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Fw: Secrecy News — 07/28/14

Secrecy News — 07/28/14
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Steven Aftergood
Jul 28 (4 days ago)

to me
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 49
July 28, 2014

Secrecy News Blog: http://fas.org/blogs/secrecy/

In preparing its recent report on the Section 702 surveillance program,
the Privacy and Civil Liberties Oversight Board (PCLOB) demonstrated an
unusual mode of declassification, in which one executive branch agency asks
another agency to declassify information.

In this case, the process was remarkably productive, and it may offer a
precedent for future declassification efforts.

“During the process of preparing this report we sought and obtained
declassification of facts about this still highly classified [Section 702]
program in order to allow us to put in context how the program operates and
clarify some public misconceptions,” said PCLOB Chairman David Medine at a
July 2 public meeting.

“As a result, over one hundred new facts were declassified by the
government to provide needed context for the program’s operation,” he said.

In what the PCLOB staff termed a “lateral declassification” model, it was
an executive branch agency (i.e., the PCLOB itself) — rather than Congress
or members of the public — that pressed another government agency (ODNI,
NSA, CIA, FBI or Justice) to declassify specific information.

Such an interagency request for declassification differs from the
“referrals” that agencies routinely direct to one another. In those cases,
the receiving agency is simply asked to review records to identify its own
classified information (or “equities”) and then to advise the originating
agency what must be withheld and what may be disclosed.

Here, the PCLOB didn’t merely ask agencies to screen for classified
information under existing classification standards. It urged them to
actually change those standards. And in more than 100 specific cases, the
agencies did so.

Most of the declassified facts in the PCLOB Section 702 report are not
specifically flagged as having been declassified at the Board’s request,
and they may therefore be easily overlooked. A partial compilation of such
newly declassified facts, prepared by a participant in the process and
obtained by Secrecy News, is available here:

Click to access pclob702-declass.pdf

Several features appear to have contributed to the efficacy of the lateral
declassification approach.

For one thing, the requesting agency (the PCLOB) already possessed the
requested information in classified form. So it knew exactly what it was
asking for, and why it was asking for it to be declassified.

And then the fact that the declassification requests originated within the
executive branch itself (the PCLOB is an independent executive branch
agency) made it harder for the recipient agencies to ignore the request and
easier for them to fulfill it.


By contrast, public requests through the Freedom of Information Act often
seem to decline into an adversarial contest, in which the agency adopts a
defensive posture and offers only minimal, grudging compliance with
disclosure requirements. (At CIA, one gets the impression that asking for
a record to be declassified can make it less likely to be disclosed.)
Requests from Congress also inevitably have a political overlay, and may be
seen to serve an agenda that does not coincide with the Administration’s

But as part of the Administration, the PCLOB’s many declassification
requests did not trigger the sort of immune response that any outside
request would have done.

Of course, the PCLOB’s work, including its declassification proposals, did
not take place in a vacuum.

“A lot of political wind was at our back,” said Peter Winn, acting general
counsel for the Board.

Not only had related classified details entered the public domain through
the Snowden disclosures, but calls for declassification of more information
regarding current surveillance programs had been explicitly endorsed by the
Director of National Intelligence and other senior officials.

Because of these competing factors, the role played by the Board’s
“lateral declassification” approach cannot be precisely delineated or
clearly distinguished from them.

But its apparent effectiveness is consistent with the productive
declassification work performed by another executive branch body, the
Interagency Security Classification Appeals Panel (ISCAP), which has
declassified information in a large majority of the mandatory
declassification review appeals presented to it.
Perhaps most important, the Board’s experience with declassification in
the Section 702 report may serve as a precedent for similar initiatives in
the future.

“For us, it’s a model,” said Sharon Bradford Franklin, executive director
of the PCLOB.

She noted that more than 90% of the Board’s requests for declassification
had been granted, and that they preceded completion of the Board’s report.
(That is, the declassification actions were not predicated on any agency’s
review of the Board’s conclusions or recommendations.)

Enough information about the 702 program was declassified that a
classified annex — which had earlier been assumed to be necessary —
turned out to be unnecessary, Ms. Franklin said.

She also credited the intelligence agencies for their diligent engagement
and cooperation in the declassification process, as did the published PCLOB

“In the preparation of this Report, the Board worked with the Intelligence
Community to seek further declassification of information related to the
Section 702 program,” the report noted (at p. 3).

Click to access pclob-702.pdf

“Specifically, the Board requested declassification of additional facts
for use in this Report. Consistent with the Board’s goal of seeking greater
transparency where appropriate, the request for declassification of
additional facts to be used in this Report was made in order to provide
further clarity and education to the public about the Section 702 program.”

“The Intelligence Community carefully considered the Board’s requests and
has engaged in a productive dialogue with PCLOB staff. The Board greatly
appreciates the diligent efforts of the Intelligence Community to work
through the declassification process, and as a result of the process, many
facts that were previously classified are now available to the public.”

The final PCLOB report on the Section 702 program included several
recommendations concerning transparency, including proposals for further
specific declassification actions. Those proposals remain pending.

New or newly updated publications from the Congressional Research Service
that Congress has withheld from online public distribution include the

Free Exercise of Religion by Closely Held Corporations: Implications of
Burwell v. Hobby Lobby Stores, Inc., July 23, 2014:

Click to access R43654.pdf

What Is the Farm Bill?, July 23, 2014:


Deploying 5G (Fifth Generation) Wireless Technology: Is the United States
on Track?, CRS Insights, July 23, 2014:

Click to access IN10110.pdf

Federal Student Loan Forgiveness and Loan Repayment Programs, July 22,

Click to access R43571.pdf

State CO2 Emission Rate Goals in EPA’s Proposed Rule for Existing Power
Plants, July 21, 2014:

Click to access R43652.pdf

Measuring the Loss of Manufacturing Jobs, CRS Insights, July 21, 2014:

Click to access IN10109.pdf

Shipping U.S. Crude Oil by Water: Vessel Flag Requirements and Safety
Issues, July 21, 2014:

Click to access R43653.pdf

Mountaintop Mining: Background on Current Controversies, July 21, 2014:


Defense Surplus Equipment Disposal: Background Information, July 22, 2014:


Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

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