NSA Claims Notifications to Congress About Authorized Leaks of Intelligence Are ‘Top Secret’

It is possible Brennan, as national counterterrorism adviser to Obama, was one of the officials disclosing information.

Whether the White House or any agency in the executive branch has made “authorized disclosures” of “national intelligence” and reported these disclosures to Congress is considered top secret information, according to the National Security Agency (NSA).

As part of the 2013 Intelligence Authorization Act, President Barack Obama signed into law a provision requiring that Congress be notified when executive branch officials plan to make “authorized disclosures” to the press.

The intention of the provision was, according to the Senate Select Committee on Intelligence [PDF], “to ensure that the intelligence committees are made aware of authorized disclosures of national intelligence or intelligence related to national security that are made to media personnel or likely to appear in the press, so that among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks.'”

Secrecy News submitted a Freedom of Information Act (FOIA) request on March 10, 2014, for “a copy of any notifications to Congress transmitted in the past 12 months concerning authorized public disclosures of intelligence information.”

The NSA denied Secrecy News’ request on October 2. A letter indicated there is a document with such information but it is classified “top secret” because “its disclosure could reasonably be expected to cause exceptionally grave damage to the national security.”

Consider that for a moment: A document indicating what “intelligence information” was authorized for release is “top secret.” The intelligence information disclosed is not “top secret.” It has been authorized for publication. Rather, according to the NSA, the mere fact that this information was authorized for disclosure is a state secret of the highest order.

“This Agency is authorized by various statutes to protect certain information concerning its activities. We have determined that such information exists in this document,” the NSA claimed.

What “activity” could be “top secret”? The activity of notifying Congress about “authorized disclosures”? The act of an intelligence agency communicating with “media personnel” and deciding to disclose classified information to convince editors to report a story a certain way? Or the act of an intelligence agency contacting “media personnel” to offer up classified information for release (i.e. giving a media organization an “exclusive”)?

All those acts could have sensitive implications and result in public criticism of the NSA, but none of those acts could reasonably be considered to cause “exceptionally grave damage” to the US if they became known. ISIS wouldn’t gain some upper hand by suddenly knowing what information in the New York Times was an “authorized disclosure” and what was a “leak.”

Naturally, Secrecy News appealed [PDF] the denial:

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.

Thus, the D.C. Circuit instructs that “when information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.” Fitzgibbon v. CIA, 911 F.2d at 765.

Since the requested document addresses “authorized public disclosures,” the substance of those authorized disclosures may no longer be withheld.

It is important to recognize that this concept of an “authorized disclosure” is new and that Congress essentially created a state-sanctioned mechanism for the spread of government propaganda.

Steven Aftergood of Secrecy News pointed out in December 2012 that  “authorized disclosures” are a category of information that have never been a part of executive branch policy:

…This is an unprecedented legislative definition (or recognition) of a category of information that has no explicit basis in executive branch policy– namely, authorized disclosures of classified information to an uncleared member of the press or the public.  (“Can Disclosures of Classified Information Be Authorized?”, Secrecy News, December 19, 2012).  While disclosures of classified information to the press obviously occur, the official authorization for such disclosures, if it exists at all, has always remained tacit.  (There is an exception for life-threatening emergencies, in which classified information may be disclosed to first-responders and the like.).

The new provision notably applies to all “government officials,” including White House officials. It may oblige the Administration either to abstain from authorized disclosures of classified intelligence to the press, or to revise its policies to more clearly permit such disclosures, or to somehow evade the new reporting requirement, perhaps by defining it away. Thus, for example, Vice President Dick Cheney stated in 2004 that classified information could be used “to shape and inform what one says publicly” without violating prohibitions on disclosure of classified information…

As Aftergood suggests, the provision may have had the effect of discouraging government officials from making any disclosures, whether they are authorized or unauthorized. It may have had the effect of government officials developing a way to get around the requirement of notification too.

For example, here’s an exchange that CIA director John Brennan had with Senator Richard Burr during his confirmation hearing in March 2013 :

BURR: …On January 13th of this year, the President signed into law the 2013 Intelligence Authorization Act, which requires congressional notification of any authorized disclosure of national intelligence.

Now, we’ve not received any notifications of authorized disclosures. Have there been any authorized disclosures, to your knowledge?

BRENNAN: I would like to say that since you haven’t received any notifications, there haven’t been.

BURR: Would you consider the information reported in the press about the counterterrorism playbook an authorized disclosure?

BRENNAN: I don’t know which piece you’re talking about. There’s been a lot of discussion out there in the media and in the newspapers about this.

And so I don’t know specifically about any classified information. The fact that the administration may be going through a process to try to institutionalize, codify, make as rigorous as possible our processes and procedures in and of itself is not a classified issue.

So those details that are classified, I don’t know of any that came out in some of those reports.

It is possible Brennan, as national counterterrorism adviser to Obama, was one of the officials disclosing information to the Washington Post. If he was, this exchange would demonstrate how an official could be coy and get away with not reporting a disclosure.

Theoretically, “authorized disclosures” would not be under investigation by the Justice Department at any time. If a member of Congress thought the release of a certain piece of intelligence was reckless or criminal, the notification would help them understand why the decision was made to release the information.

One could suppose that the provision could have some value to the public if the public could see what intelligence is being “authorized” for disclosure by government officials. If “experts” were outraged that a certain piece of intelligence was now public, the government’s notification could alleviate concern.

Releasing the notifications to Congress would also present a clearer picture of how officials use secrets to shape public opinion about national security matters.

It is well-known that the Office of the Director for National Intelligence (ODNI) has made “authorized disclosures” of previously classified intelligence on NSA phone records collection and other programs, such as PRISM, which were revealed by NSA whistleblower Edward Snowden. The objective of such disclosures was to “correct” conversation so people would understand how programs are used, that there is “oversight,” and that they are valuable to keeping the nation “safe.” But whether those were reported to Congress is unclear, especially since the disclosures were announced on the ODNI’s own Tumblr.

Above all, ODNI’s top lawyer, Robert Litt, argued during a “Freedom of Information Day” celebration during “Sunshine Week”

…Who is responsible for deciding what should be secret and what should be public?  Decisions about what can be disclosed consistent with the national interest require an appreciation of both sides of the equation: both the value of transparency and the value of secrecy.  In my opinion, we cannot survive as a nation if we let those decisions be made by individuals who do not have adequate insight into the implications of their actions. The compromise of intelligence capabilities can result in the waste of millions of dollars, in an inability to give our policymakers the warning that they need to deal appropriately with threats, or, in the worst case, to the loss of lives.  That’s why we go through a careful, thorough, deliberative process before we disclose classified information, to ensure that we do not endanger capabilities or lives.

But leakers disrupt this process by taking it upon themselves to decide what should and should not be withheld from public view. They do this without understanding the context for the information that they release, and in willful disregard for the sensitive sources and methods that they are placing in harm’s way. In short, leakers believe that they know more than everyone else, including the legislative and judicial branches of government that have continually endorsed the principle of classification for national security reasons…

How are officials who make “authorized disclosures” any better than “leakers” if they do not inform the public why they are disclosing not just classified information but classified intelligence when they make such disclosures to the press or post such information directly to the internet?

Claiming notification of “authorized disclosures” to Congress must be kept “top secret” does not help any person believe officials are not seriously abusing their secrecy powers. Instead, it suggests to citizens that there are some secrets the global security state will part with or use to preserve and advance its own agenda. That is why citizens are not supposed to know about these—well, let’s call them what they really are: authorized leaks.

Screenshot from C-SPAN broadcast of Council on Foreign Relations event

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