CNN Security Clearance

Deadly drones and the classified conundrum

By Suzanne Kelly

The high-powered U.S. aerial delivery system of Hellfire missiles to suspected terrorist targets overseas has to be the worst kept secret in Washington. Better known as the "drone program," there are lingering questions over whether the program that is no longer secret remains "classified."

The president's assistant for homeland security and counterterrorism, John Brennan, publicly acknowledged the program last month, and offered more detail than anyone previously regarding the administration's rationale for the use of drones.

"Yes, in full accordance with the law - and in order to prevent terrorist attacks on the United States and to save American lives - the United States government conducts targeted strikes against specific al Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones," Brennan told a crowd at the Woodrow Wilson Center, a prestigious think tank in Washington.

But the drone program, despite being a horribly-kept secret, is a classified program. So the question is, by publicly acknowledging the use of drones, even going into detail about why the United States uses them, was Brennan also delivering a message from the president that the program had been declassified?

After all, here was the president's top counterterrorism adviser saying, in effect, "Yeah, we do that."

The question is whether such a public acknowledgment about a program that was classified thereby makes the program "declassified."

There is a formal, technical process for declassifying information, but the president isn't obligated to follow a paper trail, according to Washington lawyer Jeffrey Smith, who currently sits on the external advisory board for the director of Central Intelligence, and is former general counsel for the CIA.

According to Smith, the president can simply declare that something is declassified and, poof, it is declassified. The hard part is understanding whether there has been a "poof."

"The classification system is based entirely on an executive order from the president; there is no statutory authority for this. The president sets the criteria for classification and for declassification," says Smith.

So if the president's chief counterterorrism adviser gives a public speech explaining why the United States chooses to engage in a targeted drone program overseas, and even talks about the internal debate over the use of such program, that acknowledgment alone sends a very confusing message to others in the intelligence world, not to mention the rest of the world.

"There can be confusion, and this is part of the insidious nature of this business," says Smith, who added that, generally speaking, "Once something has been officially declassified and put into the public record by a speech, then whatever is in the four corners of that speech is declassified, but there is no notice that goes around to the government that says, 'This has been declassified.' It is just understood."

A senior congressional official sees it the same way, saying he believes the drone program has been declassified because of the public nature of Brennan's speech.

"I would assume that John Brennan is not just winging it, and that his comments reflected a decision by the president to say what he said," said the official, who asked to remain anonymous because of the sensitivity around the issue.

"To the degree that he discussed drone programs, I would consider that to be declassified."

"There is confusion outside the government, there is confusion inside the government," says Steven Aftergood, director of the government secrecy program with the Federation of American Scientists. "This is (a) very bureaucratized system which means it follows set rules, but it doesn't necessarily follow what you and I would call common sense."

So common sense might be that a prepared speech, delivered publicly because the administration wants to provide more "transparency" into such program, might mean that the program is no longer classified.

"This was not a surreptitious encounter with a journalist at a remote location, this was not Scooter Libby meeting with somebody and whispering to them," said Aftergood. He was referring to former Vice President Dick Cheney's chief of staff, Lewis "Scooter" Libby, who was convicted in 2007 in connection with the leaking of CIA officer Valerie Plame's identity - information that was technically classified, though Cheney later implied that information had been declassified.

"This was a public event and to the extent that this was published, presumably it had been vetted, so I guess I would say the contents of the speech are declassified and any official is now authorized to repeat the words that Brennan stated," said Aftergood.

What if the president himself talks about the program publicly? Would that be enough to consider the information declassified?
That's exactly what happened in January during a YouTube-Google forum.

"I think we have to be judicious in how we use drones," said President Obama.

"But understand that probably our ability to respect the sovereignty of other countries and to limit our incursions into somebody else's territory is enhanced by the fact that we are able to (execute a) pinpoint strike on al Qaeda operatives in a place where the capacities of that military in that country may not be able to get them."

Common sense would dictate that might be enough of a reason to consider the information declassified, right?

"There is a formal declassification process" says Fran Townsend, CNN contributor and former homeland security adviser to President George W. Bush. "When Brennan said it, he presumably had vetted his remarks through the White House." That would imply that the president himself had given Brennan permission to speak about the program.

But this is Washington, and just because something makes sense doesn't mean it's right.

"I will tell you, if it were me, I would not talk about it, unless it was formally declassified." says Townsend. "I would quote Brennan on the program, but I wouldn't say it myself, unless the president actually said it to me."

And that seems to be more the path that administration officials have taken since Brennan made the comments last month.

Pentagon spokesman George Little was asked recently about the program and wouldn't comment directly, but chose more general terms instead.

"There is a natural tension between secrecy and openness," said Little. "Those are twin imperatives sometimes in our nation. And so from time to time, on various issues, and I'm not commenting on any particular one issue, we do have those discussions about transparency, and the need to balance transparency against the need or secrecy. I think we've all agreed that there is a need for secrecy on some matters, but to the extent that over time circumstances change - and I'm not predicting anything on a particular issue - we can open the door to more information."

It seems that might be a safer route. When pressed on the question of whether the president intended for the program to be declassified by sending Brennan to explain it publicly, National Security Council spokesman Tommy Vietor said "J(ohn) B(rennan) didn't declassify anything."

"I'm not going to get into internal deliberations, but as a general matter we obviously push to be as transparent as we can while being mindful of our national security equities," said Vietor.

I guess that clears it up.