NSA Says Secrets It Leaked To The Press Are Too Secret To Be Disclosed Publicly

from the sorry,-only-anonymous-officials-are-allowed-to-cause-exceptionally-grave-damage dept

Steven Aftergood of FAS Secrecy News went searching for an answer to an almost-unanswerable conundrum. And he got the most nonanswer-like answer imaginable.



As we all know, there are two kinds of leaks: the one the government approves of, utilizing anonymous officials, and everything else. Aftergood wanted to know more about these authorized leaks, in which classified information is handed over to journalists, etc. in response to queries, usually with several stipulations attached. It happens so often there's even a provision in the Intelligence Authorization Act, which gives the NSA and others the funds and permission to keep doing what they're doing.

In the Intelligence Authorization Act for FY 2013 (sec. 504), Congress directed that “In the event of an authorized disclosure of national intelligence” to the media, the government official responsible for authorizing the disclosure shall notify Congress in a timely fashion whenever the intelligence disclosed is classified (or declassified for the purpose of the disclosure).



The purpose of that requirement was to ensure that the congressional intelligence committees are made aware of authorized disclosures to the press “so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks’,” according to the Senate report on the FY2013 intelligence bill.

The notion of an authorized disclosure of classified information is close to being a contradiction in terms. If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified? And yet, it seems that there is such a thing.

“The document responsive to your request has been reviewed by this Agency as required by the FOIA and has been found to be currently and properly classified in accordance with Executive Order 13526,” according to an October 2 letter signed by retiring NSA FOIA chief Pamela N. Phillips. “The document is classified because its disclosure could reasonably be expected to cause exceptionally grave damage to the national security.”

One of the biggest open secrets in Washington is that, despite officialdom’s intensive efforts to demonize whistleblowers like former NSA analyst Edward Snowden, the vast majority of disclosures of secret information are not “leaks” but “pleaks” — a term Columbia Law Professor David E. Pozen coined to describe something that is more like an official “plant” than a “leak.”



George W. Bush and Dick Cheney were particularly adept at selectively disclosing secret intelligence findings that served their agenda – even while aggressively asserting the need to keep secret the information that would damage them.

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There's a report out there that details all of the authorized disclosures of classified information to press members who are decidedlycleared to receive classified documents. This authorized release of classified document generates it own oxymoron.Knowing that a.) this happens and b.) a report is generated when it occurs, Aftergood requested a copy of these authorized disclosure reports. The answer he received defies logic in only the way a secretive bureaucracy can . [pdf]And yet, the government -- when it serves its interests -- will "cause exceptionally grave damage to national security" by handing classified information over to press members willing to carry its narrative water We saw evidence of this most recently when the government tried to head off The Intercept's publication of leaked terrorist watchlist documents by leaking its own version to the Associated Press shortly before the Intercept piece went live.It's ridiculous for the government to claim documents leaked from unauthorized sources are somehow still secret even though the public has access to them. For it to make the same claim for documents it selectively chose to "leak" is preposterous and highly hypocritical. Aftergood and FAS have appealed this decision , stating, “It is well established that information, including classified information, that has been publicly disclosed on an authorized basis loses its exemption from disclosure under FOIA."Whether or not this will have any effect on the NSA remains to be seen. But so far, the only proven method to obtaining documents from the highly-secretive agency seems to result in Russian exile.

Filed Under: authorized leaks, classified, foia, leaks, nsa