Declassification Backlog of Historic Records (1994): Paper 2

Federal agencies withhold huge amounts of information, much of it crucial to complete historical research and analysis, by categorizing it as "foreign government information." The three most recent Presidential executive orders on national security classification have each devoted a section to the handling of "foreign government information," each broadening the definition of materials covered and shifting toward more restricted access. The following paper examines the ambiguities and complexities of U.S. national security information policy's treatment of "foreign government information."

President Richard Nixon made the first effort to promulgate a comprehensive policy on the classification and declassification of sensitive information by issuing Executive Order (E.O.) 11652 in 1972. Although the language of the Nixon order was ambiguous about what constituted "foreign government information," in practice the term generally meant documents that had been created solely by a foreign government. President Jimmy Carter's executive order of 1978 redefined "foreign government information" in a way that provided grounds for keeping greater amounts of material classified, but the presumption toward openness in the Carter order tended to mitigate against greater classification. Federal agencies currently interpret the phrase under the terms of President Ronald Reagan's executive order as "information" and not simply "documents." In contrast to the Nixon order, "foreign government information" presently includes information of various types that exists in documents created not only by foreign governments but also by the United States. Any information gleaned in whole or in part from a foreign sources type of information routinely included in American documents currently is subject to categorization as "foreign government information." While the ambiguity of the Nixon order had allowed for a more open interpretation of "foreign government information," the expanded language of the Reagan order led to more aggressive implementation and the classification of larger numbers of records.

As the definition of "foreign government information" changed, access policy became more restrictive. Executive Order 11652, which President Nixon issued in 1972, stipulated that all records were to be declassified after thirty years. Yet the order also stated that "foreign government information" was to be held in confidence.¹ According to the order: "Classified information or material furnished to the United States by a foreign government or international organization shall either retain its original classification or be assigned a United States classification." The order added the provision that "In either case, the classification shall assure a degree of protection equivalent to that required by the government or international organization which furnished the information or material."²

Faced with the contradiction between the requirement that all records be opened after thirty years and the requirement that foreign government information be protected, the State Department initially instructed National Archives to interpret "foreign government information" as foreign-originated documents, thereby foreclosing any ambiguity that could have been used to prevent disclosure. This remained the policy through the mid-1970s.³ During this period, however, a lingering debate about the meaning of "documents" versus "information" became increasingly prominent. Journalists had begun to push for increased access to "information," and the government reacted by regulating the availability of this conceptually broader category. As one expert on this problem has noted, this conceptual shift complicated the entire issue: "Making decisions about [whether to release] information, rather than records, is much more complex....Instead of looking for documents that could be declassified, reviewers began to look for information that could not be declassified."⁴

The Interagency Review Board created by the Nixon order to oversee the classification/declassification system frequently dealt with the "information" versus "documents" issue. As some of the Board members viewed the situation, the Nixon policy straddled this dichotomy instead of resolving it. The first category of information subject to exemption from declassification under the Nixon order was "classified information or material furnished by foreign governments or international organizations and held by the United States on the understanding that it be kept in confidence."⁵ Yet because the order also called for all documents to be subject to a maximum of thirty years of classification, the members of the Interagency Classification Review Committee reached a functional consensus that E.O. 11652 intended all documents to be subject to the thirty-year timetable for declassification, including "foreign government information."⁶ Despite a tentative resolution of this conflict in a way that favored access to information, the wording of the order left the potential for a broad interpretation that could make considerably larger amounts of information susceptible to classification and exempt from declassification, not solely on the basis of national security sensitivity but simply because it could be categorized as "foreign originated."

President Jimmy Carter made substantive changes in the declassification process by issuing Executive Order 12065 in 1978. Carter sought to make government more open and responsible to its constituents and therefore instituted a "balancing test" that required consideration of the public interest in the declassification review process. His order also provided for systematic review of records when they reached twenty years of age. However, the Carter order continued to list "foreign government information" as a category of information subject to classification and exemption from declassification. E.O. 12065 identified "foreign government information" as "information that has been provided to the United States in confidence or produced by the United States pursuant to a written joint arrangement requiring confidentiality with a foreign government or international organization of governments."⁷ This definition, like that in the Nixon order, made no distinction between wholly originated foreign documents and intelligence or diplomatic information provided by a foreign government source. However, the phrase "pursuant to a written joint arrangement requiring confidentiality" seemed to indicate a narrowly defined group of records in which there had been a specific agreement of confidentiality, such as treaties and other signed agreements.

The Carter order’s language on foreign government information adhered to the "identifiable damage" standard, stating: "Unauthorized disclosure of foreign government information or the identity of a confidential foreign source is presumed to cause at least identifiable damage to the national security."⁸ But the Carter order did not allow a blanket exemption from declassification of "foreign government information": if no case could be made for "identifiable damage," E.O. 12065 allowed the declassification of "foreign government information"

While the Nixon order referred to "foreign government information and material," the Carter order dropped the term "material." This shift away from "material," which is more akin to tangible records, and toward the vague and all encompassing term of "information" was clearly disturbing to many historians. But although the Carter order was more ambiguous on the wording of "foreign government information," the general thrust was to allow a broader and more open interpretation. The Carter order did in fact allow increased access to historical documents. Access to historical records essential for such books as The Congo Cables (1981) by Madeleine Kalb and The CIA in Guatemala (1982) by Richard Immerman was made possible by the Carter order's commitment to greater openness.⁹

President Reagan's 1982 Executive Order 12356 proved to be the most restrictive of the executive orders on national security information. The Reagan order introduced a strong bias toward continued classification and put in place the principle that, if there was doubt about the sensitivity of a particular piece of information, it should be classified or withheld from declassification. This shift in emphasis and tone was evident in the Reagan order’s revised language on "foreign government information." This criterion maintained its place in the list of categories of information that could be exempted from declassification, but the redefinition of the concept under the Reagan order also widened the scope of information subject to classification solely because it had originated with a foreign source. E.O. 12356 defined "foreign government information" as: "information provided by a foreign government or governments, an international organization of governments, or any element thereof with the expectation expressed or implied, that the information the source of the information or both, are to be held in confidence; information produced by the United States pursuant to or as a result of a joint arrangement with a foreign government or governments or an international organization of governments, or any element thereof, requiring that the information the arrangement, or both are to be held in confidence."¹⁰

This revised definition of "foreign government information" had the effect of explicitly sanctioning the expansion of classification. Since the Reagan order maintained the presumption at "foreign government information" is always sensitive, the phrase "or any element thereof" explicitly added to the list of protected information any comment provided by an individual foreign government official or civil servant speaking "off the record." In fact, the intelligence provided by such a source need not have been expressly given in confidence to be deemed in need of protection. If a desire for confidentiality was not openly verbalized, a classifier could still find that confidentiality was "implied" in the exchange.

Dr. Anna Nelson, testifying before the House Governmental Affairs Committee on behalf of the American Historical Association and the Organization of American Historians, decried the order’s ambiguous use of the word "implied," stating that "it is quite extraordinary that foreign government 'information' is to remain classified under any condition." She further commented that "while a document from a foreign government does not belong to the United States, foreign government 'information' is something printed in a document" and should not be kept classified indefinitely "though some countries may never be willing to release information."¹¹ She maintained that under the Reagan order information could be legitimately withheld as "foreign" simply because "the source of the information" or "the arrangement" between governments under which the information was produced required confidentiality, regardless of whether there was any need for confidentiality regarding the information itself.

In a "Statement on Security classification of Documents and Executive Order 12356," the leadership of the American Historical Association further expressed its concern with the "foreign government information" portion of Executive Order 12356. In short, the statement urged a return to the earlier practice of applying the term "foreign government information" only to documents originating in other governments and warned that "the new policy poses enormous dangers for our country: the public's right to know is being drastically threatened and its ability to understand government policies and weigh alternatives is being gravely hampered."^l2

The Reagan order did clarify the ambiguity that had surrounded the wording and implementation of the "foreign government information" clauses in the Nixon and Carter orders but attained this with a policy that vastly restricted the access that had been allowed by the loose interpretation of the earlier orders. In addition to increased classification and delayed declassification, the Reagan order also allowed for reclassification of previously released material. There is evidence that a number of 1950s-era documents which had been declassified in the 1970s were reclassified in the 1980s under the Reagan order's interpretation of "foreign government information." Labeling such actions an "unprecedented historical anomaly," Blanche Wiesen Cook, an eminent historian of American foreign relations, has noted that over two-thirds of previously declassified State Department material relating to U.S. involvement in Guatemala in the 1950s was reclassified in the 1980s, despite its use in published scholarly works.¹³

At a Department of Defense Conference jointly sponsored in 1992 with the National Archives and funded by the DOD Legacy Cold War Project, Melvyn Leffler, the chair of the history department at the University of Virginia and the keynote speaker, described the impact on his own research in the late seventies of increased access to historical records provided by the Carter order and of restricted access under the Reagan order. Recalling a trip to the National Archives in 1979, he stated: "I remember the sense of exultation as I began looking at those first boxes on base planning and on Soviet intentions and capabilities."¹⁴ In describing his research in Department of Defense records from the 1940s and 50s, most well over thirty years old by that time, he noted: "I had a lot of previous experience in State Department, Commerce, Treasury, and some Army and Navy records in the interwar years. But I quickly sensed that the material I was looking at opened up the possibility of asking all sorts of new questions about the Cold War, about enemy intentions and capabilities, about bureaucratic policies and organizational imperatives, about the intersection of economics and geopolitics and strategy, and about the relationship of national security goals to core domestic values like free speech and free markets." Access to the Joint Chief of Staff (JCS) records for the 1940s and early 1950s proved particularly insightful, and he remarked that from spending months reading JCS records his interest in and respect for the JCS grew. Yet as Leffler's research interests expanded over the years, access to the records became more and more difficult. With the continued classification in 1994 of JCS materials for much of the 1950s and 1960s, Leffler expressed not only disappointment but also frustration at a declassification policy that does not work.

These problems extend as well to material that has been created and classified under the terms of international agreements and secret agreements tied to treaties. The actual volume of such material remains in question because the international agreements involved are themselves often informal or secret. Officials from the State Department and the Department of Defense apparently disagree over the number of such agreements, and therefore over the amount of material affected.¹⁵

There is some evidence that U.S. policy on the protection of foreign government information may be stricter than that of some of our allies. For example, in 1989 the State Department denied a Freedom of Information Act request for several American diplomatic cables from 1958 that concerned the Allied occupation of Berlin. British diplomats had appended the American cables to their own communiqu�s, and they were subsequently obtained from declassified British Foreign Office records. The cables dealt primarily with Anglo-American disagreements about the proper course of action in Berlin, which is probably why the American reviewers initially withheld the documents.¹⁶

In contrast to the present U.S. classification/declassification designed to keep many potentially embarrassing or revealing foreign policy documents secret, it appears that other courtesies have established criteria that allow for release of information about the past policies of foreign governments as part of the declassification of their own historical documents. Thus historians investigating American foreign relations must often conduct their research in the archives of other nations. For example, Dr. Peter Hahn, assistant professor of history at Ohio State University, related in an article entitled "Mining the Arrives of Israel" how he discovered that the Ben-Gurion Archives in Sde Boqer, Israel declassified the same letters from Ben-Gurion to President Eisenhower that the United States has kept classified. To Hahn's surprise, one particular letter was released sanitized in the United States but appeared in its entirety in Israel.¹⁷

A task force of the Clinton administration is currently working on revising the federal information security policy. A March, 1994 draft that would replace E.O. 12356 attempts to clarify and narrow the exemptions allowed under the definition of "foreign government information". This draft defines "foreign government information" as: "information provided to the United States Government by a foreign government or governments, an international option of governments, or any element thereof, with the expectation that the information, the source of the information, or both, are to be held in confidence; or information produced by the United States pursuant to or as a result of a joint arrangement with a foreign government or governments or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence; or information received and treated as 'Foreign Government Information' under the terms of a predecessor order."¹⁸

The Clinton draft has eliminated the presumption first used under E.O. 12065, and continued under the current policy established by the Reagan order, that all material deemed "foreign government information" automatically requires classification. The draft has also eliminated the specific language of E.O. 12356 that had allowed an "implied" expectation of confidentiality to suffice for requiring classification and instead resumed to the standard established by the Carter order, which stipulated that the expectation must be somehow "expressed" by the source involved. The decision about whether or not a source expected confidentiality is led to the classifier, who is most often a person several steps removed from the actual transfer of information.

However, the Clinton draft does include a potentially immense category of information that can be treated as "foreign government information." The clause that calls for the incorporation in the definition all the information treated as foreign government information "under the terms of a predecessor order" could greatly deter the release of older material. Rather than subject old foreign material to declassification decisions under the new, more restricted definition of "foreign government information," this part of the clause effectively keeps that older information subject to its original classification as "foreign," no matter what criteria were originally used to label it as such. Thus, the third clause essentially eliminates the progress made in the first two.

The Clinton draft introduces a provision new to executive orders governing classification and declassification. As a means of curbing the often stifling effects on information disclosure caused by treaties and other international agreements, the draft states: "the Secretary of State shall determine when the United States should commence negotiations with the appropriate officials of a foreign government or international organization of governments to modify any treaty or international agreement that requires the classification of information longer than 25 years from the date of its creation, unless the treaty or international agreement pertains to information that may otherwise remain classified beyond 25 years under this Section."¹⁹ This provision ensures that even "foreign government information" that has been kept classified for decades by the terms of a treaty will eventually be subject to disclosure under the same conditions as any other information controlled by the U.S. government.

Scholars, institutions, and professional organizations concerned with the construction of a new policy on foreign government information are pleased that the first two sections of the Clinton draft provide more specific language to restrict broad exemptions for foreign government information. However, there is concern that the Clinton order continues to link policy to the criteria of the Reagan order and to the continuation of the "terms of the predecessor order," where foreign government information documents or information is concerned. The historical community continues to recommend that any references to "foreign government" material must explicitly distinguish between "documents" originated by a foreign government and "information" provided by a foreign government source and integrated into U.S. documents or material. Specifically, the definition of "foreign government information" should be limited to refer only to foreign government documents. A very large proportion of the information gathered by U.S. embassies and consular posts, including that obtained by CIA stations and military attaches, is information which in one way or another came from foreign government sources. It may be garnered from cocktail party chat or in a one-on-one meeting in an office or restaurant. Material of this sort, included in U.S. government documents, should not be considered "foreign government information" and therefore should be exempt from the classification terms laid down by a foreign government or a multi-government organization. It should be treated on its own merit by U.S. classification standards.

In keeping with the traditional courtesy extended to other nations, any documents entrusted to the U.S. by a foreign government and explicitly bearing foreign government classification requirements should be kept confidential according to those requirements unless the government in question agrees to their disclosure.²⁰ If such documents were not provided in confidence, they should be treated as any other type of information under the control of the U.S. government. These documents should be subject to the usual classification and declassification standards established for all government information, and therefore their impact on U.S. national security should be the only criterion for determining their sensitivity.

Historians contend that the source or origin of documents and information can no longer be a sole criterion for classification. Consideration should be given to the substance of the material and to whether it requires protection from disclosure. The mountain of classified government records can be greatly reduced if a new policy narrowly defines "foreign government information". Making the above recommended changes in the provisions dealing with "foreign government information" would be a major step toward reducing the labor intensive work involved in declassification and making records of historical value more accessible.

Paper Two - Endnotes

President, Executive Order 11652, classification and Declassification of National Security Formation and Material," Section 4 (C).
Ibid.
Anna Nelson, paper presented at Michigan Law School Conference, April 1984.
Milt O. Gustafson, "Historians' Access to Government Documents at Crisis Stage?," unpublished paper delivered to the Society for Historians of American Foreign Relations, (July 30, 1981), pp. 6,7.
President, Executive Order 11652, Section 5 (B).
Minutes, Meeting of the Interagency classification Review Committee, March 15, 1973.
President, Executive Order 12065, Sec. 6-103.
Ibid.
Madeleine G. Kalb, The Congo Cables: The Cold War in Africa from Eisenhower to Kennedy. (New York: Macmillan, 1981); Richard H. Immerman, The CIA in Guatemala: The Foreign Policy of Intervention. (Austin, TX: University of Texas Press, 1982).
President Executive Order 12356, "National Security Information," Sec. 6.1.
Dr. Anna Nelson, Hearings Before A Subcommittee of the Committee on Government Operations House of Representatives, U.S. Government Printing Office, (May 5, 1982), p. 104.
Gerhard L. Weinberg, "Statement on Security classification of Documents and Executive Order 12356," September 13, 1982.
Blanche Wiesen Cook, "Presidential Papers in Crisis," Unpublished paper, See also Richard Immerman, The CIA in Guatemala.
Melvyn Leffler, "Writing Postwar National Security History: A Plea for Cooperation," unpublished paper presented on October 20, 1992 at a Department of Defense, National Archives, and Records Administration Declassification Conference, p.1.
Telephone conversation between Page Putnam Miller and Steven Garfinkel, Director of the Information Security Oversight Office, June 15, 1994.
Letter from William Burr to Page Putnam Miller, December 2, 1993.
Peter Hahn, "Mining the Archives of Israel." The Society of Historians of America Foreign Policy Newsletter. March 1994.
President, Draft Executive Order, "classified National Security Information," March 17, 1994, Section l.l (d).
Ibid., Sec. 3.4.
In preparing the Foreign Relations of the United States series, the State Department Historical Office has frequently sought and obtained permission from foreign governments to declassify their documents.

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