[lg policy] A Closed-Mouth Policy Even on Open Secrets

Wed Oct 5 15:06:21 UTC 2011

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

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.”

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

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