A White Paper Submission to the PIDB:
Section 102(d)(3) of the National Security Act of 1947 (1) makes the Director of National Intelligence responsible for protecting intelligence sources and methods from unauthorized disclosure. The director has “very broad authority to protect all sources of intelligence information from disclosure.”(2)
As has been regularly noted, though, almost anything can serve as an intelligence source or method, including a subscription to the daily newspaper. And we have had confirmation since 2013 that assertions—that classified methods were so intertwined with policy discussions that the documents (in particular FISC orders) could not possibly be declassified, even in a redacted form—were not true. They could not be declassified—until they were.(3) Bulk collections of US persons communications records were declared unconstitutional by a three-judge panel for the United States Court of Appeals for the Second Circuit. The FISC has also found in several cases that the government’s surveillance, classified as a method, was unlawful.
Executive Orders on National Security Classification have routinely extended the permission to classify intelligence sources and methods. It is instructive to note that a predecessor order, EO 11652, issued by President Nixon in 1972, gave concrete examples of the sort of potential damage resulting from disclosure that would justify a “Top Secret” classification of the information to be withheld: “… the compromise of vital national defense plans or complex cryptologic and communication intelligence systems; the revelation of sensitive intelligence operations; and the disclosure of scientific or technological developments vital to national security.”(4)
The overbroad terminology and lack of specificity in subsequent Orders has given broad rein to the Intelligence Community. Indeed, twenty-five years later Senator Patrick Moynihan addressed this same issue in the 1997 Moynihan Commission report:
Underlying the rationale of “sources and methods” as the reason that information is kept secret is not the content of the information itself, but instead the way it was obtained. Yet the public and historians generally do not care how the information was collected; they want to know how it was used and what decisions it informed. Too often, there is a tendency to use the sources and methods language contained in the National Security Act of 1947 to automatically classify virtually anything that is collected by an intelligence agency–including information collected from open sources.
… Clarification through issuance of a directive by the Director of Central Intelligence of the scope of and reasons for sources and methods protection would still ensure that sensitive information stays secret. At the same time, such a directive explaining the appropriate scope of that protection would help prevent the automatic withholding of all information that might relate in any manner, however indirectly, to an intelligence source or method.
National security classification should protect our democracy, not shield government actions that – too often consciously and deliberately – go around democratic practices and subvert constitutional protections. The vagueness and un-delimited scope of classified “intelligence methods” needs to be rectified in the next Executive Order to ensure that it does not permit these uses.
(1) 50 U.S.C.§ 403(d)(3)
(2) Central Intelligence Agency v. Sims, 471 U.S. 159, 168-169 (1985).
(4) see http://www.fas.org/sgp/library/quist2/chap_7.html