The Foreign Service Journal - June 2014 - page 18

18
JUNE 2014
|
THE FOREIGN SERVICE JOURNAL
Hurry Up and Wait
The duration of the review remains
one of the largest problems in the pro-
cess. According to 3 FAM 4172.1-5, the
review process is “not to exceed 30 days.”
But in reality, neither the Bureau of Pub-
lic Affairs nor the Bureau of Administra-
tion adheres to that regulation, although
they often try to act in good faith on it.
In cases where State does not get
back to the employee within that
time frame, 3 FAM 4172.1-7 says: “An
employee may use, issue or publish
materials on matters of official concern
that have been submitted for review,
and for which the presumption of pri-
vate capacity has not been overcome,
upon expiration of the designated
period of comment and review regard-
less of the final content of such materials
so long as they do not contain infor-
mation that is classified or otherwise
exempt from disclosure as described in
3 FAM 4172.1-6(A).”
Nonetheless, if you do publish mate-
rial before the review is complete, you
must be absolutely sure that no piece of
information can be interpreted as classi-
fied—and be aware that you proceed at
your own (potentially great) risk.
It is important to note that deter-
mining whether material is classified
is often not as clear-cut as it may seem.
Fifteenth-century European history is
clearly not classified, while the location
of U.S. nuclear weapons unequivocally
is. But what about drones? What about
the information disclosed by WikiLeaks
or Edward Snowden? When does an
event transition from a current issue to a
historical case study?
In an open, democratic society with
a very active and capable press, many
pieces of information may be publicly
available but remain sensitive or classi-
fied. There are no easy answers to these
questions, and they often need to be
addressed in context on a case-by-case
basis.
The More, the Merrier
Once the material is submitted, the
reviewing office distributes it to other
offices and internally clears on it. Who
gets to clear the material is solely within
the purview of the reviewing office, but it
is in this exercise of authority where the
most can go wrong.
Within the State Department, the
process for clearance typically falls to
the regional desk and other offices with
“equities”—a purposefully imprecise
and vague term that can be bent to mean
anything. In other words, no clear and
specific guidelines exist that specify who
has the authority to determine whether
information is classified.
More often than not, the desk officer
reviewing the material did not work on
the issue being evaluated and therefore
does not have the information to make
a well-informed judgment. Desk tours
typically last just two years, which makes
determinations on issues that occurred
years or decades ago difficult and sub-
jective. It is unfair to put desk officers in
such a position, and equally unfair to the
prospective authors who are only seek-
ing an objective process.
One of the worst-case scenarios is
that the reviewing office determines that
interagency clearance is necessary. Not
surprisingly, that process is a black hole
where acquiring information is practi-
cally impossible and each agency uses
different—and often conflicting—pro-
cesses and standards to determine if
material is classified. The State Depart-
ment’s 30-day rule also gets thrown out,
even though no regulatory foundation
exists for ignoring it.
Unfortunately, once the State Depart-
ment distributes the material to other
agencies, it voluntarily gives up its
authority to make a final judgment on
what is classified, even though it still
technically “owns” the process. And
if some other agency determines that
something is classified—even if that
notion is completely ridiculous—the
State Department will not overrule it.
My Experience
In addition to being cleared in a num-
ber of offices at the State Department,
my manuscript was sent for clearance
to the Central Intelligence Agency, the
Department of Defense and the National
Security Council. The CIA utilizes a Pub-
lication Review Board, while the Defense
Department has an Office of Security
Review; each has its own guidelines and
appeals processes.
Getting through the interagency and
State Department pre-publication clear-
ance processes took me a full year: from
Oct. 22, 2012, to Oct. 23, 2013. My manu-
script came back after months of delay
with hundreds of redactions from the CIA
and DOD. I appealed every redaction and
In a democratic society with a very
active and capable press, many pieces
of informationmay be publicly available
but remain sensitive or classified.
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