SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2002, Issue No. 33
April 19, 2002

DECLASSIFICATION AND THE OFFICE OF HOMELAND SECURITY

The Office of Homeland Security's limited authority to declassify information may impede its effective operation, according to testimony before the Senate Judiciary Committee this week.

Paul Light, director of governmental studies at the Brookings Institution, presented an inventory of problems that prevent the Office of Homeland Security (OHS) from efficiently collecting, analyzing and disseminating essential security information. One of those problems, he said, was inadequate declassification authority.

"Although the Office of Homeland Security has ample authority to classify information as 'top secret,' it does not have parallel authority to order the immediate declassification of information that it deems in the national interest," Dr. Light told the Committee.

This is an erroneous formulation of the problem, however. The OHS Director, who was granted Top Secret original classification authority by executive order 13228, does have parallel authority to order declassification.

More precisely, the OHS Director, like other agency heads, has full authority to declassify information that was classified by him or his OHS subordinates. It is also true, however, that he, like other agency heads, lacks the authority to declassify information that was originally classified by other agencies.

"You are correct that the [OHS Director's] authority to classify information includes the authority to declassify that information," said Steven Garfinkel, former director of the Information Security Oversight Office. However, "He may not declassify information ... he has received from another agency."

Not even the National Security Adviser has independent authority to unilaterally declassify information originated by other agencies.

"Since the National Security Adviser is now deemed to be an adviser to the President only, and does not exercise agency-like functions, I believe it is correct to say that her declassification authority is limited to NSC-originated information," said Mr. Garfinkel, who stressed that he was speaking as a private individual and not in any official capacity.

In any case, the intriguing question raised by Dr. Light's testimony is whether the OHS Director should have extraordinary authority to declassify other agencies' information.

"The Office of Homeland Security has a special obligation to examine information through a very broad lens and from a vantage point that no other agency of government has," said Dr. Light. Accordingly, it is sensible to ask whether this special obligation should be accompanied by special authorities.

Mr. Garfinkel said no. "I do not believe it would be a good idea to give the Director of Homeland Security or anyone other than the President blanket declassification authority over another agency's classified information."

For one thing, he suggested, it probably wouldn't work. "There are some agencies that might be willing to provide that authority in limited prescribed circumstances, but others that would never agree to do so," he said.

But there is reason to believe that expanding declassification authority beyond the originating agency can lead to a more efficient and more disciplined classification program.

Thus, the Interagency Security Classification Appeals Panel has had a significant impact on improving classification practice through its decisions to overturn dozens of agency classification actions. Even the CIA, the most recalcitrant of agencies, has grudgingly had to accept the Panel's direction. Expanding authority to declassify would also help to signal to agencies that they are merely custodians of national security information, not its owners.

The case has not yet been made that the still-evolving Office of Homeland Security actually requires expanded declassification authority to perform its functions. But such authority certainly ought to remain an option if needed.

The prepared testimony from the April 17 Senate Judiciary Committee hearing entitled "Should the Office of Homeland Security Have More Power? A Case Study in Information Sharing" may be found here:

CRS VIEWS COUNTERTERRORISM IMPACTS ON SCIENCE, INFO POLICY

A new Congressional Research Service (CRS) report surveys the real and potential impacts of official counterterrorism activities on information policy, scientific research, and academic life.

The 52 page report comprehensively and dispassionately addresses limits on access to scientific information, restrictions on research laboratories and biological agents, potential new exemptions to the Freedom of Information Act, and impacts on foreign students at U.S. universities.

See "Possible Impacts of Major Counter Terrorism Security Actions on Research, Development, and Higher Education" by CRS specialist Genevieve J. Knezo, dated April 8 (courtesy of InsideDefense.com) here:

SENATE RESOLUTION SEEKS RETURN OF USS PUEBLO

A Senate Resolution introduced yesterday would demand the return of the USS Pueblo to the United States Navy.

The Pueblo, a U.S. intelligence vessel, was attacked and captured by the North Korean Navy on January 23, 1968. One crew member was killed in the incident and the remainder were held captive for 11 months. The ship itself was kept as a sort of trophy by North Korea, and is on display in Pyongyang.

The Senate resolution, introduced by Sen. Ben Nighthorse Campbell (R-CO), calls for the ship's return.

"At issue here isn't the value of the ship," said Sen. Campbell. "At issue is the honor of America and the record of those who proudly served and were illegal captives by North Korea, a nation which seeks the destruction of America." See:

Declassified documents tracing the tense policy deliberations over the fate of the Pueblo in 1968 were published in the U.S. State Department's Foreign Relations of the United States, 1964-1968, volume XXIX, Part 1. See documents 212 through 331 here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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