SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 66
July 11, 2011

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

PENTAGON TIGHTENS GRIP ON UNCLASSIFIED INFORMATION

In 2005, the U.S. Army issued a new field manual on the military use of dogs, which it said were being "employed in dynamic ways never before imagined." The field manual was approved for public release and marked for unlimited distribution. See FM 3-19.17, "Military Working Dogs," 6 July 2005:

But in May 2011, the same Army manual on military working dogs (redesignated as ATTP 3-39.34) was updated, and this time its distribution has been limited to DoD and DoD contractors only. Public access to the document is barred. At the same time, copies of the unrestricted 2005 edition have been removed from Army websites. (A copy is still available through the Federation of American Scientists web site.)

The net loss of public access to information in this case illustrates a new trend that is at odds with the Obama Administration's declared policy. Although the President promised to create "an unprecedented level of openness in Government," in practice new barriers to access to unclassified information continue to arise.

Last November, the Obama Administration issued an executive order on "Controlled Unclassified Information" that was intended to reverse "unnecessarily restrictive dissemination policies" involving unclassified information and to "emphasize... openness." Among other things, the order was intended to eliminate the thicket of improvised access controls on unclassified information (such as "for official use only" and so forth) and to authorize restrictions on access only where required by law, regulation or government-wide policy.

But last month the Department of Defense issued a proposed new rule that appears to subvert the intent of the Obama policy by imposing new safeguard requirements on "prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive)."

By "grandfathering" those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy.

Even more broadly, the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded. It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information.

"Unclassified Government information shall not be posted on websites that are publicly available or have access limited only by domain/Internet Protocol restriction," the proposed rule baldly states at one point.

The breathtaking implications of the DoD proposal have come as a shock not only to those who still believe in the possibility of open government, but to the DoD contractors who are expected to implement the sweeping new policy. See "Contractors resist DoD's tougher info rules" by Sean Reilly, Federal Times, July 10:

Meanwhile, many executive branch agencies have not met their obligations to post basic agency information on their web sites, such as staff directories, reports to Congress, and congressional testimony, according to a new survey from Openthegovernment.org:

NARA PROPOSES NEW RULE ON DECLASSIFICATION

A proposed new rule published for comment by the National Archives and Records Administration (NARA) last week would establish updated new procedures for the declassification of historical records containing national security information.

The proposed rule tracks fairly closely with President Obama's December 2009 executive order 13526, and thus highlights some of the limitations of that order, especially with respect to the practice of "automatic declassification."

In 1995, President Clinton issued executive order 12958 which stated that permanently valuable historical records that are 25 years old or older "shall be automatically declassified whether or not the records have been reviewed" unless they are specifically exempted. This was a dramatic break with past practice, in which declassification and disclosure without prior review were practically unthinkable.

Unfortunately, that Clinton requirement was implemented imperfectly or not at all, and some of the sharper edges of automatic declassification have been blunted by the Bush and Obama Administrations (and by Congress). Under the proposed new NARA rule, for example, non-exempt historical records can remain classified for as long as 35 years if they are part of an "integral file block" that also contains records that are merely 25 years old. And if a collection of records more than 25 years old is discovered that was "inadvertently not reviewed," that does not mean the records are automatically declassified as the executive order originally promised ("whether or not the records have been reviewed"). Rather, those old records may remain classified for up to three more years to enable review.

Since these concessions to continued secrecy in the proposed NARA rule are specifically authorized by the President's executive order, there is probably little possibility of altering them at this point.

But in other respects, the proposed NARA rule seems to deviate from and to fall short of the executive order. For example, it does not even mention the President's fundamental declaration that "No information may remain classified indefinitely" (EO 13526, sec. 1.5d). So it does not even attempt to draw any consequences for declassification policy from this basic statement of principle -- thereby diminishing the significance of the statement itself.

And except for an oblique reference to an "upcoming exemption expiration," the proposed NARA rule is silent on the "fifty year rule" in the executive order, which requires that any records that are exempted from automatic declassification at 25 years old must be declassified by the time they reach 50 years (except where they would identify a confidential human source or reveal key design concepts for weapons of mass destruction).

Although the fifty year rule does not formally take effect until June 2013, it already has practical implications for declassification policy today. For example, it means that NARA should not expend much effort on declassification review of records that are nearly 50 years old (or older), since these records are supposed to be automatically declassified without review in the near future. And it means that efforts to identify any remaining exempted material (regarding confidential human sources or WMD design) in such 50 year old records need to get underway soon.

Public comments on the proposed NARA rule are due by September 6, 2011.

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

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