Court Seals Unclassified Document In Whistleblower Case... After Gov't Falsely Says It's Classified

from the attack-on-leakers dept

We've discussed how, despite all his talk of "transparency" and the importance of whistleblowers, President Obama has been the most aggressive president ever in terms of attacking any whistleblowers. The administration has brought more indictments for leaking than all other presidents combined. Think about that for a second.

In one such case, against former NSA employee Thomas Drake (accused of leaking NSA info to the press), the feds are now trying to falsely claim that unclassified documents are classified -- which is actually a key point in the legal fight. Slashdot points us to the latest news in which Drake's lawyers submitted some evidence to the court concerning how the NSA classifies documents. Drake's team is arguing that nothing he had in his home or which was sent to the press was "classified," and that the NSA is falsely claiming unclassified works were classified. So here's the issue: the feds asked to court to seal the exhibits, claiming they were classified:
"As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as 'FOUO', which means 'For Official Use Only.' This means that the information is not for public dissemination. Until such time as NSA downgrades the information to 'Unclassified,' the exhibits should not be publicly filed,"
And, as seems to happen all too often, the judge immediately agreed, sealing the "official use only" filings. Except, here's the thing, contrary to the statement above, "FOUO" documents are, by definition, not classified. As the report linked above points out, under DoD regulation 5200.1-R (pdf) "By definition, information must be unclassified in order to be designated FOUO."

In fact, one "sealed" document, which is still available (pdf) on the Federation of American Scientists web site, quite clearly shows that the document itself is marked unclassified:
And, in a way, this actually proves the whole point of Drake's defense team. The government wants to pretend that unclassified documents that he had were classified. And, apparently without any sense of irony at all, it demonstrated its own problem of falsely claiming unclassified documents were classified, by claiming an unclassified document about how the government classifies documents... was classified! (Say that three times fast). What's troubling, of course, is that the court seemed to just accept the claim that this clearly unclassified document was classified and ordered the seal.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    MrWilson, Mar 25th, 2011 @ 12:01pm

    This issue seems to be systemic.

    There seems to be an inherent assumption on the part of people within the government that people in a particular position are competent and honest.

    ICE takes it's cues from the entertainment industry. "They said it's infringing, so it must be infringing!"

    Here, the judge takes the government's word for it that the documents are classified.

     

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  2.  
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    Gwiz (profile), Mar 25th, 2011 @ 12:06pm

    I have a comment about all this.

    Unfortunately, it's been marked as FGUO (For Gwiz's Use Only) and is classified.

    I would have it unclassified for you to read, but the procedures to do that are FGWUO (For Gwiz's Wife's Use Only) and since she has a higher security clearance in my house then me (of course) I cannot.

    I will attempt to have my comment reclassified as FAWFCU (For Anyone Who Friggin Care's Use Only) later when I get home with the proper bribes...er...gifts of flowers and chocolate. Will keep you advised.

     

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  3.  
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    Ima Fish (profile), Mar 25th, 2011 @ 12:11pm

    President Obama has been the most aggressive president ever in terms of attacking any whistleblowers.

    I don't know why anyone is shocked about this. Obama received his political experience and training in and around Chicago. Did the people who voted for him seriously believe that Obama was the one Chicagoan politician with integrity and honesty?

     

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  4.  
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    Dark Helmet (profile), Mar 25th, 2011 @ 12:15pm

    Re:

    "I don't know why anyone is shocked about this. Obama received his political experience and training in and around Chicago. Did the people who voted for him seriously believe that Obama was the one Chicagoan politician with integrity and honesty?"

    Hey, you son of a--

    Nevermind. You're right....

     

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  5.  
    identicon
    Anonymous Coward, Mar 25th, 2011 @ 12:17pm

    Re:

    Nah we were just worried about Palin

     

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  6.  
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    Ima Fish (profile), Mar 25th, 2011 @ 12:20pm

    Re: Re:

    My god, I had forgotten all about that. Or blocked it out. Yeah, voting for Obama probably was the lesser of two evils.

     

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  7.  
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    jackwagon (profile), Mar 25th, 2011 @ 12:22pm

    Re: Re:

    True. Unfortunate, but true.

     

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  8.  
    identicon
    Anonymous Coward, Mar 25th, 2011 @ 12:28pm

    Re: Re: Re:

    Dark Helmet and Anonymous Coward in 2012!

     

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  9.  
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    Joe Publius (profile), Mar 25th, 2011 @ 12:35pm

    I think that this would happen regardless of the party notifying capital letter after the President's name. I for one, am not surprised. More than information, this government sees secrets as power, and woe to anyone who questions what's kept in the dark, and why.

     

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  10.  
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    Qritiqal (profile), Mar 25th, 2011 @ 12:40pm

    Re:

    Bush had a C average at Yale and disclosed his transcripts despite the mockery that would come from them.

    I don't know what Obama's grades were.

    Need I say more?

     

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  11.  
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    Anonymous Coward, Mar 25th, 2011 @ 12:45pm

    A bit of semantics in the quote. Technically "FOUO" is not a "classified" marking. It is a distribution marking saying that it shouldn't be widely distributed. It is commonly used to exempt things from FOIA requests and to allow for distribution to people w/o a clearance and some need to know (e.g., law enforcement).

    So it is reasonable to ask for a FOUO document to not be public record, although parties to the case can see it freely.

     

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  12.  
    identicon
    Anonymous Coward, Mar 25th, 2011 @ 12:45pm

    This article is wrong.

    The document is not classified. FOUO is an official designation that limits the distribution of unclassified documents.

    In the following statement:

    "As the holder of the privilege for this information, NSA has classified the documents as 'FOUO',"

    The verb "classified" means "has assigned a classification level to." You can say "x has classified the document as unclassified." It is not the best verb choice; "designated" or "marked" would be less ambiguous. The statement is not incorrect as it is, though.

     

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  13.  
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    Anonymous Coward, Mar 25th, 2011 @ 12:48pm

    Re:

    You stated it a bit clearer than I. The word choice in the quote is poor, but not incorrect.

     

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  14.  
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    Dark Helmet (profile), Mar 25th, 2011 @ 12:51pm

    Re: Re: Re: Re:

    Hello, my fellow Americans. Are you tired of government representatives that claim they'll work for you, but instead go running to special interests? Are you sick of a President who pretends to care about your needs? Do you care enough to stop the lying?

    Then vote for me, Dark Helmet. I'm telling you flat fucking out that if some dude with cocaine dripping from his nose hands me an envelope with thousands of dollars in it, you're damn right I'm going to vote however he wants me to. And don't kid yourself, you would too! Don't like it? Change the damn law to outlaw lobbying. What did you idiots think lobbying was, after all?

    Secondly, I promise not to give one single squirrel shit about you or how you want me to vote. That's fucking honesty. But the news isn't all bad, my friends. I'm going to plow ahead with my own insane initiatives and make them federal policy. Be prepared for an official federal holiday called "Steak and BJ Day". Ladies, if I were you, I'd vote for the other guy....

    So please, vote for me, because you know exactly what you're going to get: an egotistic maniacal elitist who barely knows you exist but is happy to tell you so. Unless this is all the lie, in which case I WILL represent you and I DO care what you think. How's that for a mindfuck?

    (Paid for by the Dark Helmet For President Because He'd STILL Be Better Than Anything We've Had Since Lincoln comittee)

     

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  15.  
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    Mike Masnick (profile), Mar 25th, 2011 @ 12:55pm

    Re:

    The verb "classified" means "has assigned a classification level to." You can say "x has classified the document as unclassified." It is not the best verb choice; "designated" or "marked" would be less ambiguous.

    I think it's pretty clear that the feds meant "classified" in terms of it being secret/classified. Otherwise, why would they say it couldn't be released until the NSA downgraded it to "unclassified."? The problem is that it already was downgraded to unclassified...

     

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  16.  
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    Josef Anvil (profile), Mar 25th, 2011 @ 1:03pm

    Re:

    Admittedly Obama is not the best President, but then comparing him to Bush, he looks like JFK.

    Attacking Obama for being a Chicago politician is just insane. The US Senate and House of Reps are far more corrupt than any single municipal government, as they are just used to constant bribes ( errr.... lobbying).

    Im guessing Chicagoans get a bad rap because we just call them bribes openly. Oh wait, that's classified information. oops.

     

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  17.  
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    Anonymous Coward, Mar 25th, 2011 @ 1:03pm

    I am stating all of this with the understanding that I work as a FOIA Specialist. Dealing with this kind of stuff is my job.

    FOUO used to have stronger meanings. It does generally mean that the documents are not cleared for disclosure, as unclassified does not of itself mean "cleared for public release.

    Strictly speaking, FOUO means one thing - the documents contained herein MAY be subject to one of the nine FOIA exemptions. The may is important. Legally, FOUO is as binding as carving "self defense" in the forehead of the person you jsut killed - it may be true, but it is not a binding judgement.

    So, yes, this is weaselly. Yes, FOUO is largely misunderstood and abused. But, strictly speaking, FOUO documents are not automatically cleared for release, and may have information that should not be released. They COULD be harmless, but a FOUO document could also list the names, addresses, SSNs, etc., of all employees. So it's worth being sealed at least so the court can examine the documents adn see if they're sensitive in nature.

     

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  18.  
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    Anonymous Coward, Mar 25th, 2011 @ 1:05pm

    Re: Re:

    You are incorrect.

    It cannot be released publicly because it is marked FOUO. As I said, this is an official designation that limits the distribution of unclassified documents.

    It has to be "downgraded" because "unclassified/FOUO" is more restrictive than "unclassified."

     

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  19.  
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    TheStupidOne, Mar 25th, 2011 @ 1:32pm

    In Defense of the Judge

    "And, as seems to happen all too often, the judge immediately agreed, sealing the "official use only" filings."

    If I were that judge (which thankfully I'm not) I would have immediately sealed any documents the government said were classified. A little extra caution with information that is classified is in order, and the judge should assume the government is telling the truth in this case and act rapidly. Of course after sealing the documents, I would have had my clerks evaluate the validity of the government's claim and if I find that the government has lied to me I would charge the government with contempt and unsealed the documents.

     

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  20.  
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    Jordan (profile), Mar 25th, 2011 @ 1:38pm

    Change the damn law to outlaw lobbying.

    That's the funniest part. Like we would have a chance at that.

    You've got my vote.

     

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  21.  
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    Chosen Reject (profile), Mar 25th, 2011 @ 1:52pm

    Re:

    There seems to be an inherent assumption on the part of people within the government that people in a particular position are competent and honest.
    There is a trend amongst all people to assume that someone with a job must be competent at that job. The older I get, and the more I get to know "professionals" the more I've come to realize that "professional" only means you get paid to do it. Which simply means someone was able to convince someone else to pay them. It doesn't necessarily have anything to do with actual skill for what it is they are being paid to do.

     

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  22.  
    identicon
    Anonymous Coward, Mar 25th, 2011 @ 1:54pm

    Re: Re:

    Palin was running for VP not P. Do you honestly think Biden is a lesser evil than Palin?

     

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  23.  
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    weneedhelp (profile), Mar 25th, 2011 @ 2:06pm

    NSA has classified the documents as 'FOUO'

    should read:
    NSA has classified the documents as 'FUD'

     

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  24.  
    identicon
    Anonymous Coward, Mar 25th, 2011 @ 2:09pm

    Re: Re: Re: Re: Re:

    My name is Anonymous Coward and I approve of this message.

     

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  25.  
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    weneedhelp (profile), Mar 25th, 2011 @ 2:13pm

    Re: Re: Re: Re: Re:

    L...O...F'in...L.

    "Steak and BJ Day" - Got my vote.

    This has got to be on the funniest list next week even if it doesnt get voted so.

     

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  26.  
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    Ima Fish (profile), Mar 25th, 2011 @ 2:29pm

    Re: Re: Re:

    I know she was running for VP. Well, I do now, like I said, I sort of blocked that whole thing out.

    Still, with McCain's age and health, who seriously would risk putting that nutjob in the white house?!

     

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  27.  
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    The eejit (profile), Mar 25th, 2011 @ 2:37pm

    Re: Re: Re:

    Yes, but only because of Quantum.

     

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  28.  
    identicon
    Anonymous Coward, Mar 25th, 2011 @ 2:39pm

    Re: Re:

    Perhaps, but FOUO is enough to keep it from being publically released.

     

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  29.  
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    The eejit (profile), Mar 25th, 2011 @ 2:41pm

    Re: Re: Re:

    Did you even read what was said?

    The Feds argued that it was Classified (with a capital C.) This is in spite of the fact that it is FOUO AND UNCLASSIFIED. IT doesn't matter who the Official Use belongs to - the argument was, "It's for official use only, therefore it must be sealed away as though Classified - for the public's benefit, of course!"

     

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  30.  
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    Anonymous Coward, Mar 25th, 2011 @ 3:01pm

    Classification

    The DoD has various classification levels including "Unclassified", "FOUO", "Confidential", "Secret", "Top Secret" etc. There has always been confusion with the use of the words "classified" and "unclassified". The NSA is correct in this issue because until the documents are "classified" as "unclassified" instead of "FOUO", they should not be made public.

     

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  31.  
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    Anonymous Coward, Mar 25th, 2011 @ 3:56pm

    I love when Mike bitches out other news agencies for not doing their homework, then completely face plants by posting this garbage, among others:'

    "Information that is unclassified but which the government does not believe should be subject to Freedom of Information Act requests is often classified as U//FOUO—'Unclassified—For Official Use Only'"


    Therefore, whatever quoted text you smugly posted in your article is explicitly on point with their workflow.

    Good day.

     

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  32.  
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    BongoBern (profile), Mar 25th, 2011 @ 4:15pm

    Government Coverups

    It's just so hard to trust any of our parties, or leaders because they don't trust us!

     

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  33.  
    identicon
    Anonymous Coward, Mar 25th, 2011 @ 4:47pm

    Re:

    I love when Mike bitches out other news agencies for not doing their homework, then completely face plants

    Admittedly, the news agencies have professed standards for accuracy, whereas this, being only an "opinion blog," doesn't. You have to have standards to be held to them.

    This is another example of a Techdirt article where something didn't immediately make sense (an unclassified document not being publicly distributable) and it was immediately ascribed to malice and corruption because the government and a judge were involved. The actual situation seems to be that this is a typical and mundane bit bureaucracy. To make that leap, you have to assume you know better than the judge, the NSA, and a lot of other people, despite their having extensive direct knowledge of the situation and you having none. That's pretty bold.

    It must be very depressing to hold a worldview that so much of what goes on in the world is the result of corruption and malice. Of course these things happen, but when you see it around every corner and in every mundane bit of bureaucratic procedure, it's not the world with the problem anymore - it's you. The lack of empathy is truly stunning.

     

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  34.  
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    Chris in Utah (profile), Mar 25th, 2011 @ 6:03pm

    Anybody else think that the NSA is molding into the thought police; putting doublethink on documents as starting measure. I wonder what the word needs to be... hmm

     

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  35.  
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    vivaelamor (profile), Mar 25th, 2011 @ 8:16pm

    Re: Re: Re:

    "You are incorrect."

    I would wholeheartedly agree with you if it weren't for the fact that the case is over whether the documents are classified or not. If the NSA are admitting that the documents are unclassified then that would seem to sink their case. The language is plausible, the context isn't so much.

     

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  36.  
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    vivaelamor (profile), Mar 25th, 2011 @ 8:20pm

    Re: Re: Re: Re:

    'the argument was, "It's for official use only, therefore it must be sealed away as though Classified - for the public's benefit, of course!"'

    I'm not familiar with the grounds for sealing documents but unless only classified documents can be sealed then it seems conceivable that they wanted them sealed for being sensitive.

     

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  37.  
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    vivaelamor (profile), Mar 25th, 2011 @ 8:26pm

    Re: Re:

    "The lack of empathy is truly stunning."

    If only I could see your comment history to better judge whether you're empathic or not. Judging someone while posting anon rather lacks weight.

     

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  38.  
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    Anonymous Coward, Mar 25th, 2011 @ 11:44pm

    Re: Re: Re: Re:

    I would wholeheartedly agree with you if it weren't for the fact that the case is over whether the documents are classified or not. If the NSA are admitting that the documents are unclassified then that would seem to sink their case.

    I'm pretty sure you're conflating two entirely separate sets of documents.

     

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  39.  
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    Anonymous Coward, Mar 26th, 2011 @ 12:15am

    The court just wants to feel that it's in control of information flow. At its decision, the world will suddenly delete all copies of the information and the future will act like the information has never been released. and, at a judges decision, the dead will rise too. The judge just wants to show off its power, power to the judges.

    Of course that's not how it really works.

     

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  40.  
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    Anonymous Coward, Mar 26th, 2011 @ 12:17am

    Re: Re:

    "but when you see it around every corner and in every mundane bit of bureaucratic procedure, it's not the world with the problem anymore - it's you."

    So if it's really the case that corruption is around every corner (and it does seem to be, I can back that up with plenty of evidence) and one sees the world for what it is, then it's the person who sees reality for what it is that's the problem?

     

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  41.  
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    Anonymous Coward, Mar 26th, 2011 @ 12:41am

    So if it's really the case that corruption is around every corner (and it does seem to be, I can back that up with plenty of evidence) and one sees the world for what it is, then it's the person who sees reality for what it is that's the problem?

    Really? Let's see how aligned your perceptions are with reality. What country are you from, and if you had to rank most of the countries in the world (let's say about 180 of them) in terms of corruption (with 1 being least corrupt and 180 the most), where would yours end up, in your estimation?

     

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  42.  
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    Anonymous Coward, Mar 26th, 2011 @ 1:04am

    Re:

    What does relative corruption have to do with absolute corruption?

     

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  43.  
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    Anonymous Coward, Mar 26th, 2011 @ 1:16am

    Re: Re:

    Fine. On a scale of 1 to 10, 10 being least corrupt and 1 being most, where is your country? I would also like you to guess how many countries are less corrupt than that, if you would. It's really a very simple question. With all your evidence it should be easy to answer.

     

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  44.  
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    The eejit (profile), Mar 26th, 2011 @ 1:39am

    Re: Re: Re: Re: Re:

    Then why not argue based on that? It wouldn't be hard to do, if that was the case.

     

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  45.  
    identicon
    Jack, Mar 26th, 2011 @ 4:07am

    FOUO

    Why would any information be suddenly classified unless it was from an illegal action?
    The public sure did pick a wet noodle when it elected Obama or I mean when Obama was allowed to be put in office.
    How can the public stand for the abuse of real patriots that stand up for their rights. Are their any Americans left worth fighting for?
    Look at Bradley Manning, no charges yet he is being confined and tortured by Obama.

    We treat our pets better than this and lock up animal abusers while the torture of innocent humans goes unpunished.
    We talk about recalling governors for union busting but maybe we should thing more about recalling Obama and getting him out of the White House while we still have a law to impeach him.

     

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  46.  
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    Anonymous Coward, Mar 26th, 2011 @ 4:33am

    Re: FOUO

    Look at Bradley Manning, no charges yet he is being confined and tortured by Obama

    You mean no charges except the two from last July and the 22 from this month, right?

     

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  47.  
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    vivaelamor (profile), Mar 26th, 2011 @ 5:58am

    Re: Re: Re: Re: Re: Re:

    "Then why not argue based on that? It wouldn't be hard to do, if that was the case."

    The point is that they could have been arguing based on that, but just worded it badly.

     

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  48.  
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    vivaelamor (profile), Mar 26th, 2011 @ 6:00am

    Re: Re: Re: Re: Re:

    "I'm pretty sure you're conflating two entirely separate sets of documents."

    You're right. I guess I do wholeheartedly agree then.

     

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  49.  
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    Anonymous Coward, Mar 26th, 2011 @ 6:58am

    Re: Re: Re:

    It's an irrelevant question. Corruption exists on every corner in as much as it possibly could, both in my country and in most other countries. Your point?

     

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  50.  
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    Anonymous Coward, Mar 26th, 2011 @ 7:07am

    Re: Re: Re: Re:

    in as much as it plausibly could.

    and don't take the words "on every corner" too literally, it's just an expression. It just means there is a TON of corruption out there, it's pandemic, it's not simply an issue of, "Of course these things happen" it's an issue of the problem is pandemic, it's all around us at all times.

     

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  51.  
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    Anonymous Coward, Mar 26th, 2011 @ 9:23am

    Re:

    Confusing relative corruption with absolute corruption is itself probably corrupt. I doubt you're that stupid. and corrupt techdirt trolls are the reason why I have to specify that "on every corner" is just an expression, because they have conditioned me to do so.

     

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  52.  
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    Jester00 (profile), Mar 26th, 2011 @ 10:19am

    Re:

    Unfortunately, Data Classification has it's own terminology or jargon, much like any other specialty.

    In certain functions (government, finance)all documents get a classification. in some places you have a default classification, and this default will most likely involve some level of restriction on its distribution. In the military (and certain businesses) the default will be Restricted, in other cases it may default to something like "Internal Use Only". To become public or unclassified, the document will need to be reviewed and deliberately classified that way.

    For the purpose of this discussion it should be noted:

    UNCLASSIFIED –not technically a "classification", this is the default, and refers to information that is not sensitive and can be freely disclosed to the public. Information that was previously classified under one of the above levels is often declared "unclassified" at a certain time because its age has made its classification no longer necessary.

    (Source: Section 2.1, http://www.sans.org/reading_room/whitepapers/assurance/security-issues-data-traverses-information-do mains-guards-effectively-address-problem_1418)

    So, while something may end up and Unclassified, it probably didn't start that way, and a deliberate decision was made to classify it as "Unclassified"



    Additional references:
    https://secure.wikimedia.org/wikipedia/en/wiki/Bell%E2%80%93LaPadula_model
    and
    http://ist.mit.edu/security/data_classification
    or
    https://wiki.internet2.edu/confluence/display/itsg2/Data+Classification+Toolkit

     

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  53.  
    identicon
    Anonymous Coward, Mar 26th, 2011 @ 11:06am

    Re: Re: Re: Re: Re:

    Thank you for firmly revealing to everyone that, despite your protestations to the contrary, it is indeed you and not the world that has the problem here.

     

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  54.  
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    The eejit (profile), Mar 27th, 2011 @ 3:03am

    Re: Re: Re: Re: Re: Re: Re:

    That's simple idiocy, then. AS legal counsel, the onus is on you (as counsel) to be as clear and concise as possible, to avoid misunderstandings ocurring.

     

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  55.  
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    The eejit (profile), Mar 27th, 2011 @ 3:05am

    Re: Re: FOUO

    Then where is the trial? In the USMJ, the maximum limit before a trial must be procured is six months. if there's a charge from last July, then that's nine months.

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Dylan Oliver, Mar 27th, 2011 @ 7:33am

    Leakers

    Shouldn't whoever posted the UC/FOUO document linked above be charged as well?

     

    reply to this | link to this | view in thread ]


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