Secrecy News -- 12/19/12
Steven Aftergood
saftergood at fas.org
Wed Dec 19 06:36:17 PST 2012
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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 127
December 19, 2012
Secrecy News Blog: http://www.fas.org/blog/secrecy/
** CAN DISCLOSURES OF CLASSIFIED INFO BE AUTHORIZED?
** RISING ECONOMIC POWERS, AND MORE FROM CRS
** IMAGERY DECLASSIFICATION PREPARATIONS CONTINUE
** JASON ON "COMPRESSIVE SENSING" FOR DOD SENSORS
CAN DISCLOSURES OF CLASSIFIED INFO BE AUTHORIZED?
It is plainly true that executive branch officials will sometimes disclose
classified information to reporters and other uncleared individuals. But
this practice is not explicitly authorized in any official statement of
classification policy. In fact, with an exception for life-threatening
emergencies, it is usually understood to be prohibited.
How can the obviously flexible practice and the seemingly prohibitive
policy be reconciled? A newly updated report from the Congressional
Research Service presents a close reading of the relevant rules and
regulations in search of some wiggle room for authorized disclosures of
classified information.
"Nothing in the Executive Order addresses an informal procedure for
releasing classified information [to reporters]. E.O. 13526 section 1.1
provides that '[c]lassified information shall not be declassified
automatically as a result of any *unauthorized* disclosure of identical or
similar information,' but does not address what happens in the event of a
disclosure that was in fact authorized," the CRS report observes.
"By definition, classified information is designated as such based on
whether its *unauthorized* disclosure can reasonably be expected to cause a
certain level of damage to the national security. This may be read to
suggest that disclosures may be authorized under such circumstances when no
damage to national security is reasonably expected." (But under those
circumstances, it might be noted, the information should be promptly
declassified.)
The CRS report, written by legislative attorney Jennifer K. Elsea,
continues: "Nothing in the order provides explicit authority to release
classified information that exists apart from the authority to declassify,
but it is possible that such discretionary authority is recognized to
release information outside the community of authorized holders without
formally declassifying it." Indeed, this appears to be an accurate
characterization of actual practice.
In any case, "there is little to stop agency heads and other high-ranking
officials from releasing classified information to persons without a
security clearance when it is seen as suiting government needs." Again, an
accurate description-- particularly since "the Attorney General has
prosecutorial discretion to choose which leaks to prosecute."
See "The Protection of Classified Information: The Legal Framework,"
updated December 17, 2012:
http://www.fas.org/sgp/crs/secrecy/RS21900.pdf
Overall, "Executive Branch policy appears to treat an official disclosure
as a declassifying event, while non-attributed disclosures [to reporters or
others] have no effect on the classification status of the information,"
the author writes.
"For example, the Department of Defense instructs agency officials, in the
event that classified information appears in the media, to neither confirm
nor deny the accuracy of the information. The Under Secretary of Defense
for Intelligence is then advised to 'consult with the Assistant Secretary
of Defense for Public Affairs and other officials having a primary interest
in the information to determine if the information was officially released
under proper authority.'"
But, the CRS report astutely notes, the relevant DoD regulation "does not
clarify what happens in the event the disclosure turns out to have been
properly authorized."
And so it seems that the DoD regulation offers the conceptual space for an
authorized disclosure of classified information.
(As if to provide an ironic illustration of the point, the Under Secretary
of Defense for Intelligence himself -- Michael Vickers -- was reportedly
cited in a referral to the Department of Justice for disclosing potentially
restricted information concerning the pursuit of Osama bin Laden to
filmmakers. See "Bin Laden film leak was referred to Justice; leaker top
Obama official" by Marisa Taylor and Jonathan S. Landay, McClatchy
Newspapers, December 17, 2012. In a statement last night, the Department
of Defense confirmed that Mr. Vickers is a subject of a pending Inspector
General investigation. But it said the information in question was
unclassified in its entirety.)
The CRS report naturally does not constitute an authoritative
interpretation of the executive order, and in some respects it may be in
error. The report mistakenly states (at footnote 51) that the DOJ Media
Leak Questionnaire that agencies must complete when a referring a leak for
investigation is "apparently... part of a Memorandum of Understanding
concluded between the Department of Justice and elements of the
Intelligence Community." But a review of the Memorandum, described in
Secrecy News earlier this week, shows that that supposition is incorrect.
The two are separate documents. See "Crimes Reports and the Leak Referral
Process," Secrecy News, December 17, 2012:
http://www.fas.org/blog/secrecy/2012/12/crimes_reports.html
Anti-leak legislation that is pending in the Senate would require
executive branch officials to record all authorized disclosures of
classified intelligence to the press, and to notify Congress when they
occur (cf. sections 501 and 502 of Title V of the FY 2013 intelligence
authorization bill).
These provisions, which may prove unworkable in practice, are presumably
intended to enable Congress to publicly comment on classified intelligence
matters with the same freedom that agency officials already do. But the
public interest concern raised by the notification provisions is that if
they are strictly imposed, they may discourage all authorized disclosures
of classified intelligence, yielding a net reduction in public access to
government information.
RISING ECONOMIC POWERS, AND MORE FROM CRS
New and updated reports from the Congressional Research Service that
Congress has directed CRS not to release to the public include the
following.
Rising Economic Powers and U.S. Trade Policy, December 3, 2012:
http://www.fas.org/sgp/crs/row/R42864.pdf
Unauthorized Aliens Residing in the United States: Estimates Since 1986,
December 13, 2012:
http://www.fas.org/sgp/crs/misc/RL33874.pdf
DOD Alternative Fuels: Policy, Initiatives and Legislative Activity,
December 14, 2012:
http://www.fas.org/sgp/crs/natsec/R42859.pdf
Federal Land Ownership: Current Acquisition and Disposal Authorities,
December 13, 2012:
http://www.fas.org/sgp/crs/misc/RL34273.pdf
The Controlled Substances Act: Regulatory Requirements, December 13, 2012:
http://www.fas.org/sgp/crs/misc/RL34635.pdf
IMAGERY DECLASSIFICATION PREPARATIONS CONTINUE
Intelligence community officials have been meeting with representatives of
the National Archives to discuss the anticipated declassification and
release of intelligence imagery from the KH-9 satellite dating between 1971
and 1984.
Officials have been negotiating the transfer of the original negatives
from the KH-9 system and the provision of finding aids, according to a
newly released but heavily redacted report from the National Geospatial
Intelligence Agency, dated June 2012.
http://www.fas.org/irp/agency/nga/imagery-declass.pdf
Multiple releases of declassified imagery are planned over the coming year
"with final delivery of imagery scheduled for September 2013." See
"Intelligence Imagery Set to be Disclosed in 2013," Secrecy News, October
22, 2012.
http://www.fas.org/blog/secrecy/2012/10/hexagon_imagery.html
JASON ON "COMPRESSIVE SENSING" FOR DOD SENSORS
The latest report from the elite JASON science advisory panel is devoted
to the subject of "compressive sensing." This term generally refers to the
use of sensors for imaging (or other sensing) of an object in a manner that
uses a limited subset of the available data in order to improve efficiency
or conserve resources.
"Compressive sensing involves intentionally under-sampling an object or
image, typically in a random manner, and then using a companion process
known as sparse reconstruction to recover the complete object or image
information...," the JASON report says.
"Compressed sensing can conceivably lead to reductions in data link
requirements, reductions in radar resources needed for radar image
formation (thereby providing the radar more resources for its other
functions such as target detection, target tracking, and fire control),
increased angular resolution without commensurate increases in array costs,
and increased fields of view without degradation in resolution..."
"Compressive sensing is not a 'free lunch'," the report cautions, "but
always involves a tradeoff; reduced data may save measurement resources,
but it also means a lower signal-to-noise ratio and possibly other
artifacts, such as side lobes or false alarms."
A copy of the new JASON report was obtained by Secrecy News. See
"Compressive Sensing for DoD Sensor Systems," November 2012:
http://www.fas.org/irp/agency/dod/jason/compress.pdf
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
The Secrecy News Blog is at:
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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
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