Stumbling Blocks in the way of Safeguarding America’s Secrets

By Walter Pincus

Pulitzer Prize Winning Journalist Walter Pincus is a contributing senior national security columnist for The Cipher Brief. He spent forty years at The Washington Post, writing on topics that ranged from nuclear weapons to politics. He is the author of Blown to Hell: America's Deadly Betrayal of the Marshall Islanders. Pincus won an Emmy in 1981 and was the recipient of the Arthur Ross Award from the American Academy for Diplomacy in 2010.  He was also a team member for a Pulitzer Prize in 2002 and the George Polk Award in 1978.  

OPINION — A threat to the law that helped locate al-Qaeda’s Ayman al-Zawahiri, a bureaucratic National Archive change that could further delay release of classified Presidential documents –  and the threat to National Archive personnel from pro-Trump diehards – were all discussed last week at a conference at the Lyndon Johnson Presidential Library.

The two-day conference was sponsored in part, by the Public Interest Declassification Board, which advises the President on issues pertaining to national classification and declassification policies, which is why the National Archives figured prominently in the discussions.

Called ‘America’s Secrets: Classified Information and Our Democracy’, the conference keynote speaker, Director of National Intelligence Avril Haines, used part of the question period to defend a controversial section of the Foreign Intelligence Surveillance Act (FISA), which runs out by the end of this year, if not reauthorized by Congress.

Called Section 702 of FISA, it permits the U.S. government to conduct judicially approved, targeted surveillance of foreign persons located outside the United States when those persons use American electronic communication service providers such as Google and Facebook.

Public knowledge of this capability that covers roughly 200,000 foreign targets a year, came out in 2013, through former-National Security Agency (NSA) employee Edward Snowden. At the time, Snowden claimed that the NSA was using it to collect the communications of U.S. persons’ in violation of the Fourth Amendment.

The NSA has defended the system saying information on Americans is collected only when they are contacted by a foreign targeted source, and it is protected within the system.

Haines recognized work had to be done to get congressional reauthorization of Section 702 which she described as “absolutely critical” to intelligence work.

“You know,” she said, “we recently disclosed the fact it [Section 702] was critical for example in the operation against Zawahiri and it continues to be critical. Less is known about the degree to which we rely on it for many other aspects of our work,” after which she listed cyberattacks and ransomware.

For counterintelligence work, Haines said, Section 702 is used “to identify spies of other countries…nothing is untouched by this authority…We would not be able to do our job without it.”

She also described the process in the pre-Russian invasion of Ukraine period that allowed disclosure of what in the past, would have been highly classified intelligence.

The challenge Haines said, was “How could we expose what we were seeing which we might have learned from classified sources using open sourcing, and there’s a remarkable amount of other things, imagery and other things that we could effectively point to.”

She added, “Using that open source intelligence and developing those ‘products’ in that way was extremely productive.”  It also has led the Intelligence Community “to begin to develop the process for doing that kind of [classified to openly sourced] thing.”

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Haines was also asked about China and its threat to Taiwan. Her answer was in line with what Defense Secretary Lloyd Austin said recently.

The Chinese, Haines said, “are building up their military capacity in order to have the option, in effect, to take Taiwan by force and potentially over our intervention, Western intervention.” She added, however, “Our assessment continues to be they would prefer to do so by peaceful means rather than by using force and that would be their approach to this.”

I should point out that Haines opened her remarks by taking on a theme of the conference – over classification.

She said, “Over classification undermines critical democratic objectives such as increasing transparence to promote an informed citizenry and greater accountability. Second, over classification undermines the basic trust the public has in its government. Third, over classification negatively impacts national security because it increases the challenges associated with sharing information that should not be classified, or at least not classified at the level it is classified at.”

She also recognized “in the already resources restrained environment, we have a relatively small number of people, money and subject matter expertise dedicated solely for the declassification review. And that relatively small group faces the daunting task of processing requests from an utterly massive repository of records.”

On Friday, when the conference turned to its main subject which was government secrecy in the context of Presidential libraries, panels of historians, journalists and archivists, including current and former heads of Presidential libraries, took up where Haines left off.

Serious questions about the declassification process were discussed with the most interesting from my journalist point of view, coming from Tim Naftali, former director of the Nixon Presidential Library, and now a professor at New York University.

While Naftali noted that “classified Presidential and Vice-Presidential documents are getting a lot of attention these days,” he said getting less attention was that “the National Archives is woefully underfunded and understaffed given the mission it has in the U.S. declassification system…A new study would find,” he said, “that the National Archives is now as significant a roadblock to the timely review of old secrets as the CIA, the Pentagon or the NSA.”

In regard to the first problem, Naftali pointed out, “The National Archives has neither the staff or the time at the end of an administration – nor the real [legal] authority – to check boxes of Presidential or Vice-Presidential records that leave the White House by January 20.”

Naftali also described a past National Archives decision to close the security vaults at six Presidential libraries that held still-classified records of those previous presidents and return all their still-secret material to Washington. The reason, Naftali said, was placing that classified material “in Washington puts them closer to the agencies that created them and, therefore, makes declassification easier.” Instead, Naftali said, it “has exacerbated existing backlogs of requests for release.”

He explained that to make this consolidation cost effective, the National Archives “could not hire appreciably more archivists in Washington.” The Archives is “waiting for those folks at these [older] libraries where the documents used to be to retire, to move the slots to D.C. And they are letting their costly clearances lapse while Washington struggles to find money to hire and get clearances for staff at D.C.  Meanwhile the backlog grows longer and longer.”

To make matters worse, according to Naftali, the LBJ, Nixon, George H.W. Bush, Reagan and Clinton libraries are being pushed to send their remaining classified documents to Washington.

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That will “throw their millions of pages of classified records, thousands of miles from these libraries, into vaults in Washington where there will be far fewer archivists to work on them,” Naftali said.

Congress in the past few years, has been looking into changing the Presidential Records Act, which does not have any legal “teeth,” one panelist, Columbia University Professor Matthew Connelly said.

The Archivist of the United States has only “consultative authority,” Naftali said, “he works for the President…The National Archives is not an independent organization. It works for the President of the United States.”

He then pointed out, “It’s very hard for someone who works for the President of the United States to go to the President of the United States and say, ‘You know, by the way, we don’t think those are your private records.”

“Congress needs to beef up the authority of the National Archives,” Naftali said, adding, “And you know what, that actually may come out of this. So, something good may come out of this.”

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