Secrecy: FOIA

On the New ODNI Media Guidelines

By Chris Donesa
Tuesday, April 29, 2014, 10:00 AM

The Office of the Director of National Intelligence last week publicly released a new Intelligence Community Directive (ICD 119) establishing policies for contacts between the media and personnel inside the intelligence community.  ICD 119 received round criticism from the press and advocacy groups for setting up a presumption that only a few senior officials can have contact with the media to discuss intelligence related matters.  Such concerns are understandable even though the policies appear to be nothing dramatically new in practice and can help to protect line employees from potential exposure in the event of an unauthorized disclosure.  But ICD 119 is flawed and will likely have little meaningful impact on the real world of intelligence leaking for a different reason.  It reaches only intelligence community personnel and doesn’t apply to the senior White House, National Security Council, and other officials outside the IC who are anonymously referred to as “senior Administration officials” in the New York Times, Washington Post, and other major mainstream press outlets in connection with national security matters.  If the Administration is really serious about its work to prevent unauthorized disclosures, it ought to apply the same rules to its own appointees and staff that it does to civil servants across the intelligence community.

ICD 119 by its own definition regulates press contacts relating to certain “covered matters,” specifically “intelligence-related information, including intelligence sources, methods, activities, and judgments.”  It is inevitable that reporters will continue to do their jobs to try to find out about such information, and that the government will continue to try to protect it for national security reasons.  But with the possible exception of declassified analytical judgments, it is hard to argue from the government’s perspective (which is presumably embodied in the directive) why anyone in the cleared national security community should be discussing matters of this nature with the press except in extraordinary circumstances.  The White House press office (until recently) seemed to recognize this notion at a general level through many Administrations by adhering to a longstanding principle of not publicly commenting on intelligence matters.

As a technical matter, Executive Order 13526(which sets out Executive Branch policies relating to classified information) doesn’t seem to provide any legal reason to treat Administration officials any differently than the IC employees covered by ICD 119.  Section 3.1 of the Order provides that authority to make judgments about what should be declassified (and thus what might be discussed with media) lies with the individuals who originally classify material (and their successors, supervisors, or delegates) or the DNI.  Most such classification authorities are in the relevant agencies rather than in the White House itself.  “Senior administration officials” may have played loosely with this framework in anonymously sourced articles over the years, but there appears to be no express authority for White House or NSC staff to make declassification determinations with respect to information that the agencies have classified.  In that sense, there doesn’t seem to be any justification for those officials to be talking to the press about classified intelligence programs at all.  (Hopefully, information classified by the NSC itself would be declassified by a formal process consistent with the order rather than an ad hoc determination during a press interview.)

For evidence of the serious complications that can arise from discussion by Administration officials of classified programs, look no further than the Second Circuit’s panel opinion last week on the New York Times’ FOIA request for OLC memoranda and other documents related to drones.  While the case is complex, the Court determined that previous public statements by then-White House staff member John Brennan, Attorney General Holder, and President Obama attempting to talk around issues related to drones constituted official acknowledgment of the programs and thus effectively waived certain statutory FOIA exemptions.  A DC Circuit panel already reached a similar conclusion  more than a year ago in another FOIA case, ACLU v. CIA, based on statements by President Obama, Mr. Brennan, and former CIA Director Panetta.  Judge Garland noted in his opinion in that case that discussion by senior officials of classified programs can reach the point where it is “neither logical or plausible” for the government to continue to argue that a bright line test should prevent further disclosures related to those programs.  Although both Courts emphasized that the statements cited in these cases were public and on-the-record, the same logic conceivably could be used by judges in the future to construe anonymous press reports sourced to Administration officials as confirmation by the government barring defenses to further disclosures.

The nuances of these cases and the messy attempts at line drawing that will likely ensue as a result of them are for another day.  The point here is limited and simple – the best way to prevent such slippery slopes is by drawing clear rules about discussion of classified programs in the first place, and applying them consistently and more or less equally to everyone who has access to information about intelligence activities.  If the Executive Branch believes it is essential to support its objectives through the use of classified intelligence programs, it should protect them as such, including refraining in most cases from discussing these programs in with the press.  It has plenty of overt and acknowledged options available if it wants to conduct foreign policy activities it can discuss publicly.  Just as it is impossible to be “a little pregnant”, there can be no halfway and no exempted persons with respect to classification, even if it makes some prospective sources a bad and disfavored interview.

Chris Donesa was Chief Counsel for the House Permanent Select Committee on Intelligence from 2004-2013.