U.S. spy agency’s push for secrecy seen as another failing of Obama’s transparency pledge

05/07/2014 11:44 AM

05/07/2014 11:44 AM

Intelligence officials are pushing to classify as secret certain information about lie detectors that they believe U.S. adversaries might use to harm national security, even though much of it has been available to the public for decades.

The effort has sparked an internal debate among defense and intelligence officials over whether the government has the authority to classify the information under current policy, especially since much of the information is now easily accessible on the Internet, according to internal documents and interviews conducted by McClatchy.

The Defense Intelligence Agency wants the government academy that trains all federal polygraphers to “conceal most of what it does,” including its teachings and research on polygraph-beating techniques, according to internal academy documents obtained by McClatchy. The DIA cites the need to “deny adversaries of any information which might be used against U.S. interests,” the documents say. The DIA and 26 other federal agencies polygraph tens of thousands of people a year for jobs, security clearances and in some cases in criminal investigations.

The academy, which was established in 1951, has proposed classifying some of its records but not all of them, pointing out that it has “operated in the unclassified domain for virtually its entire existence,” according to a draft of the proposal.

“This is a fool’s errand,” warned Charles Honts, a former government polygraph researcher with the academy who is now a psychology professor at Boise State University. “It’s not only unwise, but it will do little to protect national security. You just can’t put this stuff back in the box.”

The controversy is the latest example of how the Obama administration has fallen short in its goal of “creating an unprecedented level of openness” in government. Despite President Barack Obama’s early pledge to increase transparency, the administration nonetheless has continued to assert the need for secrecy for publicly available, unclassified or routine information, especially in the realm of national security.

Earlier this month, Justice Department lawyers won a court fight to keep secret an Obama administration memo that asserts that the FBI can obtain certain telephone records without any formal legal process. That controversial legal opinion was revealed by the Justice Department inspector general four years ago.

National Security Council spokeswoman Caitlin Hayden said the administration discloses as much information as it can “consistent with the requirements of national security.”

Director of National Intelligence James R. Clapper has declassified about 2,000 pages of documents related to the National Security Agency’s programs after Edward Snowden’s leaks revealed the agency had collected the email and telephone records of tens of millions of Americans and foreigners. Intelligence officials previously had refused to publicly release such documents.

“This administration has taken an unprecedented series of steps to disclose the details of our counterterrorism and intelligence policies and the legal justifications for them,” Hayden said. “And we’ll continue taking further steps moving forward.”

When asked about the polygraph matter, the DIA said it couldn’t respond to specific questions because it involved “internal deliberations.”

The agency added, though, that it follows Defense Department policies on classification.

“Of note, public availability of information and enemy utilization are often factors in making classification determinations,” the agency said in a statement.

Steven Aftergood, director of the nonprofit Federation of American Scientists’ Project on Government Secrecy, said the information should not be classified because it is “manifestly outside the control of the government.” In his 2009 executive order, President Obama told agencies to classify information only if certain conditions are met, including that the information is “owned by” or “is under the control” of the U.S. government.

“This is the perfect illustration of the subjective nature of classification policy,” Aftergood said of the polygraph matter, adding that agencies’ decisions can be “arbitrary, self-serving and ineffective.”

The DIA has persisted in its efforts to classify the polygraph information even though Defense Department officials opined early last year that the material could not be classified under current policies, according to records obtained by McClatchy.

Separately, the polygraph academy, known as the National Center for Credibility Assessment, has noted “there is almost nothing about the polygraph . . . that remains to be classified.”

Yet officials there have appeared to relent, proposing that some information be made secret, including the techniques of polygraph testing used by each federal agency. Details related to detecting polygraph-beating techniques would not be classified but considered sensitive, according to a draft memo. That way, local police officers could be trained by federal officials, they said, but disclosure of the information to the media or foreign governments would be prohibited.

Some government officials questioned whether any foreign government would be interested in the material, given extensive public knowledge of it.

“This is driven by personalities and not rationality,” said one federal security official with knowledge of the debate, who asked not to be identified for fear of being retaliated against for speaking to the press. “This information is all listed on the Internet. This is not a secret. The Russians and the Chinese know about this. Reporters know about this.”

One website, antipolygraph.org, has become so well known for posting leaked federal documents on polygraph programs that U.S. officials sometimes check it for the most up-to-date government information.

George Maschke, the owner of the site, said the government should be encouraging more open debate and independent research about polygraphs, not stifling it. Polygraph testing is already widely questioned as unreliable by scientists and not permitted as evidence against defendants in most criminal cases.

“Classification of polygraph research and development will lead to more bad science, undermining America’s national security and public safety,” Maschke said.

In a separate case, the DIA also has insisted on secrecy for publicly available facts in a legal dispute over a book.

Retired Army Reserve intelligence officer Anthony Shaffer’s book about U.S. policies in Afghanistan has appeared online and has been written about extensively by the media. However, the DIA has maintained that certain well-known facts are classified, such as the name of one actor in the 1972 movie “Deliverance,” according to Shaffer’s lawsuit. The actor, Ned Beatty, apparently resembled an intelligence officer Shaffer knew.

The Justice Department is defending the DIA’s stance. Meanwhile, one of the top DIA officials involved in the Shaffer case is also involved in the effort to classify the polygraph information.

“Why isn’t the Justice Department saying, ‘You want this classified? That’s ridiculous,’” asked Shaffer’s lawyer, Mark Zaid. “The high-level officials should be drawing the line in the sand and they’re not doing it.”

In several noteworthy instances, the administration’s first impulse appears to be of secrecy rather than openness.

In 2010, U.S. agencies warned their workers not to read secret cables posted online by WikiLeaks, declaring that “classified information, whether or not already posted on public websites or disclosed to the media, remains classified.”

While Obama’s executive order the previous year noted that not all leaked information should be unclassified, it also declares “if there is significant doubt about the need to classify information, it shall not be classified.”

The CIA, nonetheless, battled in court for two and a half years to keep documents under wraps that a judge determined in August were routine and inappropriately withheld from a nonprofit law firm. Apparently undeterred by the ruling, the CIA reiterated the same legal arguments last week in another case in an attempt to withhold similar information.

In yet another court dispute, government lawyers have asserted that an unclassified presidential directive should not be disclosed. That insistence prompted a federal judge in December to order them to release the directive and accuse the government of appearing to “adopt the cavalier attitude that the president should be permitted to convey orders throughout the executive branch without public oversight.”

The White House also refuses to release key details of the aerial drone program, such as the procedures used to select targets, since Obama painted a broad outline of the operations in a May 2013 speech at the National Defense University. Human rights organizations and the media, however, have reported extensively on the number of people believed to have been killed, including the number of civilians.

Zaid has challenged intelligence agencies’ classification decisions for more than two decades. But he doesn’t think the Obama administration was any worse than any other.

“It’s just that his administration isn’t discernibly better,” he said. “The problem is that the Obama administration pledged so much and has delivered so little.”

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