Secrecy News -- 05/14/12
Steven Aftergood
saftergood at fas.org
Mon May 14 06:57:11 PDT 2012
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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 45
May 14, 2012
Secrecy News Blog: http://www.fas.org/blog/secrecy/
** NSA DECLASSIFIES SECRET DOCUMENT AFTER PUBLISHING IT
** UNDERSTANDING CHINA'S POLITICAL SYSTEM, AND MORE FROM CRS
NSA DECLASSIFIES SECRET DOCUMENT AFTER PUBLISHING IT
The National Security Agency last week invoked a rarely-used authority in
order to declassify a classified document that was mistakenly posted on the
NSA website with all of its classified passages intact.
The article is a historical study entitled "Maybe You Had to Be There: The
SIGINT on Thirteen Soviet Shootdowns of U.S. Reconnaissance Aircraft." It
was written by Michael L. Peterson and was originally published in the
classified journal Cryptologic Quarterly in 1993.
Late in the afternoon of May 11 (not May 9 as stated on the NSA website),
the NSA published a formally declassified version of the article with the
annotation "Declassified and approved for release by NSA... pursuant to
E.O. 13526 section 3.1(d)...."
http://www.fas.org/irp/nsa/maybe_declass.pdf
Section 3.1(d) of executive order 13526 permits the declassification of
properly classified information when there is an overriding public interest
in doing so. It is almost never cited and it is hard to think of another
occasion when it has been used by any government agency to justify
declassification. It reads:
"3.1(d) It is presumed that information that continues to meet the
classification requirements under this order requires continued protection.
In some exceptional cases, however, the need to protect such information
may be outweighed by the public interest in disclosure of the information,
and in these cases the information should be declassified. When such
questions arise, they shall be referred to the agency head or the senior
agency official. That official will determine, as an exercise of
discretion, whether the public interest in disclosure outweighs the damage
to the national security that might reasonably be expected from
disclosure...."
So what was "exceptional" about this particular NSA historical study? What
was the overriding public interest in it that justified its complete
declassification despite its presumed eligibility for continued
classification? What unavoidable damage was expected to result from its
disclosure? The NSA Public Affairs Office refused to answer these
questions, despite repeated inquiries.
In fact, NSA was being disingenuous by invoking section 3.1(d). There was
nothing exceptional about the contents of the document, and there was no
overriding public interest that would have compelled its disclosure if it
had been properly classified. Nor is any national security damage likely
to follow its release.
Rather, the hasty NSA declassification action was intended to conceal the
fact that NSA had mistakenly published the full classified text of the
document on its website two days earlier, after having rebuffed regular
requests for declassification.
In response to a May 2009 Mandatory Declassification Review request from
aerospace writer Peter Pesavento, NSA had previously released a heavily
redacted version of the article. Mr. Pesavento appealed the case to the
Interagency Security Classification Appeals Panel, and last month the Panel
agreed that some additional portions of the document could be declassified,
while the rest should remain classified. The partially declassified
document was still working its way through the appeal system and had still
not been provided to Mr. Pesavento.
But then on May 9, the National Security Agency inexplicably published the
entire document on its website. Instead of censoring the text by blacking
out the classified portions, those portions were actually highlighted,
leaving the document fully available to startled readers. After we
contacted the NSA on May 10 to inquire about the classification status of
the document, it was immediately removed from the NSA site.
But we retained a copy of the uncensored classified article as published
by the NSA, which is available here:
http://www.fas.org/irp/nsa/maybe_you.pdf
Secrecy News submitted several questions to NSA Public Affairs last week
about the classified document, and we indicated our intention to publish it
ourselves since it did not appear to meet current classification standards.
NSA officials asked for a four-day extension of our deadline to give them
time to respond to our questions, and we agreed. But that proved to be a
futile gesture on our part, since the NSA Public Affairs Office in the end
refused to answer any of the questions we posed. In retrospect, it appears
that NSA never intended to answer any of our questions but simply wanted to
preempt the reposting of the classified document by hastily declassifying
it.
The newly disclosed article was originally classified SECRET SPOKE. SPOKE
is a now-defunct classification compartment for communications
intelligence, explained intelligence historian Jeffrey Richelson, who first
spotted the uncensored NSA publication online. (It so happens that Dr.
Richelson's own work is cited in the article.)
In the classified version of the article that was posted online by NSA,
all of the classified paragraphs of the article were marked with the basis
for their classification. In most cases, this was section 1.4(c) of the
executive order on classification, which pertains to "intelligence
activities, intelligence sources or methods, or cryptology." In some
cases, the basis for classification was section 1.4(d) on "foreign
relations or foreign activities of the United States, including
confidential sources.' In a couple of other cases, the justification cited
was Public Law 86-36, which is the National Security Agency Act, a
statutory non-disclosure provision. A week ago, this material purportedly
posed a threat of "serious damage" to national security if disclosed. Now
all of it has been made public.
While communications intelligence is among the most sensitive categories
of national security information, this article is clearly remote from any
contemporary security issues. It reviews the record of signals
intelligence coverage of thirteen episodes in which Soviet forces shot down
U.S. aircraft. But those incidents occurred between 1950 and 1964 -- or
many generations ago in terms of intelligence technology and practice.
On the other hand, the article does present what appears to be some
valuable "new" information including some fine details about SIGINT
coverage of the U-2 incident in May 1960.
But the author himself acknowledged that all of this is ancient history.
"Looking back over forty years," he wrote in the conclusion of his 1993
paper, "it may be difficult to give sufficient weight to the level of
anxiety over and ignorance about the Soviet Union experienced by Americans.
Moreover, the fear of another Pearl Harbor was very real. The airborne
reconnaissance program helped reduce these fears by erasing the ignorance."
"Little of this concern prevails today," he noted. "Why all the fuss?
Maybe you had to be there."
But even "being there" does not help one to understand the erratic NSA
classification practices reflected in this case. NSA classification policy
seems to be completely untethered from contemporary national security
threats.
Among other things, the NSA's abrupt declassification of the document
shows that the Interagency Security Classification Appeals Panel needs to
recalibrate its document review procedures. It is now clear that the Panel
was unduly deferential to NSA, and that it erred last month by giving
credence to the NSA's claims that portions of the document warranted
continued classification. Today, not even the NSA says that.
UNDERSTANDING CHINA'S POLITICAL SYSTEM, AND MORE FROM CRS
New and updated reports from the Congressional Research Service that
Congress has instructed CRS not to make publicly available include the
following.
Understanding China's Political System, May 10, 2012:
http://www.fas.org/sgp/crs/row/R41007.pdf
Youth and the Labor Force: Background and Trends, May 10, 2012:
http://www.fas.org/sgp/crs/misc/R42519.pdf
Vulnerable Youth: Employment and Job Training Programs, May 11, 2012:
http://www.fas.org/sgp/crs/misc/R40929.pdf
Pakistan's Nuclear Weapons: Proliferation and Security Issues, May 10,
2012:
http://www.fas.org/sgp/crs/nuke/RL34248.pdf
Comparison of Rights in Military Commission Trials and Trials in Federal
Criminal Court, May 9, 2012:
http://www.fas.org/sgp/crs/natsec/R40932.pdf
Immigration-Related Worksite Enforcement: Performance Measures, May 10,
2012:
http://www.fas.org/sgp/crs/homesec/R40002.pdf
Same-Sex Marriages: Legal Issues, May 9, 2012:
http://www.fas.org/sgp/crs/misc/RL31994.pdf
Afghanistan Casualties: Military Forces and Civilians, May 10, 2012:
http://www.fas.org/sgp/crs/natsec/R41084.pdf
_______________________________________________
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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_______________________
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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