The Foreign Service Journal, June 2014

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.