Last week, a federal judge pointed out the obvious to the CIA: release-to-one is release-to-all, no matter how the agency’s lawyers spin it. The CIA had emailed classified information to certain journalists. When another journalist sought copies of those emails, the CIA handed him fully-redacted versions. Obviously, they weren’t redacted when they were sent to select members of the public. Why would the CIA feel the need to redact the information now when another member of the public asked for it?
The CIA argued it had every right to hand out classified info to whoever it saw fit and then turn around and refuse to hand it over when an FOIA requester requested it. It said the classified info it gave to journalists was never published by those journalists, so it was technically not a public release. The judge shot back, stating that the CIA had effectively waived its right to withhold this information by handing it out to journalists in the first place.
CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private. There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including “trusted reporters,” for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had? The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose). In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else.
The FAS Secrecy News blog brings us the news that the CIA has already issued a response [PDF] containing new arguments about why it should be able to engage in selective disclosure of classified info to members of the public.
CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from “unauthorized” disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said. “The CIA properly exercised its broad discretion to provide certain limited information to the three reporters.”
“The Court’s supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken,” the CIA response stated. “The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain. For these reasons, the limited disclosures here did not effect any waiver of FOIA’s exemptions.”
So, technically, it’s not a new argument, just a reiteration of the CIA’s stance on classification waivers it would rather believe aren’t waivers of classification. In essence, the CIA would like to be able to selectively leak classified information while retaining the privilege of denying every other member of the public access to these leaks. If the selected journalists choose to publish classified info handed to them by the CIA, only then does it enter the public domain, according to the the CIA. Otherwise, the CIA will decide what’s classified and withholdable, not judges or logic or common sense.
Apparently, this is standard operating procedure for the agency. MuckRock’s stash of CIA documents contains official instructions for CIA leaks to the press, including a checklist for post-leak damage control.
The form for reporting the leaks… was fairly comprehensive. In addition to any supplemental materials, which were be attached to the leak reports, the form was two pages long. In addition to requesting the time, date, publication author and how the sourcing was attributed, the form requested notes about the subject matter, the geography associated with it and the dissemination of the information. After asking what, if anything, the information had compromised, the form asked about the accuracy of the information.
The form also requested information about whether the leak was authorized or not, and who had authorized it. Tellingly, it requested information about which government organizations were criticized in the leak, but didn’t feel the need to ask who or what had been praised.
The tradition — started during the Nixon administration in response to his call to root out leakers — continues to this day. The CIA will make snap decisions on declassification, hand out info to reporters it feels it can trust, and possibly report the leaks to intelligence oversight. It happened often enough a computerized system was built to track the agency’s official leaks. Nearly fifty years later, the CIA’s official leak program is being challenged in court, and the CIA wants everything to be the way it was during the glory days of the Nixon presidency.
The CIA’s hypocritical arguments are symptomatic of a hypocritical system. The intelligence community hates leakers, unless it’s the agencies themselves doing the leaking. And it definitely doesn’t trust journalists… unless it needs them to help control the narrative. The judge in this case is punching holes in government tradition. Hopefully, this will end with the CIA handing over the info it already handed over to other people, free and clear of redactions.
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