SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 38
April 22, 2011

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

MOST AGENCIES ARE OUT OF COMPLIANCE WITH SECRECY POLICY

Most executive branch agencies failed to meet a December 2010 deadline set by President Obama to issue implementing regulations for his December 2009 executive order on national security classification policy, dealing a setback to the Administration's classification reform agenda.

Despite last year's presidential deadline, "As of March 15, 2011, only 19 of 41 agencies have issued their implementing regulations in final form," according to the latest Annual Report to the President from the Information Security Oversight Office (ISOO), made public today.

"Given that less than half of agencies have issued implementing regulations in the 15 months since the President issued the order and the 9 months since ISOO revised the government-wide implementing regulations for the order, it is clear that the means by which agencies modify and issue implementing regulations are not sufficient to accommodate changes in national security policy," the ISOO Report said.

"ISOO sees this as the biggest impediment to implementing the reforms called for by the President and as a real threat to the efficient and effective implementation of the overall classification system."

Among other things, the delayed implementation of the executive order means that many agencies have still not begun to perform the Fundamental Classification Guidance Review that requires them to seek out and eliminate obsolete classification requirements.

ISOO Acting Director William A. Cira said that even with the lag in implementation, many agencies were actually moving faster to adopt the new classification order than they had done in the past. For example, after President Clinton issued executive order 12958 in April 1995, the Department of Defense did not issue an implementing regulation for nearly two years. Following President Bush's 2003 executive order 13292, the Department of Defense never got around to issuing an updated regulation at all!

On the other hand, no previous President had personally set a deadline for agencies to adopt implementing regulations, as President Obama did in a December 29, 2009 memorandum. This creates the awkward and disturbing circumstance that most affected agencies are now out of compliance with a direct presidential order.

That's true, said Mr. Cira of ISOO, but it should be understood as a reflection of antiquated bureaucratic procedures, not as deliberate agency defiance of the President.

"In a lot of agencies, especially the larger ones, the bureaucratic processes for publishing formal regulations tend to be quite difficult and time consuming," he said. "This can be just as frustrating for those people in the agency that have drafted the regulation and are trying to get it through the approval process as it is for anyone outside the agency."

The ISOO annual report is one of very few published sources of official data on classification and declassification activity in the government. This year, for example, the report said that agencies generated 224,734 original classification decisions in FY2010, a hefty 22.6 percent increase from the year before.

But the impact of the annual reports is hard to establish. In recent years, the President has not even acknowledged receipt of the report, much less engaged with its findings.

COURT REJECTS AGENCY'S NATIONAL SECURITY CLAIM

In Freedom of Information Act litigation, courts will almost always defer to a government agency when it asserts that national security requires that certain information remain classified. Judges say they are reluctant to "second guess" agency national security experts, and there is a substantial body of case law that discourages them from doing so.

But earlier this month, Judge Richard W. Roberts of the DC District Court considered an agency's national security claim, found it unpersuasive, and rejected it.

In that FOIA case, Center for International Environmental Law vs. the Office of the United States Trade Representative, the plaintiff sought a USTR document concerning the U.S. negotiating position on the Free Trade Agreement of the Americas. USTR said the document was classified because the international negotiations were confidential and the document's disclosure would result in damage to U.S. foreign relations.

"USTR argues that release of document 1 would constitute a breach of its agreement with the other nations participating in the FTAA negotiations. [USTR] states that [t]here is an understanding among the 34 participating governments, consistent with longstanding practice in multiparty trade negotiations, that they will not release to the public any negotiating documents they produce or receive in confidence in the course of the negotiations unless there is a consensus among the 34 governments to do so."

But remarkably, the judge didn't buy it, particularly since it was a question of releasing a U.S. document, not a foreign document.

USTR "has not shown it likely that disclosing document 1 would discourage foreign officials from providing information to the United States in the future because those officials would have no basis for concluding that the United States would dishonor its commitments to keep foreign information confidential," he concluded.

"Although a court must defer to agency affidavits predicting harm to the national security, '[d]eference... does not mean acquiescence'," Judge Roberts wrote. See the April 12, 2011 Memorandum Opinion here:

The ruling that international negotiations cannot necessarily be used as a pretext for classifying U.S. government information may have important ramifications in other policy areas.

So, for example, the U.S. government currently makes less information about the makeup of the U.S. nuclear arsenal under the New START Treaty than it previously did under the START regime, observed Hans Kristensen of FAS last month.

Although such stockpile information is generated and is regularly exchanged with the government of Russia under the provisions of New START, it is currently classified and has still not been made publicly available. If it became necessary to challenge the classification of this information in court, then Judge Robert's new ruling might offer an apt precedent.

"Although the Constitution permits the judiciary to play a role in judging government secrecy claims and Congress has repeatedly endorsed that role, most prominently in the Freedom of Information Act, judges have been reluctant to question Executive Branch secrecy," observed Meredith Fuchs in a 2006 law review article that argued for a more active judicial role in reviewing classification decisions. "Without judicial intervention..., the incentives on the Executive Branch to overreach far outweigh any checks on excessive secrecy."

R.I.P. -- JEANNE SCHAUBLE, MICHAEL RESNICK

We were sad to learn, belatedly, of the recent deaths of two familiar figures in the rather small world of government secrecy policy.

Jeanne Schauble, the longtime director of declassification at the National Archives, died last October. She helped oversee and implement the declassification of more than a billion pages of historical records since 1995. Her NARA colleague Michael Kurtz said last year that "she set a high standard for government service."

Michael Resnick was Senior Director of Information Sharing Policy at the White House until his death from cancer in February. If the current policy on Controlled Unclassified Information is not a disaster -- and so far, it's not -- that is largely because Mr. Resnick was willing to engage in sometimes heated discussions with public interest groups and to reconsider his own position.

As far as we could tell, no obituaries for Ms. Schauble or Mr. Resnick appeared in any national newspaper. They weren't famous. But they were honest, honorable and skilled public servants. Anyone who crossed their paths will remember them.

VARIOUS NEW ITEMS FROM CRS

New reports from the Congressional Research Service on various topics include these:

"Non-Governmental Organizations' Activities in North Korea," March 25, 2011:

"Turkey-U.S. Defense Cooperation: Prospects and Challenges," April 8, 2011:

"FY2011 Appropriations in Budgetary Context," April 14, 2011:

"Judicial Discipline Process: An Overview," April 7, 2011:

"Effects of Radiation from Fukushima Daiichi on the U.S. Marine Environment," April 15, 2011:

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

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