Some redactions in the document, they tell The BRAD BLOG, appear solely to protect government, not national security...
By Brad Friedman on 8/26/2013, 11:53am PT  

"The very word 'secrecy' is repugnant in a free and open society; and we are, as a people, inherently and historically opposed to secret societies, to secret oaths and secret proceedings," President John F. Kennedy declared to the American Newspaper Publishers Association at New York's Waldorf-Astoria in 1961.

"No official of my Administration," he continued, "whether his rank is high or low, civilian or military, should interpret my words here tonight as an excuse to censor the news, to stifle dissent, to cover up our mistakes or to withhold from the press and the public the facts they deserve to know."

But, that was then.

The U.S. government's legal requests for secret surveillance are, themselves, filed in secret at the secret Foreign Intelligence Surveillance Court (FISC), and the FISC's rulings on those secret requests are themselves a secret as well.

Last week, however, after more than a year of legal wrangling and lawsuits, the non-partisan Electronic Frontier Foundation (EFF) was finally successful in gaining the public release of one of those secret rulings, an October 2011 decision by the Court finding that the government had, on several occasions, offered the Court "a substantial misrepresentation regarding the scope of a major collection program ... buttressed by repeated inaccurate statements."

At the very same time, as they were about to be compelled by a court to release the decision EFF sought, the U.S. Director of National Intelligence James Clapper, "in the interest of increased transparency," released two other redacted court decisions as well. In all, they revealed the NSA's illegal and unconstitutional collection of the emails of tens of thousands U.S. citizens who had nothing to do with terrorism investigations. The documents were all posted on a new Tumblr website created, Clapper said in a statement posted to the site, "to provide the public with direct access to factual information related to the lawful foreign surveillance activities carried out by the Intelligence Community."

As expected, some sections of the October 2011 FISC decision were heavily redacted. Other parts, while redacted, were revelatory nonetheless about the nature of our government's secret surveillance programs. And still other portions seem to be redacted for no legitimate national security reason at all. As a number of national security journalists, FOIA advocates, security veterans and whistleblowers describe to The BRAD BLOG, the reason for some of the redactions appears to be little more than an attempt to keep the government from embarrassing itself --- or even from revealing evidence of its own crimes.

Here's one of the more disturbing revelations, from a footnote, in the previously secret October 2011 FISC decision...

Here's one of the more heavily redacted portions of the previously secret 85-page ruling that rejected a secret surveillance request by the government, after determining that the government had repeatedly misled the Court in its secret filings...

But here is one snippet about which we specifically requested comment from a number of national security journalists, FOIA advocates (including the EFF) and former national security agency veterans and whistleblowers. Note, just for now, the one sentence highlighted in yellow...

Keep that highlighted section in mind for a moment.

We've been covering, of late, some of the absurdity of the government's massive secrecy state, where just about anything and everything is declared to be classified on some level, and often for no particular, or at least apparent reason. See, for example, our KPFK/Pacifica Radio BradCast interview with EFF attorney Mark Rumold several weeks ago, discussing the advocacy group's lawsuit for the release of the classified FISC ruling --- the one cited above, finally released last week --- finding requests for various government surveillance programs to be illegal and/or unconstitutional.

Or, see our recent article, "United States of Fear and Redaction" detailing, among other things, journalist Jason Leopold's documentation of the government's sealed declaration from the Warden of the Guantanamo Bay prison explaining the reason for the policy of genital searches for detainees before and after meetings with their attorneys, despite a federal judge ordering them halted after finding the practice to be "religiously and culturally abhorrent." A Motion to Intervene in the case, filed by Leopold, resulted in the unsealing of certain portions of the Warden's declaration, while documents filed in support of the government's own appeal of the court's decision to end genital search policy resulted in the very same declaration being partially unsealed, but with often completely different --- and often, seemingly arbitrary --- redactions in that declassified version.

For example, in one version of the government's redacted declaration by the Warden, the word "frisk" was redacted from the sentence: "The frisk search that is conducted is to ensure there is nothing concealed between the clothing and the body." In the version of the very same document submitted in a separate legal filing by the government, the word "frisk" wasn't redacted at all.

More recently, in opposing Leopold's legal motion to unseal the declaration completely, he says the Guantanamo Warden submitted a second declaration to the court, explaining why the first declaration was classified and should not be completely unsealed. Of course, that new declaration, Leopold told us over the weekend, is also classified and sealed...and, in turn, Leopold has now filed a legal motion to have that declaration unsealed as well.

And so it goes.

'Bitter Mockery'

In the opening of his new paper [PDF] for the Harvard Civil Rights-Civil Liberties Law Review, government secrecy expert Stephen Aftergood cites President Obama's pledge, on his first full day in office, towards "creating an unprecedented level of openness in Government."

"Freedom of information advocates anticipated sharp reductions in official secrecy and substantial reforms in the classification system by which the government determines whether to withhold national security-related information from public disclosure," writes Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. "Soon, however, as idealized scenarios of openness went unrealized and familiar patterns of official secrecy persisted and grew, the President’s commitment came to inspire disappointment, then criticism, and finally bitter mockery."

Our government's massive overclassified secrecy state continues apace, and the absurd, often arbitrary, certainly subjective nature of the entire process is once again revealed in the above portion of the recently released, if redacted, October 2011 decision by the Foreign Intelligence Surveillance Court denying the certification of an NSA surveillance program.

We purposely chose what seemed to be a rather innocuous sentence from that release, the one highlighted in the snippet above reading merely: "[REDACTED WORD] previous certifications have been submitted by the government and approved by the Court pursuant to Section 702."

We sent that highlighted snippet along with the following two questions about it to about half a dozen different experts in various trades, each with experience in national security, classification and secrecy matters...

1) To your knowledge, and best estimation, could there be anything but a number behind that redacted first word of the highlighted sentence? If so, what else might be there?

2) If not, and if, in fact, that redacted word is indeed a number, as it would appear --- which could be anything, I suppose, from a single digit number to thousands --- are you able to offer any explanation other than the government attempting to protect itself (rather than concern about a security threat) with that particular redaction? In other words, if that sentence, before redaction, reads something like "2,789 (or even 5) previous certifications have been submitted by the government and approved by the Court pursuant to Section 702," how might that, in your wildest imagination, be some kind of a security threat to reveal?

Almost all of the experts concurred the redacted word was most likely a number.

"The deleted beginning of the sentence certainly seems to be a number," Aftergood, fresh off his Harvard Law Review speculated. "It's hard to see how it could be anything else."

"My best guess is that it's a number," concurred Mark Rumold, an attorney at the Electronic Frontier Foundation who worked on the case that led to the redacted release of the FISC document in question.

Leopold, who has been filing a flurry of Freedom of Information Act (FOIA) requests for documents concerning national security issues of late, also agreed the redacted word in the sentence is most likely a number, but was the only one of those we asked who offered a potential alternative.

The redacted word "could also be 'Our'," he said. "Often times, the government will redact 'I' 'we' 'us' as a way of not confirming that they are engaged in these activities."

All the others we queried agreed the redacted word was likely a number.

"You are probably right," answered William Binney, the decades-long, highly-placed former NSA official. Binney became a whistleblower in late 2001 after becoming concerned about the way the nation's surveillance apparatus --- which he initially helped build to combat the threat of the Soviet Union during the Cold War --- was being turned to other, less justifiable purposes, like the warrantless domestic surveillance of U.S. citizens.

He told The BRAD BLOG that if the sentence, as it appears, refers to the government's "business records collection", the program "certifications" referenced "are issued every quarter to each of the companies participating (includes Telcoms and internet service providers) since 2006. That number should be approximately 124."

"Of course it's impossible to know, but your guess that it's a number and that it's hard to understand why it's being redacted for 'security reasons' is the same as I would make," responded Coleen Rowley, a former Special Agent with the FBI who served for more than twenty years before retiring in 2004. In 2002, Rowley was named one of TIME magazine's Persons of the Year for her whistleblowing efforts revealing that her Bureau field office in Minneapolis had tried to warn the FBI's national office about one of the suspected 9/11 hijackers months before the attack took place. Those warnings were said to have either been ignored or lost amidst bureaucratic bungling by Washington.

'A Serious, Serious Problem'

If, in fact, the redacted word in question is the number of such certifications that have been issued to date, as all of the experts generally agreed, what possible national security reasons --- versus reasons meant merely to protect the government itself from embarrassment --- could one imagine for redacting that number, but not the rest of the sentence, in the long-sought after release of this FISC ruling?

Aftergood says that it is "hard to see a national security justification for redacting that number," but adds: "This is a recurring problem. From the government's perspective, almost all quantitative indicators of intelligence activity are sensitive --- budget figures, numbers of personnel, etc. --- even when the relation between the number and any sensitive fact is remote or nonexistent."

So, by revealing the number, the government's thinking seems to be, they would reveal the volume of certifications for this type of surveillance that has already been issued by the Court. Revealing the volume, in turn, would somehow give our "enemies" greater insight into the scope of the NSA's collection activities. That, the thinking seems to be, would somehow translate into the seemingly absurd concern that our "enemies" would say: "Oh, no! The NSA has gone to a secret court to receive permission to secretly surveil an unknown number of transactions 124 different times! ... Or 2,789 different times! ... Or 4 times! We better stop communicating via this type of channel, or we could get caught, now that we know they've requested permission 124 or 2,789 or 4 times over the last several years!"

Is that really the type of thinking we seem to be looking at here in the government's classification/redaction of such a seemingly nebulous figure?

"Yes," the EFF's Rumold told us via email, "I've seen them argue that before in other contexts. I.e., by revealing the number of times a certain authority was used, it would reveal the scope/frequency of government intelligence investigations." He added, "I'm not suggesting it's a claim I think has merit, but it's a claim they make."

"There is this old 'mosaic' theory," explains Rowley, "that bits of info, while not telling in their own right, can be pieced together to provide a 'mosaic' that would allow enemies or criminals to then learn important secrets. The 'mosaic theory' seems to have popped up during the Cold War when LeCarre type plots pitted super analyst Communists against the U.S., but no Mafia guy would have had the patience or the brains to deduce much from such bits and pieces. That's all I can come up with as to why they --- the Government --- redacts so much. Largely it's just because they can. And they are lazy. They know it's safe to black it out --- they can't get in trouble for withholding, only for releasing."

Binney offers a similar explanation, along with the theory that redactions of this type are not about any threat to national security but, rather, to the government itself: "I believe the reason it is redacted is to try to keep the extent of the orders and the program out of sight. That's not a security threat, it's just an embarrassment for the government and the FISA Court that approved them."

Marcy Wheeler of Emptywheel.net, which extensively covers matters of national security law, classification and disclosure, is similarly direct, telling The BRAD BLOG, bluntly: "I suspect they're hiding it to protect themselves. If there were just yearly certifications, then the number should be not far off 'three' (2008, 2009, 2010)...So if [there] were any but a number in that neighborhood it'd suggest they were submitting lots of fancy new ideas."

Journalist Leopold, who says he covers "NSA, CIA, FBI, all kinds of agencies," also finds this particular redaction absurd. "You always expect names to be redacted --- techniques, methods, operational security --- but, they made that claim just to justify keeping things secret."

Secrecy expert Aftergood declined to speculate on the government's motives in redacting that number, referring instead --- as he also did in the case of the seemingly bizarre and differing redactions in the two different releases of the Guantanamo Warden's declaration --- to the subjective nature of both classification and de-classification.

On the Guantanamo story, he had explained to Leopold that, "Depending on who does the redacting, you can often get a different result."

In this case, he told The BRAD BLOG: "Rather than trying to assess the classifier's motive or intent --- which would be a speculative exercise at best --- I think the important point is that classification actions are subjective choices made by the classifier. And because they are subjective, they may be biased or mistaken or based on transient circumstances that are no longer relevant. I think that overclassification of this sort is widespread, even if it is not malicious or willful."

It happens "a lot," Rumold says. "Over/inappropriate classification is a serious, serious problem."

'It's Safe to Black it Out'

While it may not necessarily be malicious, as Aftergood avers, it still appears to be, all too often, according to Binney, a matter of protecting the government from embarrassment, if not outright criminality. "From my experience," Binney says, "most of the redacting is done for reasons of embarrassment or to hide criminal activity. They do this kind of thing consistently."

That, however, as Binney notes, is not a legitimate reason for classification. Citing President Obama's December 29, 2009 Executive Order (13562) on "Classified National Security Information," the former NSA executive points out that the President "makes it clear that embarrassment is no reason to classify or hide anything." Indeed, Section 1.7 of that Order declares clearly: "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."

Rowley, whose observation is that government officials feel "it's safe to black it out --- they can't get in trouble for withholding, only for releasing," was the FBI Minneapolis Division's FOIA Officer for 13 years, overseeing declassification (and redaction) of documents released by her office. Her theory is supported by points from Obama's 2009 Executive Order, which offers a number of vague and sometimes seemingly contradictory directives on classification matters.

Indeed, while the Order specifies in its first section that "If there is significant doubt about the need to classify information, it shall not be classified," later in the same section it is warned that "sanctions...may be brought against an individual who fails to classify information properly."

Such conflicting directives cause a natural tension which may, as Rowley notes, lead classifiers to play it safe, and err on the side of secrecy instead of transparency.

Moreover, as Aftergood details in his paper for the Harvard Law Review the President's definition of "damage to the national security" in the order is both "broad and vague."

After allowing that Obama has made "substantial breakthroughs in openness on some vital topics --- such as intelligence spending and nuclear weapons policy," Aftergood writes that the Executive Order's "definitions grant all but unlimited discretion to classification officials. Whatever government information classifiers 'reasonably' expect could cause damage (or harm) to the national defense or foreign relations if disclosed without authorization is eligible for classification. While they must be 'able' to describe the anticipated damage, they need not do so in fact." He observes that, in his own similar directives, President Richard Nixon, of all people, "actually provided concrete examples of the sort of potential damage resulting from disclosure that would justify" the various levels of classification of information to be withheld. Obama, on the other hand, in his directive, fails to do so, leaving much of the criteria for classification up to the subjective discretion --- and differing opinions --- of whichever government official may be doing the classification or declassification.

Aftergood's essay cites a 2008 study by the Office of the Director of National Intelligence [PDF], which acknowledges that "The definitions of 'national security' and what constitutes 'intelligence' --- and thus what must be classified --- are unclear."

"The problem," writes Aftergood, "is not that these terms are meaningless, but that they have accumulated a plethora of highly subjective meanings." The result, he observes, means that, even after more than four years since Obama's once-celebrated promise of a more open government, critics charge "that the volume of secret information and the number of classification actions remained dysfunctionally high."

Indeed, he notes, "the number of official classification actions each year can number in the hundreds of thousands, or even the millions." According to the Information Security Oversight Office's 2011 annual report [PDF] to the President, "there were over 127,000 'original' classification decisions --- in which information was classified for the first time --- in fiscal year 2011 and over 92,000,000 'derivative' classification decisions --- in which previously classified information was incorporated in a new record."

'9/11 Changed Everything'

"Excessive secrecy has significant consequences for the national interest when, as a result, policymakers are not fully informed, government is not held accountable for its actions, and the public cannot engage in informed debate," notes an all-but-forgotten 1997 report by a U.S. Senate Commission on Protecting and Reducing Government Secrecy. That special Commission's Chairman, Sen. Daniel Patrick Moynihan declared in the report's foreword [PDF]: "It is time...to assert certain American fundamentals, foremost of which is the right to know what government is doing, and the corresponding ability to judge its performance."

That, of course, was before 9/11. Since then, Aftergood writes in his June 2013 Harvard Law Review piece, "Congress has often been strangely quiescent on secrecy-related national security matters. Despite the intense controversies surrounding the post-9/11 'war on terror,' there has been no systematic attempt by Congress to probe publicly and evaluate the government’s conduct."

Some of that, it seems, may change on the heels of the unauthorized release of a trove of classified documents by former NSA contractor Edward Snowden. But real action to transform a massive national security/secrecy state, described by Aftergood as "certainly not sustainable over the long term," remains elusive for the time being.

As to the redactions in the recently released FISA Court rulings, including the seemingly innocuous redaction we highlighted near the top of this article, Rumold, the EFF attorney, says the organization will attempt to force the government to unseal still more of that FISC ruling, or at least offer explanations as to why the currently redacted portions are being withheld from the public.

"Fortunately, many of the documents the government released are still subject to litigation," Rumold optimistically told us. "So we'll eventually find out their purported justification for withholding the information. And, even better, we'll get a chance to contest that justification in court," he says. "The government will have to offer a justification for each redaction in the opinion. They might try to keep the justification generic, but they will have to provide their rationale. If they can't justify it to the court's satisfaction, they will have to release the information."

"It was much easier under [then Attorney General Janet] Reno's Rule, when we were supposed to have a real reason for withholding," Rowley tells The BRAD BLOG. She says George W. Bush's first Attorney General John Ashcroft "reversed Reno's presumption and instructed [classifiers] to withhold, if in doubt, and promised the federal government lawyers would defend resulting lawsuits based on redacting or withholding."

She explains that during her 13 year tenure overseeing FOIA responses on behalf of the FBI in Minneapolis from 1990 to April of 2003, "at least on the agency division level, it worked pretty well and we rarely got challenged in lawsuits, etc. But after 9/11, the DC hierarchy took greater charge of FOIA, taking away the division's discretion."

While acknowledging that, even before 9/11, the most sensitive national security disclosures "would have been handled or at least overseen by the FBIHQ," Rowley adds: "my opinion is, as with everything else, '9/11 changed everything'. Even FOIA."

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