DOD Officials Acted in Accordance With Executive Order for
Addressing Security Classification Concerns (12-JUN-01,
GAO-01-737R).
This report investigates whether the Department of Defense (DOD)
misused the security classification process to stifle public
discussion of problems with the National Missile Defense System.
On May 11, 2000, Dr. Theodore Postol reported an alleged incident
of fraud to John Podesta, former White House Chief of Staff. Dr.
Postol wrote a letter which alleged scientific fraud by
contractors involved in developing the National Missile Defense
system for DOD's Ballistic Missile Defense Organization (BMDO).
The letter contained Dr. Postol's analysis of public data and
extracts from documents he used to reach his conclusion. BMDO's
decision to classify Dr. Postol's letter prompted him to write
another letter to Mr. Podesta complaining that the classification
was an attempt to restrict his public exposure of scientific
fraud. Dr. Postol wrote a third letter to Mr. Podesta complaining
that an unscheduled visit by the Defense Security Service (DSS)
was an attempt to intimidate him and violate his First Amendment
rights. GAO found that DOD's decision to conduct a security
classification review was performed in accordance with Executive
Order 12958. Similarly, BMDO's subsequent request that DSS
contact Dr. Postol to discuss concerns that his letter contained
classified information was made in accordance with DOD's
regulations. The discovery by BMDO officials that the documents
enclosed with Dr. Postol's letter were similar to classified DOD
documents prompted the security classification review and DSS
visit to Dr. Postol.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-01-737R
ACCNO: A01216
TITLE: DOD Officials Acted in Accordance With Executive Order
for Addressing Security Classification Concerns
DATE: 06/12/2001
SUBJECT: Classified defense information
Department of Defense contractors
Executive orders
Fraud
Information leaking
Security classification (government
documents)
Whistleblowers
DOD National Missile Defense System
******************************************************************
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GAO-01-737R
GAO- 01- 737R DOD Security Classification United States General Accounting
Office
Washington, DC 20548
June 12, 2001 The Honorable Edward J. Markey House of Representatives
Subject: DOD Officials Acted in Accordance With Executive Order for
Addressing Security Classification Concerns
Dear Mr. Markey: This letter responds to your request that we investigate
whether the Department of Defense (DOD) misused the security classification
process to stifle public discussion of possible problems with the National
Missile Defense system. Your concern was the result of events that started
with a May 11, 2000, letter that Dr. Theodore Postol, Professor of Science,
Technology, and National Security Policy, Massachusetts Institute of
Technology, wrote to John Podesta, the then White House Chief of Staff. That
letter alleged scientific fraud by contractors involved in developing the
National Missile Defense system for DOD?s Ballistic Missile Defense
Organization (BMDO) and included Dr. Postol?s analysis of public data on the
National Missile Defense system and extracts from documents he used to reach
his conclusion. When Dr. Postol learned unofficially that BMDO was
classifying his May 11 letter, he wrote a second letter to Mr. Podesta,
dated May 19, 2000, in which he complained that the classification was an
attempt to restrict his public exposure of scientific fraud. A third letter
from Dr. Postol to Mr. Podesta dated June 21, 2000, described how three
Defense Security Service investigators made an unscheduled visit to his
office in what he characterized as an attempt to intimidate him and violate
his First Amendment rights. Dr. Postol said they told him that DOD was
concerned that some of the information contained in the May 11 letter was
classified.
We conducted our investigation between July and September 2000 in accordance
with investigative standards established by the President?s Council on
Integrity and Efficiency. We reviewed pertinent documentation and
interviewed Dr. Postol and representatives of BMDO and Department of
Justice. We also interviewed representatives of DOD?s Office of the
Inspector General; Defense Criminal Investigative Service; Office of
Command, Control, Communications, and Intelligence; and Defense Security
Service. We briefed your office on the results of our investigation. In
addition, we are currently conducting a separate review of the allegations
concerning scientific fraud.
In brief, DOD?s actions included performing a security classification review
and determining that portions of the documentation enclosed with Dr.
Postol?s
GAO- 01- 737R DOD Security Classification Page 2 May 11, 2000, letter to Mr.
Podesta contained derivatively classified information. 1
DOD?s actions were performed in accordance with Executive Order 12958.
Similarly, BMDO?s subsequent request that the Defense Security Service
contact Dr. Postol to discuss concerns that his letter contained classified
information was made in accordance with DOD?s regulations. We learned that
the source of the documents enclosed with Dr. Postol?s May 11 letter was a
former employee of a DOD contractor involved in the development of the
National Missile Defense system. The former contractor employee, who had the
required security clearances and was prosecuting a Qui Tam complaint 2 at
the time, obtained poorly redacted documents from the Defense Criminal
Investigative Service that were not properly handled. The discovery by BMDO
officials that the documents enclosed with Dr. Postol?s letter were similar
to classified DOD documents prompted the security classification review and
the Defense Security Service visit to Dr. Postol.
Redacted Documents Provided to Dr. Postol
In 1996, Dr. Nira Schwartz, a former employee of a DOD contractor involved
with developing the National Missile Defense system, filed a Qui Tam
complaint against her former employer. The Department of Justice and Defense
Criminal Investigative Service investigated the allegations raised in Dr.
Schwartz?s complaint, and Dr. Schwartz cooperated. In response to a request
from the Defense Criminal Investigative Service, BMDO contracted with a
consultant group to review certain concerns raised by Dr. Schwartz. The
contractor provided a classified draft report of its findings to BMDO in
September 1998, and BMDO provided a copy of the draft report to the Defense
Criminal Investigative Service case agent. That agent provided redacted
versions of the draft report and other classified documents to Dr. Schwartz.
Dr. Schwartz had a security clearance and reviewed the classified documents,
but she wanted to be able to use the documents at home. The agent, who has
since retired, told us that he attempted to redact all classified
information from the documents before he provided them to Dr. Schwartz. DOD
officials informed us that classified national security information that is
inadvertently released into the public domain does not automatically become
declassified.
In January 1999, the contractor issued a classified final report. The
Defense Criminal Investigative Service case agent told us that he reviewed
his copy of the report, copied those pages that differed from the draft
report, and attempted to redact classified information from them. He then
faxed the redacted pages directly to Dr. Schwartz. DOD?s Office of Inspector
General officials told us that the agent did not follow the prescribed
classification guidelines for sanitizing classified documents, which require
that the cognizant classification authority review redacted documents. In
this instance, BMDO should have been, but was not, provided the documents
for review.
1 Derivative classification entails incorporating, paraphrasing, restating,
or generating in new form information that is already classified and marking
the newly developed material consistent with the classification markings
that apply to source information. 2 A Qui Tam complaint is an action brought
by a party under a statute that establishes a penalty for the
commission of a certain act and provides that the penalty shall be
recoverable in a civil action; part of the penalty recovered goes to the
person who brought the action and the remainder goes to the government.
GAO- 01- 737R DOD Security Classification Page 3 In March 2000, Dr.
Schwartz?s allegations were the topic of an article in the New York Times. 3
Having read the article, Dr. Postol invited Dr. Schwartz to a workshop at
the
Massachusetts Institute of Technology in April 2000. Dr. Schwartz made a
presentation concerning her allegations about the National Missile Defense
system to workshop participants and provided Dr. Postol documents in support
of her claims. According to Dr. Postol, these documents included the
contractor?s redacted draft report and the redacted pages from the final
report that Dr. Schwartz had received from the Defense Criminal
Investigative Service case agent.
The Derivative Classification Was Conducted in Accordance With Executive
Order
Dr. Postol provided a copy of his May 11, 2000, letter, which included a
copy of the redacted report he received from Dr. Schwartz, to DOD?s Director
for Operational Test and Evaluation and to a U. S. Army engineer, an
acquaintance of Dr. Postol. Dr. Postol informed us that the Army engineer
told him he had provided a copy of the letter and redacted report to the
Deputy Director of Systems Integration for BMDO. On May 12, the Director for
Operational Test and Evaluation provided Dr. Postol?s May 11 letter to the
Director of BMDO, who asked his staff to prepare a response. The staff told
us that this was BMDO?s normal process. The staff also told us that when
they initially reviewed the letter, they noted similarities between the
documents enclosed with the letter and certain classified DOD documents. The
staff, therefore, referred the matter to BMDO?s Office of Security,
Counterintelligence, and Information Assurance. The staff also said that
they believed Dr. Schwartz could have been the source of the redacted
documents enclosed with Dr. Postol?s letter when they read the May 19, 2000,
Los Angeles Times article that reported an April 2000 meeting between Dr.
Schwartz and Dr. Postol.
BMDO?s Office of Security, Counterintelligence, and Information Assurance
conducted a security classification review of the May 11 letter, which, in
accordance with Executive Order 12958, C lassified National Security
Information, resulted in a derivative classification. The result was
provided to BMDO senior leadership. BMDO officials told us that the letter
and its enclosures represented a poor attempt to redact classified
information from the contractor?s report.
Defense Security Service Notified Dr. Postol of BMDO?s Concerns
Officials of BMDO?s Office of Security, Counterintelligence, and Information
Assurance concluded that DOD had no existing contractual relationship with
Dr. Postol and that they, therefore, had no jurisdiction to discuss with Dr.
Postol their concerns that the May 11 letter contained classified
information. However, Dr. Postol had current security clearances under the
National Industrial Security Program, which is administered by the Defense
Security Service. 4 Therefore, on May 22, 2000, BMDO?s Office of Security,
Counterintelligence, and Information Assurance requested that the Defense
Security Service initiate an Administrative Inquiry into the source of the
documents that Dr. Postol enclosed with his May 11 letter to
3 On March 29, 1999, the Department of Justice filed its declination notice
with the court, indicating that it would not intervene in Dr. Schwartz?s Qui
Tam complaint. 4 DOD Regulation 5220.22- R, para. 1- 101c.
GAO- 01- 737R DOD Security Classification Page 4 Mr. Podesta. 5 This request
was put in writing on May 23, 2000. The Defense Security
Service agreed to contact Dr. Postol and on May 23 directed its Boston Field
Office to do so. The Chief of the Boston Field Office telephoned Dr. Postol
on May 26 and left a message asking that he return the call. Later that day,
BMDO and Defense Security Service headquarters agreed to delay further
attempts to contact Dr. Postol so that BMDO could conduct an additional
review of the documents enclosed with the May 11 letter. The Boston Field
Office was told not to have any contact with Dr. Postol until the additional
review was completed.
On June 16, 2000, after BMDO completed the additional review, the Defense
Security Service and BMDO agreed that an Administrative Inquiry was not
necessary based on the information available. In addition, they agreed that
the Defense Security Service would meet with Dr. Postol, in accordance with
a DOD regulation, 6 and provide him with written notice of BMDO?s concerns.
At that time, the Boston Field Office was directed to contact Dr. Postol.
Between June 16 and 20, 2000, the Boston Field Office left messages for Dr.
Postol, and Dr. Postol returned the calls, also leaving messages. On the
morning of June 21, Dr. Postol again called the Boston Field Office and left
a message that detailed his schedule for the next few days. Later in the day
on June 21, three representatives of the Defense Security Service, including
the Chief of the Boston Field Office, visited Dr. Postol at the
Massachusetts Institute of Technology. The visit was unscheduled and lasted
approximately 30 minutes.
Dr. Postol told us that during the meeting, the Defense Security Service
representatives attempted to have him read a classified letter that they
said would put him on notice that the documents enclosed with the May 11
letter contained classified information. Dr. Postol said he refused to read
the document because he believed that doing so would prevent him from
publicly criticizing the National Missile Defense system. Dr. Postol told us
that in mid- May 2000, he was unofficially informed by an acquaintance that
DOD was classifying certain documents used in his May 11 letter to Mr.
Podesta. At that time, he reviewed the documents and determined that there
may have been an inadvertent release of classified information.
The Defense Security Service officials told us that they were unaware of the
message Dr. Postol left the morning of June 21 until after they had met with
him later that day. Dr. Postol told us that he was not happy with the way
the Defense Security Service representatives conducted themselves during the
meeting. 7 He said that based on the representatives? conduct and the
unofficial information he received regarding the alleged classification of
the documents he enclosed with his May 11 letter, he wrote the June 21
letter to Mr. Podesta. The Defense Security Service officials who met with
Dr. Postol on June 21 told us that they believe they conducted themselves
properly during the visit.
5 DOD Regulations 5200.1- R, para. 10- 101f and 5220.22- R, para. 5- 107. 6
DOD Regulation 5200.1- R, para. 10- 105. 7 One of these representatives, the
Chief of the Defense Security Service?s Boston Field Office, was
involved in a previous investigation that involved Dr. Postol. Dr. Postol
informed us that he had a particular dislike for this individual?s conduct
during the previous investigation, which increased his concerns about the
June 21 meeting.
GAO- 01- 737R DOD Security Classification Page 5
Agency Comments
DOD provided comments on a draft of this letter, in which it concurred with
the letter and its findings. DOD provided technical corrections, and where
appropriate, we have made those corrections.
- - - - As arranged with your office, unless you announce its contents
earlier, we plan no further distribution of this letter until 30 days after
the date of the letter. At that time, we will make copies of the letter
available to interested congressional committees and agency officials. We
will also make copies available to others on request. The letter will also
be available at www. gao. gov. If you have any questions about this
investigation, please call me at (202) 512- 7455 or Assistant Director John
Ryan at (202) 512- 6722. Senior Analyst Shelia James and Senior Attorney
Peter Iannicelli made key contributions to this letter.
Sincerely yours, Robert H. Hast Managing Director Office of Special
Investigations
(600875)
*** End of document. ***
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