SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 26
February 23, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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NATIONAL ARCHIVES RESPONDS TO RECLASSIFICATION

Responding to a February 21 New York Times story indicating that thousands of declassified documents had been reclassified by executive branch agencies and removed from public access in questionable circumstances, the National Archives and Records Administration (NARA) announced yesterday that an official investigation into the matter was underway.

An audit is being conducted by the Information Security Oversight Office, a NARA component, to determine the number of documents that have been withdrawn, the authorization and justification for the withdrawal, and the appropriateness of the reclassification action.

(Agencies dispute that any documents have been "reclassified." Instead, they contend, the withdrawn records were never properly declassified and so have remained classified all along.)

"The audit will result in a public report designed to provide the greatest feasible degree of transparency to this classification activity," NARA said. "It is anticipated that the report will be available within the next 60 days."

See "The National Archives Responds to Reclassification of Documents," NARA news release, February 22:

The reclassification issue is more than a minor bureaucratic glitch. It has become a threat to the integrity of the entire national security classification and declassification program.

It would not be surprising if there were isolated cases of mistaken declassification. But because many of the now-withdrawn documents are widely available in the public domain, on the National Security Archive web site and elsewhere, anyone can see that the authority to reclassify and remove them has been improperly exercised in many cases. Government officials have admitted as much.

"If those sample records [reviewed by the Information Security Oversight Office] were removed because somebody thought they were classified, I'm shocked and disappointed," ISOO Director Bill Leonard told the New York Times. "It just boggles the mind."

But if records were mistakenly withdrawn in this case, what confidence can anyone have that classification authority is being properly invoked, for example, in the ongoing review of declassified historical records conducted by the Department of Energy? That review, conducted under the 1999 Kyl/Lott amendment, has also led to the removal of many thousands of DOE and other agency records that supposedly contain classified nuclear weapons information.

And what about Bush Administration classification of present-day records, which has accelerated to a record high level? How can that be taken seriously?

Finally, what is the role of the National Archives? Is NARA the guardian of public access to historical records? Or has it become a passive accomplice to the classification abuses of other agencies?

Rep. Christopher Shays (R-CT) announced that his House Government Reform subcommittee on National Security will hold a third hearing on classification policy on March 14.

RECLASSIFICATION AND THE ESPIONAGE ACT

Could the National Security Archive be prosecuted under the Espionage Act for publishing historical documents that U.S. intelligence agencies now say are classified?

Could Secretary of State Condoleezza Rice be detained for continuing to publish historical intelligence records on the State Department web site that the CIA has flagged as classified?

Could thousands of historians and librarians around the country be arrested for retaining and circulating volumes of the State Department's Foreign Relations of the United States (FRUS) series that are now considered to contain classified documents?

These seem to be silly questions.

And yet the theory of the Espionage Act that has been adopted by the government in its prosecution of two former officials of the American Israel Public Affairs Committee (who are not charged with espionage) may extend even to silly cases such as these.

The Espionage Act's prohibitions on the unauthorized retention and transmission of national defense information apply to "whoever" may violate them, the government insisted in a January 30 motion.

"Whoever means, 'no matter who'," the government contended. "The statute covers 'anyone'."

Until now, the Espionage Act has never been interpreted this broadly, and for good reason. Using the Act to penalize the public receipt and distribution of government information leads to absurd conclusions.

JUSTICE DEPARTMENT DECLASSIFICATION PLAN

The Department of Justice described its progress towards meeting the December 31, 2006 deadline for automatic declassification of 25 year old historical records in an updated Declassification Plan submitted to the Information Security Oversight Office last year.

Significant exemptions to the automatic declassification program have been sought by the FBI and the DoJ Office of Intelligence Policy and Review. Otherwise some 30 million pages of DoJ records have been subjected to declassification review in recent years.

A copy of the Plan was obtained under the Freedom of Information Act by Michael Ravnitzky.

See "2003 Declassification Plan (Revised October 27, 2005)," U.S. Department of Justice:

SELECTED CRS REPORTS ON NATIONAL SECURITY POLICY

Some notable, newly updated reports of the Congressional Research Service, obtained by Secrecy News and published on the Federation of American Scientists web site, include the following:

"Conventional Warheads For Long-Range Ballistic Missiles: Background and Issues for Congress," updated February 13, 2006:

"U.S. Nuclear Weapons: Changes in Policy and Force Structure," updated January 27, 2006:

"U.S. Armed Forces Abroad: Selected Congressional Roll Call Votes Since 1982," updated January 27, 2006:

"Interrogation of Detainees: Overview of the McCain Amendment," updated January 24, 2006:

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

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