Hiding Facts to Thwart Democracy

Over-classification of U.S. government information is a grave threat to the Republic, giving politicians and bureaucrats the power to hide facts that aren’t really sensitive but are vital to a meaningful public debate, such as the IG report on President Bush’s surveillance program, says ex-NSA analyst Kirk Wiebe.

By Kirk Wiebe

A few weeks ago, as the result of a Freedom of Information Act request by the New York Times, we were able to view a redacted version of the so-called “Five IG’s” report, formally entitled “Report on the President’s Surveillance Program” or PSP, written by the Inspectors General of the Defense Department, the National Security Agency, the Justice Department, the Central Intelligence Agency, and the Office of the Director of National Intelligence.

What was most interesting about the portions of the report that were released was how badly over-classified much of the report originally was. The first paragraph of the introduction to Volume 1, dated July 10, 2009, was rather innocuous until you notice the “scratch out” of the original classification, (TS//SI//OC//NF).

President George W. Bush announcing the launching of the Iraq invasion on March 19, 2003. (White House photo)

As someone who has worked extensively with classified information, converting it from raw source materials to forms appropriate for analysis, as well as for publication to a wide array of intelligence consumers throughout the U.S. Government, I can tell you without hesitation that it is highly unusual to see an entire paragraph of an originator-controlled (OC) document rendered completely unclassified after being initially classified Top Secret.

In fact, I have never seen such a gross change in classification in more than 34 years of intelligence work. First, the terminology making up the classification of the paragraph in question:

TS means Top Secret (information that if released to an enemy would result in grave damage to the security of the United States); SI for Special Intelligence (intelligence derived from signals); OC for Originator Controlled (no changes to content or classification can be made without the permission of those originating/publishing the document); NF for NOFORN (no foreign nationals not even partners as in the “Five Eyes” construct are permitted to see information).

Allow me to emphasize that such over-classification is both extreme and dangerous because 1) TS is supposed to be used only to notify the reader that the associated information is of the kind that would most harm the United States if disclosed, and 2) it undermines the security of true secrets by marking everything under the sun “TOP SECRET.” It also enables the government to prosecute unjustly those accused of possessing or mishandling “classified information.”

Yet, this formerly TS/SI/OC/NF paragraph reads as follows: “In response to the terrorist attacks of 11 September 2001, on 4 October 2001, President George W. Bush issued a Top Secret authorization to the Secretary of Defense directing that the signals intelligence (SIGINT) capabilities of the National Security Agency (NSA) be used to detect and prevent further attacks in the United States. The Presidential Authorization stated that an extraordinary emergency existed permitting the use of electronic surveillance within the United States for counterterrorism purposes, without a court order, under certain circumstances. For more than five years, the Presidential Authorization was renewed at 30- to 60-day intervals to authorize the highly classified NSA surveillance program, which is referred to throughout this report as the President’s Surveillance Program (PSP).”

While the most important fact coming out of the extensive report (over 700 pages in length) probably is the confirmation that the NSA was collecting not just metadata about Americans and foreigners but also content beginning in October 2001 I submit that the pervasive and egregious over-classification of whole paragraphs within the Five IG’s document is far more troubling and carries with it potentially wide ramifications affecting legal cases around the country brought by the U.S. Government that involve the possession or mishandling of “classified information”.

In just the first 50 pages of the report, there are 29 paragraphs that are declassified that were originally classified Top Secret, and 26 paragraphs that are declassified that were originally classified Secret (serious damage to U.S. security if in the hands of an enemy). Three more examples are:

“(TS//SI//NF) When NSA personnel identified erroneous metadata collection, usually caused by technical problems or inappropriate application of the authorization, they were directed to report the violation or incident through appropriate channels and to delete the collection from all NSA databases. NSA reported three such violations early in the program and took measures to correct them.”

The next section refers to information that President George W. Bush’s Attorney General John Ashcroft provided to U.S. District Judge Royce Lamberth, then presiding judge of the Foreign Intelligence Surveillance Court, responsible for issuing secret approval for electronic spying inside the United States.

“ (TS//SI//OC/NF)  Ashcroft provided Lamberth a brief summary of the President’s decision to create the PSP, and Ashcroft stated that he had determined, based upon the advice of John Yoo, an attorney in DoJ’s Office of Legal Counsel (OCL), that the President’s actions were lawful under the Constitution. Ashcroft also emphasized to Lamberth that the FISC was not being asked to approve the program. Following Ashcroft’s summary, Hayden described for Lamberth how the program functioned operationally, Yoo discussed legal aspects of the program, and Baker proposed procedures for handling international terrorism FISA applications that contained PSP-derived information. For the next four months, until the end of his term in May 2002, Lamberth was the only FISC judge read into the PSP.”

“ (TS//SI//OC/NF)  Judge Colleen Kollar-Kotelly succeeded Lamberth as the FISC Presiding Judge and was briefed on the PSP on 17 May 2002. The briefing was similar in form and substance to that provided to Lamberth. In response to several questions from Kollar-Kotelly about the scope of the President’s authority to conduct warrantless surveillance, DoJ prepared a letter to Kollar-Kotelly, signed by Yoo, that, according to Kollar-Kotelly, ‘set out a broad overview of the legal authority for conducting [the PSP], but did not analyze the specifics of the [PSP] program.’ The letter, which Kollar-Kotelly reviewed at the White House but was not permitted to retain, essentially replicated Yoo’s 2 November 2001 memorandum regarding the legality of the PSP. Kollar-Kotelly was the only sitting FISC judge read into the PSP until January 2006, when the other FISC judges were read in.”

Such a pervasive corruption of the classification process runs counter to the expectation that the Government has an obligation to carry out its responsibilities with a reasonable measure of propriety; in other words, an expectation that it must perform in its quasi-contractual obligations to serve the American people.

Clearly the prevalence of over-classification in a document issued by five Inspector’s General from within the hallowed halls of the most secret organizations in the Government is a sign not of occasional error, but of widespread incompetence, even malfeasance, in the Government’s ability to properly classify a document containing both classified and unclassified information as defined by Executive Order 13526, the controlling authority for government classified information.

Many of these examples suggest classification not because the information is truly sensitive to national security, but because it is potentially politically sensitive or embarrassing if discovered by the American public at large.

One can only wonder what the consequences of such willful and reckless over-classification has been in the prosecutions, both past and present, of defendants left to plead their sentences in cases where the evidence is deemed classified and the courts have not demanded that the Government defend its claims that information should indeed be classified.

Kirk Wiebe is a retired National Security Agency senior analyst and recipient of that Agency’s second highest award the Meritorious Civilian Service Award. As an employee of NSA, he has sworn to uphold the U.S. Constitution against all enemies, foreign and domestic. He has worked with colleagues Bill Binney, Ed Loomis, Tom Drake and Diane Roark to oppose NSA corruption and over-surveillance since 2001.