Robert Mac Lean - Abuse of Unclassified Information Markings

Abuse of Unclassified Information Markings

John Podesta, Co-Chair of the Presidential transition of Barack Obama team and President & CEO of the Center for American Progress, testified before congress on September 16, 2008 regarding secrecy reform.:

Over the past seven years, the American people have come to understand what meant. During this period, the Bush administration has increased secrecy and curtailed access to information through a variety of means, including by:

  • Threatening journalists, whistleblowers, and other private citizens with criminal prosecution for the possession or publication of national security information; and perhaps most egregious of all, the issuance of secret orders and legal opinions to shield illegal actions from public scrutiny

Mark D. Agrast, then a Senior Fellow for the Center for American Progress cited Robert MacLean's case during his June 28, 2007 congressional testimony titled, "Over-Classified and Pseudo-Classified":

ederal air marshal blew the whistle when TSA attempted to reduce security on “high risk” flights, and the agency retaliated by retroactively designating the material he had disclosed as Sensitive Security Information.

A June 2006 report from the U.S. Government Accountability Office (GAO) titled "Clear Policies and Oversight Needed for Designation of Sensitive Security Information (SSI), "criticized TSA's monitoring controls.

Monitoring Controls Are Weak.... Specifically, TSA has not established and documented policies and internal control procedures for monitoring compliance with the regulations, policies, and procedures governing its SSI designation process, including ongoing monitoring of the process.

The GAO report cited an October 14, 2004, memorandum designed to centralize the administration of SSI within the TSA. The memo indicated that TSA’s Internal Security Policy Board recognized that the handling and identification of SSI had become problematic:

Lacking a central policy program office for has led to confusion and unnecessary classification of some materials as SSI. Adherence to handling requirements within TSA has been inconsistent, and there have been instances where SSI has been mishandled outside of TSA. Identification of SSI has often appeared to be ad-hoc, marked by confusion and disagreement depending on the viewpoint, experience, and training of the identifier. Strictures on the release of SSI and other SSI policy or handling–related problems have occasionally frustrated industry stakeholders, Congress, the media, and our own employees trying to work within the confines of the restrictions. Significant time and effort has been devoted to SSI issues, and it is not likely that the current approach to addressing such issues can be sustained.

In a September 28, 1988 United States House of Representatives “Committee on Government Operations” report, Senator Barbara Boxer (then member of the House) warned Congress and the public about unclassified information markings being abused to prevent whistleblower from making disclosures. The Ronald Reagan Administration's attempt to define 'classifiable' holds employees liable for disclosures of unclassified information, without any prior notice to them of its special status. Under Executive Order 12356, classified information is marked as such. Even information that is in the process of a classification determination is given an interim classification marking for a 30-day period. The employee is, therefore, aware of its special status. Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the disclosure. That invites a chilling effect. As Congresswoman Boxer noted at the hearings:

I am concerned this will force would-be whistleblowers to have to ask their superiors about classification determinations. This would act to stop the whistleblower.

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