“Let me tell you, you take on the intelligence community, they have six ways from Sunday at getting back at you. So even for a practical, supposedly hard-nosed businessman, Trump is being really dumb to do this.”
Senate Minority Leader Charles Schumer
“The CIA is spectacularly terrible at responding to FOIA requests. It’s so bad it’s highly possible the perceived ineptness is deliberate. The CIA simply does not want to release documents. If it can’t find enough FOIA exemptions to throw at the requester, it gets creative.”
Tim Cushing — TechDirt (Legal Issues)
“If the CIA loses in this case, the unsavory practice of providing classified information only to sources willing to do the agency’s bidding will be dealt a setback.”
Paul Mirengoff — Powerline
“I suppose it is possible that the Government does not consider members of the press to be part of the public. I do.”
Chief Judge Colleen McMahon — Initial ruling
“A limited disclosure of information to three journalists does not constitute a disclosure to the public.”
Chief Judge Colleen McMahon — Final ruling
James R. Clapper — United States Director of National Intelligence aka the Leaker-in-Chief
January 16 2019 — Can Intelligence officials ‘legally’ disclose classified information to members of the press? From a legal point of view, the answer is a bit tricky, but the office of the DNI believes that it is legal in some circumstances. What is certain is that they are doing it quite often! Whenever it suits them… Follow us on Twitter: @Intel_Today
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According to a National Security Agency report to Congress that was released recently under the Freedom of Information Act, US Intelligence officials have ‘educated’ members of the press on at least three occasions in 2013. Explanation…
Executive Order 13526 , section 4.2(b), states that:
“In an emergency, when necessary to respond to an imminent threat to life or in defense of the homeland, the agency head or any designee may authorize the disclosure of classified information […] to an individual or individuals who are otherwise not eligible for access. (…)
For purposes of this section, the Director of National Intelligence may issue an implementing directive governing the emergency disclosure of classified intelligence information.”
Past cases (2013) — In one case, classified information was disclosed:
“in order to correct inaccurate understandings held by the reporter…”
In a different case, classified information was disclosed:
“in an effort to limit or avoid reporting that could lead to the loss of the capability …”
Generous Interpretation — Notice that ‘Executive Order 13526’ does not mention the press at all. But obviously the US IC considers that, in some cases, there is an emergency “to correct inaccurate understandings held by a reporter.”
Are CIA Disclosures To One Are Disclosures To All?
The CIA claims that it can hand over classified information to some — ‘very friendly’ — journalists and still pretend the information has not been made public.
In February 2018, Chief Judge Colleen McMahon just made it clear and simple for the Agency: “You cannot have your cake and eat it too.”
In a stunning reversal of her initial position, Chief Judge Colleen McMahon has finally ruled in favour of the CIA.
“The Director of Central Intelligence is free to disclose classified information about CIA sources and methods selectively, if he concludes that it is necessary to do so in order to protect those intelligence sources and methods, and no court can second guess his decision,” wrote Chief Judge Colleen J. McMahon of the Southern District of New York in a decision in favor of the CIA
But two months later, in her final ruling, Judge McMahon accepted, as the CIA argued in a February 14 brief, that:
“A limited disclosure of information to three journalists does not constitute a disclosure to the public. Where, as here, the record shows that the classified and statutorily protected information at issue has not entered the public domain, there is no waiver of FOIA’s exemptions.”
“For something to be ‘public,’ it has to, in some sense, be accessible to members of the general public. Selective disclosure of protectable information to an organ of the press… does not create a ‘truly public’ record of that information.”
Earlier in the case, Judge McMahon had expressed the exact opposite view. The ruling is a serious defeat for the FOIA.
Indeed, the practice of selective disclosure allows the government to hypocritically release sensitive national security information when it suits its public relations interests without fear of being held to its own standard later.
REFERENCES
Executive Order 13526 of December 29, 2009
Court Rules in Favor of Selective Disclosure — Secrecy News (April 30 2018)
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One Year Ago — “Trump Dossier”: Can Intelligence officials ‘legally’ disclose classified information to members of the press?
Can US Intelligence officials legally disclose classified information to members of the press?
Intel Today 