Failures

by Tim Cushing


Filed Under:
cia, foia, leaks, transparency



CIA Still Arguing Its Official Leaks To Journalists Shouldn't Be Subject To FOIA Requests

from the redefining-the-term-'made-public' dept

Last week, a federal judge pointed out the obvious to the CIA: release-to-one is release-to-all, no matter how the agency's lawyers spin it. The CIA had emailed classified information to certain journalists. When another journalist sought copies of those emails, the CIA handed him fully-redacted versions. Obviously, they weren't redacted when they were sent to select members of the public. Why would the CIA feel the need to redact the information now when another member of the public asked for it?

The CIA argued it had every right to hand out classified info to whoever it saw fit and then turn around and refuse to hand it over when an FOIA requester requested it. It said the classified info it gave to journalists was never published by those journalists, so it was technically not a public release. The judge shot back, stating that the CIA had effectively waived its right to withhold this information by handing it out to journalists in the first place.

CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private. There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including "trusted reporters," for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had? The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose). In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else.

The FAS Secrecy News blog brings us the news that the CIA has already issued a response [PDF] containing new arguments about why it should be able to engage in selective disclosure of classified info to members of the public.

CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from "unauthorized" disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said. "The CIA properly exercised its broad discretion to provide certain limited information to the three reporters."

"The Court's supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken," the CIA response stated. "The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain. For these reasons, the limited disclosures here did not effect any waiver of FOIA's exemptions."

So, technically, it's not a new argument, just a reiteration of the CIA's stance on classification waivers it would rather believe aren't waivers of classification. In essence, the CIA would like to be able to selectively leak classified information while retaining the privilege of denying every other member of the public access to these leaks. If the selected journalists choose to publish classified info handed to them by the CIA, only then does it enter the public domain, according to the the CIA. Otherwise, the CIA will decide what's classified and withholdable, not judges or logic or common sense.

Apparently, this is standard operating procedure for the agency. MuckRock's stash of CIA documents contains official instructions for CIA leaks to the press, including a checklist for post-leak damage control.

The form for reporting the leaks... was fairly comprehensive. In addition to any supplemental materials, which were be attached to the leak reports, the form was two pages long. In addition to requesting the time, date, publication author and how the sourcing was attributed, the form requested notes about the subject matter, the geography associated with it and the dissemination of the information. After asking what, if anything, the information had compromised, the form asked about the accuracy of the information.

The form also requested information about whether the leak was authorized or not, and who had authorized it. Tellingly, it requested information about which government organizations were criticized in the leak, but didn’t feel the need to ask who or what had been praised.

The tradition -- started during the Nixon administration in response to his call to root out leakers -- continues to this day. The CIA will make snap decisions on declassification, hand out info to reporters it feels it can trust, and possibly report the leaks to intelligence oversight. It happened often enough a computerized system was built to track the agency's official leaks. Nearly fifty years later, the CIA's official leak program is being challenged in court, and the CIA wants everything to be the way it was during the glory days of the Nixon presidency.

The CIA's hypocritical arguments are symptomatic of a hypocritical system. The intelligence community hates leakers, unless it's the agencies themselves doing the leaking. And it definitely doesn't trust journalists… unless it needs them to help control the narrative. The judge in this case is punching holes in government tradition. Hopefully, this will end with the CIA handing over the info it already handed over to other people, free and clear of redactions.


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  • icon
    Anonymous Anonymous Coward (profile), 6 Mar 2018 @ 6:56pm

    Is it classified or isn't it...only their hairdressers know for sure.

    Dear CIA,

    It is either classified or it's public, there is no middle ground no matter how much you wiggle and squirm. If you decide to make some limited disclosure, you are in fact removing the classified nature of whatever your disclosing. It's binary. The classification is either on or off.

    What would your position be if the journalists who received the information had published it? We understand that those journalists probably withheld the publication because they would never receive anything else from the CIA if they did. Shame on them. It's their job to disclose what they learn, not mollycoddle you.

    Sincerely

    Those with sense, common or not

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

  • icon
    Uriel-238 (profile), 6 Mar 2018 @ 9:06pm

    Can we have classification reform now? Pretty please?

    I wonder what it's going to take for our classification / sunshine policies to be reformed. At this point we can pretty much assume that classification and FOIA denials are indications of malefaction by agents within the department. Maybe we should presume wrongdoing by any government official or clerk that obstructs transparency for whatever reason.

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

  • identicon
    Agammamon, 6 Mar 2018 @ 10:20pm

    ". . . the CIA had . . . waived its right to withhold this information by handing it out to journalists in the first place."

    Somebody should tell the CIA that this is what 'Third Party Doctrine' means to the rest of us.

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

    • identicon
      Dan Schwartz, 7 Mar 2018 @ 2:47pm

      Re: Third Party Doctrine

      You're right. Which is a good reason to limit the applicability of the "third party doctrine", not a good reason to extend it to the CIA.

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

  • icon
    Chris-Mouse (profile), 7 Mar 2018 @ 4:26am

    Information is either classified or its not. If the information is not classified then there is no reason for witholding it. If the information is classified then someone in the CIA should be charged with revealing classified information to those not authorised to have it.

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

  • identicon
    Bruce C., 7 Mar 2018 @ 4:59am

    I suppose the CIA might have an argument...

    If the reporters they "officially" leaked to had the required security clearance. But they obviously didn't (it probably isn't even possible) or their lawyers would have brought it up ages ago.

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

    • identicon
      Anonymous Coward, 7 Mar 2018 @ 6:27am

      Re: I suppose the CIA might have an argument...

      Or maybe the reporters have such "super seekret" clearances that it can't even be mentioned. Or maybe the reporters are actually deep-cover CIA agents themselves. Or maybe...

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

      • identicon
        Anonymous Coward, 7 Mar 2018 @ 9:40am

        Re: Re: I suppose the CIA might have an argument...

        Or maybe the reporters have such "super seekret" clearances that it can't even be mentioned.

        Does one have to apply for clearance, or could the government just declare that reporters have it?

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

        • identicon
          Anonymous Coward, 7 Mar 2018 @ 11:03am

          Re: Re: Re: I suppose the CIA might have an argument...

          The answer is yes, and the meaning of that yes changes depending on which government official you are talking to... and your security clearance.

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

        • identicon
          Anonymous Coward, 8 Mar 2018 @ 7:33am

          Re: Re: Re: I suppose the CIA might have an argument...

          Does one have to apply for clearance, or could the government just declare that reporters have it?

          The answer to that question is secret.

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

  • identicon
    Anonymous Coward, 7 Mar 2018 @ 12:39pm

    It should be obvious to everyone, but the most partisan Trump haters

    The CIA, NSA and FBI have nothing on Trump. If they did, the intel agencies and the FBI wouldn't have used a whisper campaign of leaks to insinuate something happened, and investigations then charges would have been quick and swift, as was the case with Bradley Manning and Edward Snowden.

    The only charges brought against people involved with Trump was for lying to investigators about conversations with Russians and not for the content of those conversations. Talking to Russians isn't in and of itself illegal, and those conversations were none of the business of the outgoing administration. Not only that, the only reason the outgoing administration had any idea those people lied about those LEGAL contacts with Russians, was due to the fact the outgoing administration was spying on those people.

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

    • icon
      Uriel-238 (profile), 7 Mar 2018 @ 5:24pm

      "You know, Miss Scarlet, no one specifically mentioned the candlestick."

      What does Trump's dirt have to do with classification inconsistencies? For someone so ready to vouch for Trump's character, you sound not only unconvinced, Anonymous Coward but as if you even know the particulars of the President's wrongdoing.

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

      • identicon
        Anonymous Coward, 8 Mar 2018 @ 9:47am

        Re: "You know, Miss Scarlet, no one specifically mentioned the candlestick."

        I'm not vouching for Trump: I'm doubting those pushing a narrative.

        Oh, and fyi, I didn't vote for Trump. I thought he was a buffoon before the election, and think he still is, but that doesn't at all mean I have to accept being attempted against him and his administration is good, legal, or desirable.

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

        • icon
          Uriel-238 (profile), 8 Mar 2018 @ 10:31am

          "Is there anything else you'd like to deny, Miss Scarlet?"

          My point remains. It's a conspicuous tirade as a comment to an article that has nothing to do with Trump.

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

          • identicon
            Anonymous Coward, 8 Mar 2018 @ 12:18pm

            Re: "Is there anything else you'd like to deny, Miss Scarlet?"

            Nothing to do with Trump?

            That's utterly specious.

            While this specific case has nothing to do with the Trump-Russia-collusion-narrative, the issues of this case closely mirror what was done in order to create the narrative and momentum needed to open investigations into Trump and his "ties" to Russia. Elements of the NSA, CIA, and FBI, such as James Comey himself, leaked accusations from the Steele dossier and other sources to friendly media sources, yet the public doesn't get to see it and judge it for themselves.

            That investigation itself has become a fishing expedition, and it all started from leaks coming out of the NSA, CIA, and FBI.

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

    • identicon
      Anonymous Coward, 8 Mar 2018 @ 7:44am

      Re: It should be obvious to everyone, but the most partisan Trump haters

      The only charges brought against people involved with Trump was for lying to investigators about conversations with Russians and not for the content of those conversations.

      Perhaps because investigators did not have the contents of the conversations. However, lying about the conversations to cover them up sure looks like there was something there, now doesn't it?

      Not only that, the only reason the outgoing administration had any idea those people lied about those LEGAL contacts with Russians,

      The conversations may have been legal, but lying about them wasn't, Ivan.

      was due to the fact the outgoing administration was spying on those people.

      Umm, exactly which administration persons where spying?

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

      • identicon
        Anonymous Coward, 8 Mar 2018 @ 9:44am

        Re: Re: It should be obvious to everyone, but the most partisan Trump haters

        You do realize what the NSA is doing, don't you?

        You do realize what it means to unmask the names of Americans in surveillance data, don't you?

        If there's no recorded conversations, then there's nothing to unmask.

        And drop the "Ivan" bullshit.

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

        • identicon
          Anonymous Coward, 8 Mar 2018 @ 1:41pm

          Re: Re: Re: It should be obvious to everyone, but the most partisan Trump haters

          So, none.

          Talk about bullshit, you seem to be full of it.

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

          • identicon
            Anonymous Coward, 9 Mar 2018 @ 6:06am

            Re: Re: Re: Re: It should be obvious to everyone, but the most partisan Trump haters

            You seem like an obama regime lackey.

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

            • icon
              Uriel-238 (profile), 9 Mar 2018 @ 11:29am

              "Obama regime lackey"

              No-one mentioned him either.

              You're inferring an awful lot from very little. Let's talk more about these crimes you absolutely didn't commit.

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

          • identicon
            Anonymous Coward, 9 Mar 2018 @ 7:56am

            Re: Re: Re: Re: It should be obvious to everyone, but the most partisan Trump haters

            And if you need names... Andrew McCabe comes to mind, who leaked info to reporters, then he lied about it to inspectors, and we still don't have an unredacted look at what he leaked.

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

            • identicon
              Anonymous Coward, 9 Mar 2018 @ 12:13pm

              Re: Re: Re: Re: Re: It should be obvious to everyone, but the most partisan Trump haters

              I figured you'd come out with some kind of bullshit like that.

              Name: Andrew McCabe
              Political party: Republican
              Joined FBI: 1996
              As administration appointee: No
              Highest position attained: Acting Director
              Under which president: Trump

              So, that's your administration spy?
              Not an administration member.
              Not a spy.
              You are *so* full of shit.

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

              • identicon
                Anonymous Coward, 9 Mar 2018 @ 1:47pm

                Re: Re: Re: Re: Re: Re: It should be obvious to everyone, but the most partisan Trump haters

                And I figured you'd come out with some kind of bullshit like that.

                I really don't give a shit what political party he says he supports, because his wife just ran for political office in Virginia as a democrat.

                But whatever. You're just another democRAT, so GFY.

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

  • identicon
    Anonymous Coward, 7 Mar 2018 @ 2:05pm

    The media are the CIA's b*tch

    http://carlbernstein.com/magazine_cia_and_media.php

    THE CIA AND THE MEDIA

    How Americas Most Powerful News Media Worked Hand in Glove with the Central Intelligence Agency and Why the Church Committee Covered It Up

    BY CARL BERNSTEIN

    In 1953, Joseph Alsop, then one of America’s leading syndicated columnists, went to the Philippines to cover an election. He did not go because he was asked to do so by his syndicate. He did not go because he was asked to do so by the newspapers that printed his column. He went at the request of the CIA.

    Alsop is one of more than 400 American journalists who in the past twenty‑five years have secretly carried out assignments for the Central Intelligence Agency, according to documents on file at CIA headquarters. Some of these journalists’ relationships with the Agency were tacit; some were explicit. There was cooperation, accommodation and overlap. Journalists provided a full range of clandestine services—from simple intelligence gathering to serving as go‑betweens with spies in Communist countries. Reporters shared their notebooks with the CIA. Editors shared their staffs. Some of the journalists were Pulitzer Prize winners, distinguished reporters who considered themselves ambassadors without‑portfolio for their country. Most were less exalted: foreign correspondents who found that their association with the Agency helped their work; stringers and freelancers who were as interested in the derring‑do of the spy business as in filing articles; and, the smallest category, full‑time CIA employees masquerading as journalists abroad. In many instances, CIA documents show, journalists were engaged to perform tasks for the CIA with the consent of the managements of America’s leading news organizations.

    ...

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


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