SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 6
January 18, 2011

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

A BUMPY START FOR FUNDAMENTAL CLASSIFICATION REVIEW

The Fundamental Classification Guidance Review is the Obama Administration's most ambitious effort to confront the problem of overclassification. It requires each agency that classifies information to conduct a detailed review of all of its classification guides in order to identify obsolete classification requirements and to eliminate them. As spelled out in section 1.9 of executive order 13526, the deadline for completion of the Reviews is June 29, 2012, two years after the effective date of the executive order.

So far, the Review process is off to an uneven start. A Secrecy News survey of dozens of federal agencies shows that a few agencies are taking the process very seriously, others are ignoring or deferring it, and still others wrongly believe it does not apply to them.

By far the most impressive response comes from the Department of Energy, which has developed a detailed plan for implementing the Review. Over a dozen DOE working groups are set to evaluate more than 2,500 classification topics to assess their continued validity. DOE has ordered its personnel to conduct a searching inquiry that challenges the status quo, not a perfunctory exercise that accomplishes nothing.

"Each Working Group is expected to review 'difficult topics' (i.e. guidance topics that are suspected of inconsistent or incorrect application by classifiers)," according to the November 4, 2010 charter for the DOE Fundamental Classification Guidance Review. "Even though a prior analysis may have concluded that the balance [of costs and benefits] favored classification, this [Fundamental Review] will ensure consideration of acceptance of a higher level of risk."

"With a critical and in-depth review of NSI [national security information] classification guidance, the Department will ensure necessary protection is retained and that information that doesn't require protection will be characterized as unclassified and be made available to the public as appropriate," wrote Glenn S. Podonsky, a senior DOE security official.

It shouldn't be necessary to perform "a critical and in-depth review" just to reduce unnecessary classification -- but evidently it is necessary, and DOE seems to be on the path to achieving that goal.

In startling contrast, the Office of the Director of National Intelligence doesn't even mention the Fundamental Classification Guidance Review in its own December 31, 2010 plan for implementing the president's executive order on classification. The ODNI plan provides all kinds of direction on training, inspection, and what-not -- but it is silent on the Fundamental Review. So it doesn't explain how ODNI will conduct the Review, by what standards, on what schedule, or anything like that. How can that be? An ODNI official did not respond to a query on the subject from Secrecy News.

Several other agencies reported that they had not yet started their own Reviews. On the other hand, United States European Command said that it had already completed its Review and found "no inefficiencies" that would justify a change in classification policy. Others were unaware of the requirement in the first place. The United States Pacific Command (PACOM) said it had no records concerning the Fundamental Review because it mistakenly believed the Review was a Department of Energy program that PACOM was not involved in. In other words, PACOM confused the Obama Administration's Fundamental Classification Guidance Review, which does apply to PACOM, with the similarly-named Clinton-era Fundamental Classification Policy Review at DOE, which did not.

The Fundamental Review is not an attempt to compel agencies to disclose classified information (though that is also sometimes necessary, through litigation, congressional mandate or other means). Rather, the Review seeks to enlist agencies to act boldly in their own self-interest to eliminate unnecessary secrecy. By stripping away the barnacles of overclassification, agencies stand to reduce costs, optimize mission performance, improve transparency and accountability, bolster information sharing, and promote public confidence in security policy.

"These reviews can be extremely important in changing the habits and the practices of classifiers throughout government," said William H. Leary of the National Security Council last year.

But that will only be true if agencies actually carry out the Review in a meaningful way.

Towards that end, William J. Bosanko, director of the government's Information Security Oversight Office which oversees the classification system, said that his organization will issue new instructions to agencies on implementing the Fundamental Classification Guidance Review within "the next week or so."

CONGRESSIONAL OVERSIGHT MANUAL, AND MORE FROM CRS

The purposes, authorities, and instruments of congressional oversight are described in detail in a newly-expanded Congressional Oversight Manual prepared by the Congressional Research Service.

"Congressional oversight and investigations can often, though not always, become adversarial," the CRS Manual observes. "This is especially true when the entity being targeted, whether a private individual, corporation, or executive branch agency, has information Congress believes is necessary to its inquiry but refuses to disclose. In those situations the targeted entity may attempt to use several methods of avoiding disclosure. A commonly used tactic to avoid disclosure is to assert that the information cannot be disclosed due to a specific law, rule, or executive decision. Another common tactic is to assert that the information itself is of such a sensitive nature that Congress is not among those entities entitled or authorized to have the information."

The Manual proceeds to scrutinize the validity of such tactics, and discusses the options available to Congress to compel disclosure. A copy was obtained by Secrecy News. See "Congressional Oversight Manual," Congressional Research Service, 168 pages, January 6, 2011:

Other noteworthy new CRS reports include the following.

"National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments," December 27, 2010:

"Ricin: Technical Background and Potential Role in Terrorism," December 21, 2010:

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

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