SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 65
July 30, 2003

CLASSIFICATION POLICY AND THE MISSING 28 PAGES

The dispute over the Bush Administration's refusal to declassify a 28 page section of the congressional joint inquiry report on the September 11 terrorist attacks has elevated classification policy to front page news.

Sen. Bob Graham (D-FL) directly challenged the legitimacy of the continued classification. "This obsession with excessive secrecy is deeply troubling," he said July 24:

Some may devalue such comments because Sen. Graham is a candidate for the Democratic presidential nomination, and a critic of President Bush.

But the same cannot be said of Sen. Richard Shelby (R-AL), who is a Republican supporter of the President and a "hawk" on protecting classified information. Yet it was Shelby who said on NBC Meet the Press and elsewhere that "My judgment is 95 percent of that information could be declassified, become uncensored so the American people would know."

"Judgment" may be the key word here. What the dispute over the missing 28 pages illustrates with exceptional clarity is that classification is a subjective process. Different individuals with comparable expertise and commitment to national security will sometimes assess the sensitivity of particular information in different, even opposing ways.

Because it is subjective, the classification process is susceptible to bias, poor judgment or error.

While this is obvious enough, it is also hard to admit. Asked about Sen. Shelby's contrasting view on July 29, President Bush simply ignored the question. Grilled at a White House press briefing, spokesman Scott McClellan could only repeat the Administration position over and over. See:

If the classification process is susceptible to error, then what is needed, and what is lacking, is an effective error correction mechanism.

Ironically, the congressional joint inquiry into 9/11 specifically called for "amendments to the Executive Orders, policies and procedures that govern the national security classification of intelligence information, in an effort to expand access to relevant information..." (recommendation 15).

But the joint inquiry assigned this crucial task to the President! Since it is unrealistic to ask a President, especially this President, to limit his own authority to classify, this recommendation is a futile gesture.

Sen. Bob Graham said he would ask the Senate Intelligence Committee to exercise its own authority to disclose portions of the 28 classified pages, pursuant to a Senate procedure that has never before been utilized. This would precipitate an extraordinary (and thrilling) confrontation between the executive and legislative branches over classification policy.

See that procedure in Section 8(a) of the Rules of the Select Committee on Intelligence here:

The classified 28 pages are understood to refer to Saudi Arabia and the possible role of Saudi officials in aiding the 9/11 hijackers.

"We cannot name this country," said comedian Bill Maher, "but it is, we can assume, a veritable *Mecca* of terrorist activity."

"We have nothing to hide," said Saudi foreign minister Prince Saud al-Faisal after meeting with President Bush. "And we do not seek nor do we need to be shielded. We believe that releasing the missing 28 pages will allow us to respond to any allegations in a clear and credible manner; and remove any doubts about the Kingdom's true role in the war against terrorism and its commitment to fight it." See:

EXECUTIVE ORDER ON INFORMATION SHARING

President Bush issued an executive order on July 29 to implement a provision of the Homeland Security Act that is supposed to promote increased sharing of homeland security information throughout the government, including with state and local officials. See Executive Order 13311 here:

The order does not address the definition and handling of "sensitive homeland security information," which is the subject of a separate notification that is to be issued for public comment.

The provisions of the Homeland Security Act concerning information sharing may be found here:

BILL SEEKS INFO ON GOVERNMENT USE OF DATABASES

Sen. Ron Wyden (D-OR) introduced a bill on July 29 to shed light on the government's use of commercial databases containing personal information for intelligence and law enforcement purposes.

"The power of technology that allows the Federal Government to pry into the personal lives of millions of Americans is only beginning to be understood," said Sen. Wyden. "It is a breath-taking power."

His bill would require a thorough report on government acquisition and use of such databases, and would prohibit the use of funds to procure commercial database information until the report is provided to Congress.

See the introduction of the "Citizens' Protection in Federal Databases Act" (S. 1484) here:

CORRECTIONS AND CLARIFICATIONS

Secrecy News (7/24/03) mistakenly said that declassified excerpts of the October 2002 National Intelligence Estimate were not published by the major media outlets following a June 18 White House background briefing where the excerpts were disclosed. In fact, the Washington Post promptly published the release on its web site.

Secrecy News (7/28/03) stated that the Senate voted along party lines to defeat an amendment that would have subjected advisory committees of the Department of Homeland Security to open meeting laws. But there were two exceptions: Republicans Olympia Snowe (ME) and Lincoln Chafee (RI) voted with the Democrats in favor of open meetings.

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

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