SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 77
September 29, 2009

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

DRAFT ORDER WOULD SET NEW LIMITS ON CLASSIFICATION

"No information may remain classified indefinitely," according to a draft of an Obama Administration executive order on national security classification policy.

As a statement of principle, this may seem tame and self-evident. But until now, no Administration has been willing to make such a categorical statement about the temporal limits of national security secrecy, and it may have significant policy consequences.

An August 4 draft of the executive order was prepared by an interagency task force in response to a May 27 memorandum from the President. The draft is still subject to revision, and has not yet been formally transmitted to the White House for review and approval.

Release of the "highly deliberative draft" executive order was specifically denied by National Security Advisory Gen. James L. Jones in a September 2, 2009 letter. But a copy was obtained by Secrecy News. Some aspects of the draft order were previously reported by Bill Gertz in the Washington Times on September 24. The draft order, which does not represent anything like a transformation of the existing secrecy system, nevertheless has some valuable and innovative features, as well as some disappointing omissions, and a few retrograde steps. A side-by-side comparison between the August 2009 draft and the current executive order is available here:

The draft order states (section 3.3g) that all records are to be automatically declassified no more than 50 years from the date of origin, with the sole exception of records that would identify a confidential human intelligence source. And even such intelligence records must be declassified no more than 75 years from the date of origin, with no exceptions. This is something new. An existing requirement for "automatic declassification" at 25 years would remain in place, but at the 25 year point there are still nine expansive exemptions to declassification. Under the new policy, the exemptions would diminish over time and then disappear altogether.

The draft would require a "Fundamental Classification Guidance Review," involving a continuing review of all agency classification guides in order "to identify classified information that no longer requires protection and can be declassified" (section 1.9). This is a version of a proposal advanced by Secrecy News, and among all of the potential changes to the executive order, it was our top priority. If it worked, the fundamental review would introduce a dynamic new element of self-correction into the classification process.

A National Declassification Center would be established to facilitate interagency review of historical records and to resolve quality control issues, presumably leading to more complete and expeditious access to such declassified records (section 3.7).

Other constructive if not bold steps include: new requirements for training of classification officials in avoiding overclassification; a requirement to identify by name those who derivatively classify information originally classified by others in order to improve accountability; a higher threshold for reclassification of declassified information; provisions for review of previously granted exemptions of file series from 25 year automatic declassification.

On the less constructive side, the draft order affirms that "no agency may declassify information that originated in another agency... without the consent of the originating agency" (section 3.1f). This reinforces a cherished view that agencies "own" the information they produce, and that they retain control over its release and dissemination. It is arguably the single most profound conceptual flaw in the classification system, and it immeasurably complicates the declassification and disclosure process. Even the new National Declassification Center will not possess unilateral authority to declassify information, but will only provide "timely and appropriate processing of referrals" from one agency to another.

The draft order does not make any provision for a "declassification database" that would offer easily accessible electronic versions of declassified records, or at least bibliographic data on exactly what has been declassified.

The draft does not provide enhanced oversight or declassification authority to the Information Security Oversight Office.

The draft would perpetuate the veto authority that was granted by the Bush Administration over declassification decisions made by the Interagency Security Classification Appeals Panel, but it would transfer that authority from the CIA to the Director of National Intelligence. CIA's seat on the interagency Panel would be reassigned to the DNI.

Beyond the ongoing battles over parochial agency interests that are at stake in the new draft, there seems to be a growing sense that the existing secrecy system, even if it is to be buffed and polished one more time, has finally reached obsolescence.

"As soon as we complete our revision of the existing Order," wrote Gen. Jones on September 2, "I plan to begin discussions... about a more fundamental transformation of the security classification system."

GOVT DEFENDS USE OF STATE SECRETS PRIVILEGE

The government's assertion of the state secrets privilege in a pending lawsuit brought by a former Drug Enforcement Administration agent will not be affected by the new Attorney General policy limiting the use of the privilege, the Justice Department said last week, because it is already in compliance with the new policy.

In a September 24 appellate brief in the case of Horn v. Huddle, Justice Department attorneys urged an appeals court to overturn a lower court ruling that would authorize the parties in the lawsuit to disclose classified information to their attorneys. The Department also defended its use of the state secrets privilege.

An August 26 ruling in the case held that the parties' counsel had a "need to know" the classified information possessed by their clients, and the court therefore directed the government to authorize the sharing of that information.

The government immediately objected. "The district court's extraordinary order -- compelling the government to grant security clearances and to authorize disclosure of classified national security information to private counsel... -- unnecessarily usurps the Executive Branch's authority and responsibility to protect from disclosure classified national security information as to which the state secrets privilege has been invoked," the government argued in its September 24 brief.

The government also declared that the Attorney General's new policy limiting the use of the state secrets privilege, which takes effect on October 1, would have no impact on the present case.

"The assertion of the privilege in this case satisfies the standards in the new policy concerning the applicable legal standards, narrow tailoring, and limitations on the assertion of the privilege. Moreover, the privilege as invoked in this case has been carefully reviewed by senior Department of Justice officials, who have determined that invocation of the privilege in this litigation is warranted," the government brief stated.

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

See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
      http://www.fas.org/sgp/eprint/aftergood.pdf

The Secrecy News blog is at:
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