Overclassification: The First Step is Admitting You Have a Problem

The Inspector General for the Office of the Direct of National Intelligence (DNI) has released its annual report on over-classification. Like most reports by government agencies on this subject, it acknowledges certain, minor bureaucratic problems with the way the classification system runs. But the Inspector General found “no instances” of violations of Section 1.7 of the Executive Order governing classification, which states:

In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:

(1)  conceal violations of law, inefficiency, or administrative error;

(2)  prevent embarrassment to a person, organization, or agency;

(3)  restrain competition; or

(4)  prevent or delay the release of information that does not require protection in the interest of the national security.

Of course, the intelligence community conceals illegal and embarrassing information all the time. DNI’s position, though, is that this happens only by coincidence.

For example, on December 9, 2014, the Senate intelligence committee released the executive summary of its torture report—500 pages worth of embarrassing details about CIA “violation of law, inefficiency [and] administrative error.” A few days later, DNI General Counsel Robert Litt insisted that all of the previously-secret information in the torture report was properly classified, and was declassified only as a matter of executive discretion. “There’s a difference between classifying something for the purpose of covering up illegal activity and classifying something for legitimate national security reasons that happens to involve illegal activity,” Litt said. He claimed never to have witnessed the former.

The claim that the entire Senate torture report was properly classified is not only implausible. It is also harmful, even today.

Even after the release of the Senate report’s executive summary, many crucial facts and documents about the CIA torture program remain hidden: the full, over-6000 page version of the torture report; former CIA detainees’ memories and descriptions of their own treatment in CIA custody; the “Panetta Review,” an internal CIA document in which the agency admits the extent to which it provide false information about torture’s successes; eleven CIA Inspector Generals’ reports into torture and renditionevery record from the Department of Justice’s failed criminal investigations into the program; and virtually all information about the CIA’s Office of Medical services.

OpenTheGovernment.org has asked that the Executive Branch apply the same standards of classification of this information as to the torture report’s executive summary.

It’s a modest request, but a significant one. Until the Senate report was released, the CIA had successfully argued that its “enhanced interrogation techniques” had been declassified “only in the abstract”. The details of every individual’s treatment in CIA custody remained secret, and the CIA claimed that release of that information would cause “exceptionally grave” harm to national security. That claim, more than any other, was the foundation for the wall of secrecy that still surrounds the torture program.

If the CIA had censored the details of individual detainee’s treatment from the Senate report, almost the entire document would have been blacked out—but the Senate made clear it would not accept this. The real names and the fake names of the CIA officers who participated in torture are redacted; the prisoners’ names are not. The locations of CIA prisons are redacted; the horrifying details of what happened there are not.

If the same standard were applied to full, 6000-page Senate torture report, we would learn many stories omitted from the Executive Summary. If it were applied to documents from the CIA inspector general’s and Justice Department’s investigations, we might finally learn the details of the CIA’s role in the homicides of Manadel al-Jamadi in Iraq and Gul Rahman Afghanistan—and why no one was ever held accountable for those deaths. If it were applied to the Guantanamo military commissions, the CIA and the prosecution would have to abandon their argument that the defendants’ memories of their own torture are classified. The courtroom censorship button could be switched off, and defense could finally proceed with their factual investigation of the case.

But a recent court filing in the September 11 military commissions case shows the prosecution and CIA attempting to preserve as much of the existing secrecy regime as the judge will allow. The government’s position is that any information about the defendants’ treatment in CIA custody

that is not specifically set forth within the four corners of the Executive Summary remains classified and must continue to be treated as classified until such time as further classification guidance is provided by the United States.

The filing gives no indication of when the United States intends to provide further classification guidance—if ever.

There is no logical reason why the graphic details from the Senate report should be released, and all other details of individuals’ torture in CIA custody remain hidden. But the Executive Branch may not need to provide a logical reason, particularly if judges accept that release of the information in the Senate report was purely a matter of executive discretion. As OpenTheGovernment.org’s National Security Fellow Katherine Hawkins wrote in the Guardian,

In theory, Obama’s December 2009 executive order on national security classification should prevent the CIA from using secrecy to place itself beyond the rule of law, since the order specifically forbids classifying information to “conceal violations of law”. In practice, though, the prohibition is virtually never enforced. The Obama administration – like the Bush administration before it – takes the position that the CIA’s criminal actions can be legitimately classified if they are “intelligence sources and methods”. And neither Congress, nor the president, nor the courts have imposed any legal limit on what counts as an intelligence source or method. In practice, the phrase has come to mean “anything the intelligence community doesn’t want you to know. Congress needs to write a legal definition of “intelligence sources and methods” that imposes real limits, and makes clear that it excludes torture and other crimes.

The intelligence community’s claim that it is lawful and proper to censor evidence of torture should alarm us. So should the fact that the intelligence community’s inspector general—the official charged with uncovering evidence of waste, fraud and abuse—cannot find a single example of wrongful classification.

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