[Infowarrior] - A Closed-Mouth Policy Even on Open Secrets

[Richard Forno]

October 4, 2011
A Closed-Mouth Policy Even on Open Secrets

By SCOTT SHANE

http://www.nytimes.com/2011/10/05/us/politics/awlaki-killing-is-awash-in-open-secrets.html?_r=1&pagewanted=print

WASHINGTON — Speaking hours after the world learned that a C.I.A. drone strike had killed Anwar al-Awlaki in Yemen, President Obama could still not say the words “drone” or “C.I.A.”

That’s classified.

Instead, in an appearance at a Virginia military base just before midday Friday, the president said that Mr. Awlaki, the American cleric who had joined Al Qaeda’s branch in Yemen, “was killed” and that this “significant milestone” was “a tribute to our intelligence community.”

The president’s careful language was the latest reflection of a growing phenomenon: information that is public but classified.

The older and larger drone program in Pakistan, for instance, is a centerpiece of American foreign policy, discussed daily in the news media — but it cannot be mentioned at a public Congressional hearing. The State Department cables published by WikiLeaks can be found on the Web with a few mouse clicks and have affected relations with dozens of countries — but American officials cannot publicly discuss them.

Underlying these paradoxes is a problem that government officials, notably including Mr. Obama, have acknowledged and complained of for years: the gross overclassification of information.

The security agencies have become a mammoth secrets factory, staffed today by 4.2 million people who hold security clearances — a total disclosed for the first time last month, and far higher than even the biggest previous estimates. Their incentives are so lopsided in favor of secrecy that a new report proposes a surprising remedy: cash prizes for government workers who challenge improper classification.

The secrecy compulsion often merely makes the government look silly, as when obvious facts were excised from recent memoirs by former intelligence officers. But it can also hinder public debate of some of government’s most hotly contested actions.

Long before Friday’s drone strike, officials say, lawyers at the Central Intelligence Agency, the Justice Department and the White House painstakingly considered the legal justification for what amounted to the execution of an American citizen without trial. But even since the strike, officials have been willing to give only a brief summary of the  government’s reasoning, refusing to make public the classified written opinion of the Justice Department’s Office of Legal Counsel, the authoritative arbiter of the law.

Steven Aftergood of the Federation of American Scientists, who has tracked government classification policies for two decades, said such secrecy about a disputed policy is “a kind of self-inflicted autism that cuts decision makers off from the input they need, both from inside the government and outside.” After last week’s strike, he added, “any justification for withholding the O.L.C. memo went away.”

The same closed-mouth approach has long applied to the drone campaign in Pakistan, which is old news but remains a top-secret covert action program. In June, at David H. Petraeus’s Senate confirmation hearing to become C.I.A. director, Senator Roy D. Blunt, Republican of Missouri, told Mr. Petraeus, the retiring Army general: “I want to talk a little bit about drones for a minute and the use of drones.”

There was a murmur of concern; C.I.A drones, though common knowledge, are unmentionable by government officials in public. Mr. Petraeus deftly dodged the issue by speaking of the military’s drones in Afghanistan, whose existence is not classified.

Administration officials said the drones are an especially delicate subject today because they are entangled with the United States’ complex relations with the governments of Pakistan and Yemen. But the same cannot be said of the Justice Department’s decade-old legal opinion justifying the National Security Agency’s program of wiretapping without warrants.

Matthew M. Aid, an intelligence historian, asked for that opinion two years ago under the Freedom of Information Act. In August, he finally got a few sentences of the 21-page opinion, written by John C. Yoo of the Bush Justice Department. The rest was blanked out and remains secret.

Nor is the secrecy limited to counterterrorism. Jeffrey Richelson, an author of books on intelligence, asked the C.I.A. last year for any reports by its Center on Climate Change and National Security, which had drawn criticism from Republicans in Congress. The agency said last month that all such material “is currently and properly classified and must be denied in its entirety.”

In a report on overclassification to be released on Wednesday, the Brennan Center for Justice at New York University’s law school concludes that unnecessary classification has jeopardized national security by hindering information sharing inside the government, and corroded democratic government by stifling debate.

The report finds that the thousands of officials who classify information err on the side of secrecy, to play it safe or to avoid public scrutiny of policies. Among the remedies the report proposes, in addition to $50 or $100 prizes for successfully challenging a secrecy ruling, is requiring officials to explain in writing why they are classifying a document and asking agency inspectors general to perform spot audits and punish improper classification.

The Obama administration’s record on transparency is mixed; it has set a record for prosecuting leaks of classified information to the news media but has also moved to reverse the tide of secrets. In December 2009, Mr. Obama ordered agencies to update their rules to avoid overclassification, and Mr. Aftergood said there were glimmers of progress.

For instance, he said, the Defense Department has canceled some 82 outdated “classification guides,” written instructions on what should be secret. That turns out to be only 4 percent of the department’s classification guides, he said, but the review is not over.

“It’s movement,” Mr. Aftergood said. “Instead of the perennial growth of the classification system, it’s shrinkage. It’s a start.”