Case Document 19-2 Filed 05/22/15 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JASON LEOPOLD, Plaintiff, v. Civil Action No. 14?0197 DEPARTMENT OF DEFENSE, Defendant. SUPPLEMENTAL DECLARATION OF DAVID G. LEATHERWOOD 1, David G. Leatherwood, do herebyr declare under penalty of perjury that the following is true and correct: I. I am a career Department of Defense civilian intelligence of?cer and have served in various intelligence assignments for over 35 years. I currently serve as the Director of Operations for the Defense Intelligence Agency (DIA) and as a member of the federal government?s SeniOr Executive Service. DIA is responsible for satisfying the military and military-related requirements of the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the combatant commands, other components, and, as appropriate, non-DoD agencies of the federal government. As the Director for Operations, I am responsible for managing the day-to-day intelligence collection operations of this Agency. 1 have been delegated authority to function as an Original Classi?cation Authority (OCA) pursuant to Executive Order 13526. 2. I previously provided a declaration to support the classification status of other information at issue in this civil action. I am providing this supplemental declaration to support the classi?cation status of a supplemental release package that was released to the plaintiff in this Case Document 19-2 Filed 05/22/15 Page 2 of 10 litigation on May 15, 2015. The supplemental release package consists of thirty-eight pages of records, seven of which contain no classi?ed information following a declassi?cation review. I have determined that the remaining thirty-one pages contain certain sections that remain currently and properly classi?ed pursuant to Executive Order 13526. These classi?ed sections are therefore exempt from disclosure pursuant to Exemption 1 of the Freedom of Information Act (FOIA). I will also address two additional issues connected to the classi?cation of records that are at issue in this case. This declaration accompanies the Supplemental declaration of Alesia Y. Williams, the head of this Agency?s FOIA operations. Ms. Williams? declaration will address other aspects of the handling of this FOIA request, while my declaration will generally address national security classi?cation matters only. 3. I have personally reviewed the documents contained within the supplemental response package. The thirty-eight pages of responsive records that were located during the supplemental search originated with the BIA Of?ce of Corporate Communications and are focused on the work of the Interagency Review Task Force assigned to assess the damage caused by the activities of former National Security Agency contractor, Edward Snowden. These particular records re?ect the communications between DIA and Congressional leaders concerning the Snowden disclosures. All of these documents were produced for or by, and remain under the control of, the United States Government. Basis for Classification 4. The current basis for classi?cation of national security information is found in Executive Order 13526. Section 1.1 of the Order authorizes an OCA to classify information owned, produced, or controlled by the United States government if it falls within one of the Jason Leopold v. Department ofDefense, No. 14-0197 (0.13.0) Supplemental Declaration afDavt?d G. Leatherwooa? - Page 2 Case Document 19-2 Filed 05/22/15 Page 3 of 10 following eight classi?cation categories speci?ed in Section 1.4. The classification categories that are asserted to classify this particular material include: Section 1.4(a) Information related to military plans, weapons systems, or operations; Section 1.4(c) Information related to intelligence activities (including Special activities), intelligence sources or methods, or Section 1.4(e) Information related to scienti?c, technological, or economic matters relating to the national security; Section 1.4 Information related to United States government programs for safeguarding nuclear materials or facilities; and, Section 1.4 Information related to vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to national security. 5. Section 1.2 of Executive Order 13526 provides that information covered by one or more of these classi?cation categories may be classi?ed at one of three classi?cation levels - Top Secret (TS), Secret (S) or Confidential (C) - depending on the degree of harm that would result from the unauthorized disclosure of such information. Information is classified at the Con?dential level when its release could reasonably be expected to cause damage to national security. Information is classified at the Secret level when its release could reasonably be expected to cause serious damage to the national security. Classification at the Top Secret level is maintained if its release could reasonably be expected to cause exceptionally grave damage to national security. Jason Leopold v. Department ofDefense, No. 34-01797 (D. D. C. Supplemental Declaration of David G. Leatherwood Page 3 Case Document 19-2 Filed 05/22/15 Page 4 of 10 6. Exercising the classi?cation authority delegated to me pursuant to Executive Order 135 26, I have determined that certain information within these reviewed documents was properly classi?ed by an Original Classi?cation Authority under the Order and that it remains currently and properly classi?ed at the Secret and Top Secret levels. Other information has been declassi?ed because it no longer satis?es the standards set out for national security classi?cation. The remaining classi?ed information must therefore be withheld from disclosure pursuant to Exemption 1 of the FOIA in order to protect national security. Section Military Plans. Weapons Systems, and Operations 7. Certain information contained within the supplemental release package is properly classi?ed under Section 1.4(a) of Executive Order 13526. Section 1.4(a) of the Order protects information pertaining to military plans, weapons systems or operations. This includes information such as the strength and deployment of forces, troop movements, ship sailings, the location and timing of planned attacks, tactics and strategy, operation of weapons systems, and supply logistics. Protecting such information is critical to maintaining national security. 8. In one paragraph contained within page three of the release package, DLA describes the classi?ed discussions concerning the impact of the Snowden disclosures on military plans and military operations. The paragraph refers to the assessment of the scope of that impact, and thus warrants classi?cation. I have determined that the disclosure of this information would degrade the militaryr capabilities of the United States and, therefore, cause serious damage to national security. The information is therefore currently and properly classi?ed at the Secret level pursuant to Section 1.4(a) of Executive Order 13526. Jason Leopold v. Department of Defense, No. 144919? (DD. C.) Sappiemental Declaration of David G. Leatherwooa? Page 4 Case Document 19-2 Filed 05/22/15 Page 5 of 10 Section 1.4(c) -- Intelligence Sources and Methods 9. DIA withheld certain infermation from the supplemental release package because it relates to intelligence sources and methods, and its disclosure could reasonably be expected to cause either serious or exceptionally grave damage to national security. I have determined that it is thus properly classi?ed as Secret or Top Secret under Section 1.4(c) of Executive Order 13526. Section 1.4(c) recognizes that the disclosure of intelligence sources can cause damage to national security. Intelligence sources can include individuals, foreign or American, foreign entities, and the intelligence and security services of foreign governments. Intelligence sources can only be expected to furnish information only when confident that they are protected from retribution by the absolute secrecy surrounding their relationship to the United States government. Sources that are compromised become extremely vulnerable to retaliation from a variety of entities including their own governments or others having a stake in the confidentiality of the information provided by the source. 10. Section 1.4(c) of Executive Order 13526 also recognizes that the release of intelligence methods can cause damage to national security. Intelligence methods are the means by which (or the manner in which) an intelligence agency collects information to support military operations, assist in national policymaking, assess military threats, or otherwise accomplish its mission. Detailed knowledge of the methods and practices of an intelligence agency must be protected from disclosure because such knowledge would be of material assistance to those who would seek to penetrate, detect, prevent. avoid, or damage the intelligence operations of the United States. Jason Leopold v. Department of'Defense, No. 174-0197 (D. D. C. Supplemental Declaration ofDavid G. Leatherwood Pnge 5 Case Document 19-2 Filed 05/22/15 Page 6 of 10 11. have determined that portions of twenty-eight pages and all of two additional pages must remain classi?ed pursuant to Section 1.4(c) because this information remains relates to intelligence sources or methods. I have determined that the disclosure of this information could reasonably be expected to enable persons and groups hostile to the United States to identify U.S. intelligence activities, methods or sources, and to design countermeasures to defeat them. The withheld information captures discussions about the extent to which these intelligence sources and methods were affected by the Snowden disclosures. Protecting information about our vulnerabilities in this area is absolutely critical. Disclosure could be expected to cause serious damage to national security with respect to some of the withheld information and exceptionally grave damage to national security with respect to other withheld information. Therefore, this information remains currently and properly classi?ed at the Secret and Top Secret levels. Section 1.4(e) Scienti?gjechnological. or Economic Matters Related to National Security. Which Includes Defense Against TranSnational Terrorism 12. DIA also withheld certain information because it relates to scienti?c and technological matters related to national security, and its disclosure could reasonably be expected to cause serious damage to national security with respect to some of the withheld information and exceptionally grave damage to national security with respect to other withheld information. I have determined that this information is thus properly classi?ed under Section 1.4(e) of Executive Order 13526. Within portions of two pages of the supplemental release package, DIA has classified information that discusses scientific or technological capabilities that may have been affected by the Snowden disclosures. Release of this information would indicate to our Jason Leonot?d v. Department of Defense, No. 14- (D. D. C. Supplemental Declaration of David G. Leatherwooa? Page 6 Case Document 19-2 Filed 05/22/15 Page 7 of 10 adversaries the extent to which the United States is affected. This information is currently and properly classi?ed at the Secret and Top Secret level pursuant to Section 1.4(e) of Executive Order 13526. This information is therefore exempt pursuant to Exemption 1 of the FOIA. Section 1.4(f) United States Government Programs for Safeguarding Nuclear Materials or Facilities 13. Section of Executive Order 13526 protects sensitive information about the safeguarding of United States Government nuclear materials or facilities. In one paragraph on page twelve of the supplemental release package, 1 have determined that there exists one reference to such a nuclear program or facility that must remain classified at the Top Secret level to prevent exceptionally grave damage to national security. This information is therefore exempt pursuant to Exemption 1 of the FOIA. Section 1.4(g) Vulnerabilities or Capabilities of Systems, Installations, Infrastructure, Proiects, Plans or Protective Services Related to National Security 14. DIA also withheld portions of one paragraph of information because it relates to vulnerabilities or capabilities of systems, installations, infrastructure, projects, plans or protective services related to national security, its disclosure could reas0nably be expected to cause exceptionally grave damage to national security, and it is thus properly classified under Section 1.4( g) of Executive Order 13,526. Upon review, I have determined that this small amounth information remains currently and properly classified at the Secret level with respect to some of the withheld information and at the Top Secret level with respect to other withheld information. This information is therefore exempt pursuant to Exemption 1 of the FOIA. Jason Leopold v. Department of Defense, No. 14-0197 (D. D. C. Supplemental Declaration of David G. Learnemood - Page 7 Case Document 19-2 Filed 05/22/15 Page 8 of 10 Searegabilitv Review 15. My determination as the OCA is that the withheld classi?ed portions of the information contained within the thirty-eight page supplemental release package remains currently and properly classi?ed pursuant to Executive Order 13526. Its public disclosure could reasonably be expected to cause serious or exceptionally grave damage to the national seeurity of the United States. As the OCA responsible for determining the appropriate classi?cation status of the responsive information purSuant to Executive Order 13526, I understand that I am also responsible for advising whether any unclassi?ed portions of these documents could be segregated for release to the requester. A release is required anytime the agency ?nds unclassified information within a document containing currently and properly classi?ed information, if withholding of the unclassified information is not appropriate pursuant to the provisions of another FOIA exemption. 16. I have determined that certain portions of the classi?ed paragraphs and sections can be declassi?ed for release to the plaintiff because these portions do not contain classified information. When it was unnecessary to assert any other exemption to protect this information, Ms. Williams has prepared the document to segregate that non-exempt information. I have determined that all reasonably segregable information has been provided to the requester. Other Issues Raised in Plaintiff? Cross-Motion 17. I will also respond to the plaintiff? apparent misunderstanding or misconstruction of a portion of my first declaration in this case. Asl explained in paragraph 23 of that declaration: Jason Leopold v. Department of'Defense. No. 14-0197 (D.D.C.) Supplemental Declaration (JDovid G. Leotherwood Page 8 Case Document 19-2 Filed 05/22/15 Page 9 of 10 DIA asserted Exemption 1 to protect unclassi?ed references to newspaper articles in the public domain that have been con?rmed to contain unlaw?illy disclosed classi?ed information. Con?rmation that these speci?c newspaper articles contain classi?ed information through the release of these references under the FOIA would cause harm to national security by offering validation that the stolen information is classi?ed. Mr. Leopold suggests this is not a logical or plausible explanation of foreseeable harm to national security because the newspaper articles have already ?been con?rmed to contain unlawfully disclosed classi?ed information.? To be clear, it has not been publicly con?rmed by the United States Government that the unlawfully disclosed. classi?ed information in these articles is genuine, accurate, or in fact classi?ed. Rather, the Intelligence Community has con?rmed that stolen classi?ed information appears in these articles. Releasing references to those articles in the context of this case would allow sophisticated observers, including adversaries of the United States, to conclude that the articles do, in fact, contain genuine, accurate, and classi?ed national security information. Even if such adversaries may already suspect the information is genuine, providing further certainty can, in this context, be reasonably expected to cause serious or exceptionally grave damage to national security by allowing those adversaries to piece together a fully picture of the United States? intelligence and national defense capabilities, and devise counterm easures to defeat our capabilities. 18- Finally, in order to address another issue raised by Mr. Leopold in his cross? motion, I obtained a copy of the transcript of Lieutenant-General and Director of National Intelligence Clapper?s open testimony before the House Permanent Select Committee on Intelligence on February 4, 2014. This testimony followed a closed session of the Committee the prior day, in which classi?ed information was discussed. I have examined and considered the Jason Laonoid v. Department ofDefease, No. 14-0197 (D. D. C. Supplemental Declaration afDavid G. Leatherwoad Page 9 Case Document 19-2 Filed 05/22/15 Page 10 of 10 statements made to the Committee by LTC and DNI Clapper during their open testimony. Neither senior leader divulged information contained within any withheld portions of the records processed for release to plaintiff as part of his FOIA request. The topics are certainly related, but the dividing line between classi?ed and unclassi?ed informatioo used by both senior of?cials in discussing information in the open testimony matches that of the subj eet matter experts and classi?cation of?cials who reviewed this information for release as part of this case. Put another way, the information discussed publicly by LTC and Clapper is not as speci?c as or identical to any information withheld as classi?ed (or otherwise) from Mr. Leopold in response to his FOIA request that is the subject of this case. I certify under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed this let day of May 2015 w/aayggj" David G. Leatherwood Director for Operations Defense Intelligence Agency Jason Leopold v. Department af?DefErtse, No. 4-0l 97 (D. D. C. Supplemental Declaration afDavid G. Learhemaod-~ Page .10