Oversight authority gives thumbs up to classifying evidence of military wrongdoing

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"Safe" photo by Rob Pongsajapan, Flickr CC

Transparency suffered a blow in late May when John Fitzpatrick, Director of the Information Security Oversight Office, approved a Marine Corps decision to classify images and videos of troops urinating on corpses in Aghanistan. (Secrecy News, June 10) Former ISOO director J. William Leonard called it “a significant and disturbing shift” in the government’s secrecy policy.

The ISOO review had been requested by Major James W. Weirick, a Marine whistleblower. Weirick had complained that classifying the images violated an executive order that forbids classifying material to “conceal violations of law” or to “prevent embarrassment to a person, organization or agency.” Also, he argued, the images were privately owned at the time of discovery and outside government control. [pullquote]Former ISOO director J. William Leonard called it “a significant and disturbing shift” in the government’s secrecy policy.[/pullquote] A Marine corps spokesman, Col. Sean Gibson, said the videos were classified to prevent their use as propaganda to provoke attacks against US troops. Marine Corps officials “further determined that continued classification was necessary to prevent further incidents of attacks in Afghanistan and to protect international relations in the region,” said Gibson. Fitzpatrick told the New York Times that classifying the images was authorized by a provision of E.O. 13526 that covers military operations.  On its face, however, E.O. 13526 offers little support for classifying the videos.

Sec. 1.4. Classification Categories. Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a) military plans, weapons systems, or operations;

Fitzpatrick’s argument appears to hinge on whether failing to classify the images presented a threat of  “identifiable or describable damage to the national security.” Any such concerns were likely moot , however, because other images, a video and reports of the incident had circulated widely on the internet. The response to those was muted, Spencer Ackerman reported.

The video has all the ingredients of a scandal. It shows, apparently, desecration of corpses by laughing service members. It’s gone viral. And it occurs in the context of a grueling war that requires Afghan support.

But the missing ingredient, so far, is Afghan outrage. There have yet to be protests, let alone violence — although it’s possible that will take time to build.

It’s especially hard to argue that the images also met the second prong of the test. The images depicted soldiers engaged in activities that presumably were not authorized, so would not have revealed official operations. Moreover, the images were two years old, making it unlikely that they would contain any useful information about current or future “military plans, weapons systems, or operations. [pullquote]Is there any act of overclassification that is so egregrious that the classifier would be held accountable for abusing his classification authority? – Steven Aftergood[/pullquote] In a written declaration. Col. Jesse Gruter, who became Weirick’s direct supervisor in January 2012, described how he and Weirick tried to prevent evidence from being classified.

Gruter contends in his declaration that Marine Corps headquarters classified videos, interviews and other evidence collected during the investigations into the urination cases despite his and Weirick’s protests, and without legal justification. That move was made through a February 2012 memo approved by Lt. Gen. Richard Tryon, then the deputy commandant for plans, policies and operations at the Pentagon, Gruter says. The colonel adds that Bowe, Amos’ deputy staff judge advocate, informed him that Dunford, then the Corps’ assistant commandant, had ordered it. Mills, the consolidated disposition authority for all the cases, disagreed with classifying the investigations, but it was done anyway, Gruter says. The memo signed by Tryon has Hogue’s name on it, and states it was prepared by Delorier, one of the commandant’s civilian attorneys. (Marine Corps Times)

In a complaint to the Pentagon, Weirick requested an investigation into whether the commandant’s lawyers “still possess the requisite reliability and trustworthiness such that entrusting them with access to classified information is clearly consistent with the interests of national security.” If the Pentagon had, indeed, suspended their security clearances, it would have been the first time anyone had been held accountable for overclassification, writes Steven Aftergood in the June 10 edition of the newsletter Secrecy News.

Is there any act of overclassification that is so egregrious that the classifier would be held accountable for abusing his classification authority? The answer is unknown, since no one has ever been held accountable in such a case.  As far as can be determined, no classifier has ever been found to have willfully or culpably defied the rules set forth in the President’s executive order on national security classification.

Keep in mind that the federal government classifies hundreds of millions of pages of classified information each year. Yet, in the history of the country, there is no indication that anyone has ever been disciplined for abusing that authority—not even after the Pentagon Papers exposed systematic lying to the American people and Congress. In contrast, the current administration filed Espionage Act charges against eight whistleblowers who disclosed possible abuses of classification authority. When federal employees sign an agreement to keep classified information secure, there is an implication that the information was legally classified. If the President neglects his duty to enforce compliance with the rules of classification, that would appear to invalidate the agreement  just as nondisclosure invalidates other kinds of contracts. At a minimum, employees would have a right to determine for themselves whether materials are covered by the agreement, i.e., legally classified, in order to comply with other obligations under federal and international laws. The President claims it is not the prerogative of employees to make such a determination. Then, Mr. President, your responsibility is clear:  Start doing your job so that others won’t have to.

Photo “Safe” by Rob Pongsajapan at Flickr CC.