmental Law had sued the Office of the
U.S. Trade Representative (USTR) to obtain a one-page position paper
concerning the U.S. negotiating position in free trade negotiations. The
USTR denied the document, which it said was classified, on grounds that the
parties to the negotiation had agreed that their records would not be
disclosed prior to the end of 2013.
The USTR contended that release of the document would engender a loss of
confidence among U.S. negotiating partners and weaken the position of the
U.S. in future negotiations. It was classified "Confidential" because its
disclosure could reasonably be expected to cause harm to U.S. foreign
relations, USTR said.
But Judge Roberts rejected this line of argument, particularly since the
document in question was a U.S. Government record, not foreign government
information that had been provided in confidence.
"There is... a meaningful difference between the United States' disclosure
of information that it receives in confidence from a foreign government,
with the foreign government's understanding that the information will be
kept secret, and the United States' disclosure of a document that it itself
created and provided to others," he wrote.
"USTR... fails to provide a plausible or logical explanation of why
disclosure of Document 1 reasonably could be expected to damage United
States' foreign relations," Judge Roberts concluded. Therefore, he ruled
that it could not be withheld.
http://www.fas.org/sgp/jud/ciel022912.pdf
In the context of FOIA litigation, this is an extraordinary opinion.
Ordinarily, courts defer to executive branch agencies on questions of
national security classification. It's true that FOIA requires that
information must be "properly" classified in order to be exempt from
disclosure. But the term "properly" has usually been interpreted to mean
procedurally proper, not substantively proper. In other words, courts ask
if the classifier was authorized to classify and if other classification
rules were correctly followed. But unlike Judge Roberts, they do not
normally ask whether the classification decision makes any sense.
Once the question of the merit of the document's classification was
permitted, the USTR postion could not be sustained.
Interestingly, the court did not specifically say that the document must be
declassified. Classification policy is not the court's concern,
particularly since it is not based in statute. Rather, Judge Roberts simply
ordered that the government must provide a copy of the document to the
requester -- whether it is classified or not.
http://www.fas.org/sgp/jud/ciel022912o.pdf
The ruling is a rebuke not only to the USTR, which classified the document,
but also to the Department of Justice, which chose to defend the case in
court. According to 2009 FOIA Guidelines issued by Attorney General Holder,
the Department of Justice is only supposed to defend agency FOIA denials
when disclosure would cause reasonably foreseeable harm or is prohibited by
law. In practice, however, there is no known case in which those Guidelines
have led the Department to decline to defend a FOIA denial.
http://www.fas.org/sgp/foia/ag031909.pdf
The new decision was first reported by Josh Gerstein of Politico in "Judge
issues rare order to disclose classified document," February 29.
http://www.politico.com/blogs/under-the-radar/
Federal courts could do far more to curb unwarranted secrecy than they
usually do, argued Meredith Fuchs, then-general counsel of the National
Security Archive, in a 2006 law review article. See "Judging Secrets: The
Role Courts Should Play in Preventing Unnecessary Secrecy," Administrative
Law Review, Winter 2006.
http://www.gwu.edu/~nsarchiv/fuchs/Fuchs.pdf
DOD INSPECTOR GENERAL TALLIES LEAKS OF CLASSIFIED INTEL
In response to a congressional directive, the Department of Defense
Inspector General has provided to Congress "an inventory of all identified
unauthorized disclosures of SCI [sensitive compartmented information, or
classified intelligence] to the public within DoD from the past three
calendar years." The classified IG report also described the actions taken
by DoD in response to the leaks, including referrals to the Department of
Justice for criminal investigation.
An unclassified version of the IG report, stripped of almost all of its
content, was released yesterday. See "Report on Sensitive Compartmented
Information Leaks in the Department of Defense," DoD Inspector General
Report No. 2012-056, February 27, 2012:
http://www.fas.org/sgp/othergov/dod/ig-leaks.pdf
"We confirmed with DoD components that some unauthorized disclosures of SCI
to the public did occur within DoD between December 23, 2008 and December
23, 2011. Among the unauthorized SCI disclosures to the public reported, a
DoD Senior Official was directly attributed as a source of unauthorized SCI
disclosures to the public," the unclassified IG report stated. The DoD
Senior Official was not identified in the published report.
The IG report includes previously undisclosed congressional language from
the classified annex to the FY2012 House Defense Appropriations Bill:
"The Committee is appalled with the number of leaked classified and
compartmented facts and reports that have occurred over the past three
calendar years. The sources and methods used for clandestine and covert
activities are some of the most closely guarded secrets in the Department of
Defense and intelligence community and the fact that these details are being
exposed on a regular basis by 'senior administration officials' is of grave
concern. These sources and methods are the life-blood of intelligence and
will not be maintained or cultivated in the future if they continue to be
exposed.... The Committee believes that these leaks are unacceptable, need
to be investigated, and stopped."
Among other things, the DoD IG response illustrates the fact that agency
Inspectors General have the capacity to conduct detailed and exacting
oversight of classification policy when they are assigned to do so. See
"DoD Inspector General Takes on Classification Oversight," Secrecy News,
February 8, 2012.
http://www.fas.org/blog/secrecy/2012/02/dodig_class.html
THE EUROZONE CRISIS, AND MORE FROM CRS
New and updated reports from the Congressional Research Service that
Congress has not made directly available to the public include the
following.
North Korea's Nuclear Weapons: Technical Issues, February 29, 2012:
http://www.fas.org/sgp/crs/nuke/RL34256.pdf
Afghanistan Casualties: Military Forces and Civilians, February 29, 2012:
http://www.fas.org/sgp/crs/natsec/R41084.pdf
The Eurozone Crisis: Overview and Issues for Congress, February 29, 2012:
http://www.fas.org/sgp/crs/row/R42377.pdf
Sovereign Debt in Advanced Economies: Overview and Issues for Congress,
February 29, 2012:
http://www.fas.org/sgp/crs/misc/R41838.pdf
Direct Overt U.S. Aid and Military Reimbursements to Pakistan,
FY2002-FY2012, February 29, 2012:
http://www.fas.org/sgp/crs/row/pakaid.pdf
Military Construction: A Snapshot of the President's FY2013 Appropriations
Request, February 28, 2012:
http://www.fas.org/sgp/crs/natsec/R42376.pdf
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_______________________________________________
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Secrecy News is written by Steven Aftergood and published by the Federation
of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
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Support the FAS Project on Government Secrecy with a donation:
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_______________________
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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@xxxxxxx
voice: (202) 454-4691
twitter: @saftergood
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Other related posts:
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