(As reported in the 25^th September 2017 Policy News newsletter of the Ecological Society of America, of which I am a member.)

Daniel Patrick Moynihan, Secrecy: The American Experience, Yale University Press, 1998.

The right to know, amplified at Wikipedia

We do not believe any group of men adequate enough or wise enough to operate without scrutiny or without criticism. We know that the only way to avoid error is to detect it, that the only way to detect it is to be free to enquire. We know that the wages of secrecy are corruption. We know that in secrecy error, undetected, will flourish and subvert.

— J. Robert Oppenheimer, writing in The Bulletin of the Atomic Scientists, quoted by Dr Lawrence M Krauss

Secrecy in science does not work. Withholding information does more damage to us than to our competitors.

— Edward Teller, in Proceedings of the International Conference on Lasers, 1987 (1988), F. J. Duarte (ed.), p. 1165

There are a number of levels of classification in the United States government bureaucracy. These range from military classifications, Unclassified, For Official Use Only, Confidential, Secret, and on up, to various kinds of compartmentalized information, classifications which respect the participation of the United States in NATO, and oddball classifications, such as at the Securities and Exchange Commission, controlling the embargo of information like interest rate increases before they are announced. The statutes and court rulings are pretty clear: In order to classify a piece of information, anyone charged with protecting it must be provided with a copy of a book or document, titled roughly, Classified Document Control Guide, which defines specifically which aspects of something are classified and which are not, and what the levels of classification are. These need to be specific — so people originating classifications know how to mark specific paragraphs in classification level — and they need to be unambiguous. Unknown to most, even some practitioners, it is a crime to classify information at a level higher than it needs to be. Diminishing empires and bureaucracies being what they are, this is seldom prosecuted. There is also supposed to be a declassification timetable attached to each piece of classified information. And there is, at least in principle, a place in government where all these pieces of classified information are tracked.

From time to time there have been attempts at creating flavors of Unclassified information, such as Unclassified But Sensitive, or Administrative Sensitive. My last briefing on these subjects, from attorneys, indicated these flavors were indefensible in court, that there was no provision under the Espionage Act under which they could be enforced, and while Presidential Executive Orders could be issued to make life uncomfortable for people who breached things like Unclassified But Sensitive, in the end, there was no defensible “damage to the United States done” and, so, a violation could not be properly prosecuted under the Act. But I’m no attorney, and perhaps things have changed, in both directions. There are, for example, now Whistleblower Protections embodied in law.

So the idea of EPA personnel being briefed on the protection of “classified information” in the context of the EPA’s work, or, amazingly, “near classified information” is striking. And it has implications. It means that, in essence, objecting to the procedures and policy which a Presidential administration enacts which might, in the opinion of a government employee, be in violation of the law and, therefore, of the Constitution of the United States, can, in principle, be prosecuted with all the heavy apparatus of military secrecy and of the Espionage Act, emboldened as it has been with counter-terrorism emphasis.

There’s always been a hint of this in the wings. J Edgar Hoover of the FBI distrusted any demonstrators for any reason, wiretapping Martin Luther King, and, through the actions and inactions of his agents, causing the death of people protesting for civil rights, including people who in practice and statement were thoroughly committed to non-violent means. It is widely believed, and in some cases documented, that environmental protestors have also been targeted for at least scrutiny, and that this information has been improperly shared with companies targeted for non-violent demonstrations.

So, to me, the idea of briefings forbidding the revelation of “near classified information” is the opening of a gambit which could end in it being declared un-American and illegal for people to not use or burn fossil fuels. That is a big stretch, I know, and extreme, I know, but the idea of imposing some kind of military discipline upon an agency which exists to review and operate in as much a spirit of transparency as it can is a gross violation of the public trust and of the public’s right to know. EPA employees report that Administrator Pruitt has armed guards, and that no one is allowed to record or take notes or cell phones or computers when they meet with him. Apart from that being fundamentally in conflict with the operation of an agency which, by statute, is required to be open and available, there is such a thing as the Government Records Act, and all meetings at the highest levels are supposed to be recorded, at least for posterity.

Accordingly, these reports are alarming, at least. Does the EPA have an Judicial Advocate office like military services do? I do not believe they do.

Maybe they should.

And perhaps, in addition to expressing concerns about policy, environmental organizations and advocates ought to be concerned about governmental process.

Update, 2017-09-26, 18:06 EDT

What `near classified` involves is described here. It turns out `near classified information` is `controlled unclassified information`. Information is classified if its release does harm to the United States. But the memorandum in question creates a new category of information `United States Government information`, a category which suggests that there is information which is the property of the United States government and no one else, no matter how it was derived. It also fails to answer the question of exactly who is harmed should such information be revealed? Is the United States harmed? If so, why isn’t the information classified? If the United States is not harmed, are officials harmed? Why should they be protected, or their deliberations shielded from public scrutiny? If officials are not harmed, are they inconvenienced by revelations? If officials are not harmed, is it that there’s a desire there be no deliberation regarding these issues?

So what exactly is this `controlled unclassified information` about? Is it possible to prosecute someone for revealing it? Under what statute?