This Month: Intelligence Authorities Wax on Overclassification

WASHINGTON — The Internet Chronicle has obtained footage of classification authorities discussing the classification process and allegations of overclassification. Early this month the national intelligence director counsel, Robert Litt, and a former director of the Information Security Oversight Office, J. William Leonard, took questions from attendees of a Brennan Center forum on secrecy and security.

Leonard pointed out that Obama administration officials had been instructed not to discuss the CIA’s targeted assassination program. That statement at the forum by Leonard, who served from 2002 to 2007, was in line with what former White House Press Secretary Robert Gibbs told MSNBC’s last month. Then Gibbs said that his own vetting process had included that instruction that he was “not even to acknowledge the drone program.”

“[W]hen the principal architect of that program,” said Litt on March 14, “goes before Congress in order to be confirmed as a director of the Central Intelligence Agency, he then makes the observation that, ‘yeah, maybe it’s a good idea to debate these things in public.’”

But, said Leonard, Brennan’s call for transparency about the CIA’s drone came too late. Leonard said that when the government unleashes any and all violence upon an individual, the American public must be informed.

Our next snippet of footage comes in the Q-and-A, when an attorney rose to ask the national intelligence director’s own lawyer about the nature of alleged retroactive classification. This analyst cannot be sure of her client list, but the cases she mentions seems evocative of that of whistleblower Thomas Drake. Leonard has been altogether sympathetic to his plight.

The incidence of retroactive classification has for years heightened concerns among activists and whistleblowers that classification could be used for professional retribution — not, to wit, safeguarding the American people.

Executive Order 13526, from 2009, is intended to prohibit  overclassification, and the questioner references its matter. (Specifically, she alludes to Section 5.5(b)(2), which offers “sanctions” for overclassification.) What stood out in the hundreds of thousands of State Department cables leaked by Bradley Manning is not the career-ending content but rather the arbitrary level of secrecy present. Said Litt at a later point in the forum (see video below),  “My experience is that there’s very little conscious abuse of the classification process. What there is, is a set of incentives that lead people to apply the rules in a way that leans towards classification.”

The questioner said that her clients, “after their [books have] gone through pre-publication review,” had been told they stepped over the line with disclosures.

When another questioner complained that White House Office of Legal Counsel (OLC) had not been adequately transparent on the use of drones, against foreign nationals and potentially citizens alike, Robert Litt was dismissive.

There is a “long history of Congress,” said Litt, “claiming they’re not getting information from the executive branch.” Indeed at a March 6 Senate Judiciary Committee hearing, Sen. Dianne Feinstein (D-Ca.), also of Senate Select Intelligence, expressed misgivings that the Judiciary Committee could not see the executive branch’s legal rationale for the use of drones, abroad or potentially at home.

“[A]ny suggestion,” said Litt this month at the Brennan Center, “that the [House and Senate] Intelligence Committees did not understand the legal basis for the targeted killing program is wrong,” adding that they “were fully briefed on and fully informed of the reason” for drone use.

The legislative branch’s increased demands — climaxing with a day of filibuster by Kentucky Sen. Ran Paul (R) — and the executive branch’s recalcitrance, said Litt, amounts to a “creative tension,” adding, “No amount of reforms that we do will solve that problem.”