SECRECY NEWS
from the FAS Project on Government Secrecy
August 30, 2001
** ANTI-LEAK LAW MAY BE "UNWORKABLE"
** GAO CRITICIZES DOE SECURITY
ANTI-LEAK LAW MAY BE "UNWORKABLE"
The controversial Senate Intelligence Committee proposal to criminalize
unauthorized disclosures of classified information would be extremely
difficult to implement in practice, skeptical security officials say. Among
other things, it might require the establishment of an entire new
bureaucracy to review the proposed public statements of millions of
Americans who once held a clearance and now fear prosecution for disclosing
classified information.
The practical difficulty with the anti-leak proposal stems from the absence
of clarity about what is "classified." The definition of classified
information is obviously not stable over time. What is classified today may
not be classified tomorrow, and vice versa.
But to complicate matters further, different agencies may assign a different
classification status to the same information at the same time. "Even the
experts cannot always agree on what is classified," according to one senior
national security agency official who recently retired. "There is
predictable variability."
(This fact has sometimes been turned to advantage by Freedom of Information
Act requesters who request declassification of the same document from
different agencies, yielding substantially different but complementary
declassified texts.)
The upshot is that a scrupulous person may never be absolutely sure that a
particular piece of information concerning national defense or foreign
policy is unclassified. "The [proposed anti-leak] legislation puts at risk
anyone who has or had a clearance who communicates with the press since
there is not even agreement about what is legitimately or properly
classified," the official said.
"The existing system isn't good, but when the [proposed] law removes intent
to harm [as a criterion of guilt for disclosing information] and doesn't
define how you know when something is properly classified, that has the
effect of shocking Pavlov's poor dog at random times no matter how he
behaves."
"The only way to proceed with a semblance of protection would be for anyone
concerned about getting in trouble to obtain a classification review in
writing about what he or she proposes to say. But administratively, this
would be a nightmare," the official said.
"The whole idea is unworkable. As someone who has spent some time with the
classification system, I do not think our government's classification
apparatus is capable of handling the many inquiries that would surely arise
from the millions of people who have had clearances who may wish to talk to
the press, write a letter to the editor, discuss foreign policy in public,
etc."
Implementation of the law might therefore require the creation of a new
government entity whose sole purpose would be the review and approval (or
censorship) of proposed statements from formerly cleared persons who want to
avoid committing a felony by disclosing information that might be
classified.
No one has begun to consider how such a new government-wide prepublication
review agency might function, or what it would cost.
Another significant degree of complexity arises from the fact that the
proposed law prohibits disclosure of "any" classified information -- not
just information to which a person may have had authorized access. This
means that any discussion or elaboration of classified information that is
already in the public domain could also be a felony. And even
prepublication review might not solve that problem.
"Government reviewers would not be able to certify that a particular
submission was unclassified if it contained classified information taken
from the public domain," the official said. "It might even be legally
impermissible for them to provide an expurgated text or to otherwise
indicate to a formerly cleared person what information in his proposed
statement is classified, since he or she is no longer authorized to possess
such information."
In any case, "If Freedom of Information Act requests are a rough prototype
of what a citizen has to go through to get a classification review completed
for requested documents, anybody requesting an official review to help them
avoid a felony for releasing classified information is going to have to wait
a long time," the official said.
"Agencies typically take many months to some years to review information
requested under the FOIA. If the press can't wait for John Q. Clearance to
make sure he isn't going to prison, then the public is effectively denied
any input he might have provided. Goodbye, First Amendment."
For now, the Senate Intelligence Committee appears to be hell-bent on
advancing this proposal. A seemingly perfunctory public hearing on the
matter is scheduled for September 5. Meanwhile, opposition continues to
mount.
"Criminalizing all leaks to stop the few that actually pose a security
threat amounts to burning down the house to roast the pig," according to an
editorial in the Chicago Tribune today:
http://chicagotribune.com/news/opinion/chi-0108300067aug30.story
GAO CRITICIZES DOE SECURITY
"The Department of Energy (DOE) has recently taken, and continues to take,
steps to upgrade protection and control over its classified information, but
additional steps are needed," according to a new report of the General
Accounting Office (GAO).
Though forcefully stated, the GAO's latest criticisms of DOE security policy
are picayune. The new report contends that DOE should document with greater
specificity its determinations that individual employees have a "need to
know" classified information, and that the agency should consider
reinstituting certain access controls on top secret information.
Rather obtusely, the GAO authors do not acknowledge the existence of any
tension between security and mission performance. Yet aggressive security
measures have been seen to adversely affect employee morale at DOE
laboratories, and to hinder recruitment and retention of highly skilled
personnel, posing a threat to the long-term vitality of these institutions.
It will always be possible to conceive of improvements in security,
especially if cost and performance considerations are excluded. But perfect
security could be achieved only by shutting down all DOE facilities. Only
then could one say with certainty that no more secrets would ever be lost
from those facilities.
See the new GAO report ("DOE Needs to Improve Control Over Classified
Information," GAO-01-806, August 24, 380 kB PDF file) here:
http://www.fas.org/sgp/othergov/doe/gao01806.pdf
******************************
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
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