The Central Intelligence Agency has improperly classified and withheld from release at least five categories of information related to its post-9/11 rendition, detention and interrogation program, according to a detailed complaint filed by Openthegovernment.org with the Information Security Oversight Office. Classification of this information has impeded government accountability for the controversial CIA programs and derailed a full public reckoning over abuses that occurred, the complaint said.
“Secrecy regarding ‘black sites’ and torture has played a major role in ensuring that no CIA personnel could be prosecuted for torture, war crimes, destruction of evidence, or other relevant federal crimes. It has ensured that civil courts were closed to victims of torture, indefinitely delayed trials of the accused perpetrators of the September 11 attacks, and put the United States in breach of its obligations under the Convention Against Torture,” wrote Katherine Hawkins, National Security Fellow at Openthegovernment.org, who authored the complaint.
She specified five categories of information that she said had been classified in violation of the executive order governing classification policy and redacted from the summary of the Senate Intelligence Committee report on interrogation:
The 38-page complaint presents extensive arguments that certain particular information in each of these categories was improperly classified by the CIA. “There is strong evidence that classification of evidence regarding the torture program violated the Executive Order, in some cases willfully so,” Ms. Hawkins wrote. “It is important that there be consequences for this abuse of the classification power to deter similar violations in the future. But it is even more important that the cover-up end, and that ISOO act to oversee ongoing CIA classification decisions regarding the rendition, detention and interrogation program.”
John P. Fitzpatrick, the director of the Information Security Oversight Office (ISOO), which oversees the classification system, said his office has already begun “digging into the complaint in detail…. I don’t yet know what level of effort this will require.” Under Executive Order 13526 (section 5.2(6)), the ISOO director is authorized and required to “consider and take action on complaints and suggestions from persons within or outside the Government with respect to the administration of the [classification] program established under this order.”
As a practical matter, ISOO’s capacity to investigate classification errors is limited by the Office’s size and budget. Nevertheless, Mr. Fitzpatrick said, “handling complaints like this is part of our mission, so we will have to see what can be done.” The immediate next steps, he said, include identifying the specific claims advanced by the complaint and the parts of the executive order they may relate to; gathering relevant facts that would support or refute the claims; and performing analysis to reach a conclusion. Considering the length and detail of the complaint, reviewing it “will take time.”
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If there is a systemic solution to the problem of overclassification, it is likely to involve the kind of independent review that has been urged on ISOO by Openthegovernment.org in this case. Government agencies that are left to their own devices will almost always classify more information than is necessary or appropriate. Without assuming any malign intent on their part, it is simply the path of least resistance. However, when an agency is required to justify its classification activity to an impartial reviewer, even on a non-adversarial basis, a reduction in the scope of classification results more often than not. This has been confirmed repeatedly.
Between 1996 and 2014, the Interagency Security Classification Appeals Panel directed the declassification of information in 71 percent of the documents presented to it by members of the public whose direct requests to agencies had been denied, ISOO reported in 2014.
Documents concerning covert actions that the CIA had refused to acknowledge on its own were approved for declassification and publication in the Foreign Relations of the United States series after deliberation by the so-called High-Level Panel composed of representatives of the National Security Council, State Department and CIA.
CIA classification of many records related to the JFK assassination could not withstand review by the independent Assassination Records Review Board. The Board ordered declassification of tens of thousands of assassination-related records including millions of pages.
Even within individual agencies, the process of challenging classification decisions has borne fruit to a surprising extent. Government employees challenged the classification status of various items of information in 813 cases in FY2014, the Information Security Oversight Office reported. Their classification was overturned in whole or in part in 453 of those cases. It follows that new venues and new procedures for independently evaluating disputed classification decisions would help to reduce or eliminate spurious classification.