SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 99
November 25, 2013

Secrecy News Blog: http://blogs.fas.org/secrecy/

PRIORITIZING TOPICS FOR DECLASSIFICATION

The Public Interest Declassification Board, which advises the President on classification and declassification policy, is proposing to recommend that certain historically significant topics and events be prioritized for expedited declassification.

The Board has invited public input into the formulation of its recommendations for prioritization, which currently fall into five broad categories: Topics 25 Years Old and Older, Topics 25 Years Old and Younger, Topics Related to Formerly Restricted Data (FRD) Information, General Topics of Interest, and Topics Specifically Gathered from Presidential Libraries.

The working list of potential declassification topics that are less than 25 years old includes many worthy subjects including, for example, 9/11 Commission records and "Guantanamo / Detainee issues." On the other hand, it does not yet include many other high priority items for declassification, such as the Senate Intelligence Committee's massive report on CIA interrogation practices.

"We invite the public to comment on these topics and offer its own suggestions on what should be on this list of topics younger than 25 years," the Board statement said. "We hope the List will serve as a guide to aid agencies in reviewing the information the public wants to see. This is your opportunity to spark a much-needed conversation about the sustainability of the current declassification system and what our priorities collectively should be to make the most impact." Comments can be submitted through the Board's blog, Transforming Classification.

Is Prioritizing Declassification Topics the Right Approach?

There is a longstanding disagreement over whether it is appropriate to prioritize some areas for declassification because of their topicality, or whether it is better to gradually declassify everything in an orderly and systematic way. (Or whether the right answer, as I thought, was to do some of both.)

Some have argued that prioritization of special declassification projects is the wrong way to go.

"If effective, routine, comprehensive systematic declassification review were in place for all agencies, and if the public believed in the integrity and thoroughness of those review processes, then important documentation... would be routinely reviewed and declassified without an expensive special search," said Rutgers historian Warren F. Kimball at a 2000 hearing of the Senate Committee on Governmental Affairs.

"Those boutique declassification efforts... devour resources that should go to systematic declassification review," Prof. Kimball said then. "Some of those special searches have been legitimate. Some have been trivial. Many have been repetitive and unrewarding.... All have been exorbitantly expensive in both money and work hours. All were or should have been unnecessary."

Not only are topic-based "special searches" more resource-intensive than regular, systematic declassification, but they may also subtly distort the historical record by removing individual documents from their context, and by favoring "popular" topics over others whose deeper significance may be unrecognized.

That may all be true, say proponents of prioritization. But the reality is that many records that are supposedly "historically valuable" are of no interest to anyone, and will not be read even if they are declassified. And besides, the current systematic declassification review program cannot keep up with the current and anticipated declassification workload. So in practice, there is little choice but to prioritize.

Whichever argument seems more persuasive, the Public Interest Declassification Board, composed of presidential and congressional appointees, has now tipped the balance in favor of prioritization. The support of the Board doesn't guarantee that it will happen, but it makes the issue a newly live one.

If prioritization of particular declassification topics does go forward, then there are important questions to consider beyond the identification of the topics themselves. One question is, how can the declassification of the prioritized topics be made as productive as possible? Another question is, what happens to all the documents that are not prioritized?

Revise the Standards for Prioritized Declassification

Specialized declassification projects have the greatest impact when they do more than simply move a particular topic to the front of the queue for declassification. The best of them, like the one performed by the JFK Assassination Records Review Board, also involve revised standards for declassifying the prioritized information in order to maximize disclosure.

Interestingly, it appears that agencies already tend to be more forthcoming in declassification projects that they initiate themselves than they are when applying legacy declassification standards in response to FOIA requests. This is true even (or especially) in the case of secrecy-intensive organizations like CIA or NSA. (The CIA and the National Declassification Center will sponsor a symposium in January on the history of the Berlin Wall featuring some newly declassified documents.)

In any event, the utility of the prioritization approach to declassification could be maximized if the adoption of a prioritized topic were accompanied by an appropriate revision of declassification criteria to ensure that only the least necessary amount of information relevant to the topic will be withheld. (Ideally, such a revision of project-related declassification standards would be performed or supervised by an independent third party, such as the Interagency Security Classification Appeals Panel.)

An updated review of classification and declassification criteria is clearly necessary in order to overcome residual, obsolete barriers to disclosure.

When DNI James Clapper released voluminous records concerning foreign intelligence surveillance programs last week, he noted that "President Obama directed me to declassify and make public as much information as possible about certain sensitive programs while being mindful of the need to protect sensitive classified intelligence activities and national security."

The tacit implication was that without the President's direction, the DNI would not "declassify and make public as much information as possible...." Similar direction to "declassify as much as possible" ought to be applied in the case of each prioritized declassification project.

Set a Drop Dead Date for Classification to Expire

A necessary consequence of prioritization of some records for declassification is that other records will be pushed back in the queue. What this means is that, without remedial action, more and more records may never be formally declassified.

President Obama's executive order 13526 declared for the first time that "No information may remain classified indefinitely" (section 1.5d). But it is not clear how that dictum is to be translated into actual declassification policy.

Records that were exempted from "automatic declassification" at 25 years were supposed to be automatically declassified beginning at the end of this year when they turned 50 years old. Exceptions had been provided for records that revealed the identities of human intelligence sources or of key design concepts for weapons of mass destruction. In practice, however, it appears that much more than such narrow categories will now be withheld. According to a January 23, 2013 notice from the Information Security Oversight Office, numerous agencies have been granted authority to exempt records from declassification even at the 50 year point.

Unfortunately, this continuing deferral of declassification compounds the problem and may take it beyond any practical resolution.

What is needed instead is a "drop dead date" beyond which classification controls will simply expire. Records of a certain age would not need to be "reviewed" for declassification. In fact, they would not need to be formally "declassified" at all. Rather, their status as classified records would just terminate.

A drop dead date would be consistent with the President's direction that classification cannot continue indefinitely. And as backlogs of classified records continue to accumulate, this approach would finally cut through the endless and increasingly intractable cycle of declassification review.

If, as the PIDB recommends, some records are going to be prioritized for declassification, then new consideration should be given to a drop dead date for all of those classified records that remain "unprioritized" for decade after decade.

In its version of the pending FY 2014 intelligence authorization bill (section 307), the Senate Intelligence Committee proposed to extend the charter of the Public Interest Declassification Board from December 2014, when it would otherwise expire, to December 2018.

MEXICO'S OIL AND GAS, AND MORE FROM CRS

New and newly updated reports from the Congressional Research Service that Congress has declined to make available to the public online include the following.

Mexico's Oil and Gas Sector: Background, Reform Efforts, and Implications for the United States, November 18, 2013:

U.S.-Mexico Water Sharing: Background and Recent Developments, November 19, 2013:

Interstate Natural Gas Pipelines: Process and Timing of FERC Permit Application Review, November 19, 2013:

Cancellation of Nongroup Health Insurance Policies, November 19, 2013:

Preserving Homeownership: Foreclosure Prevention Initiatives, November 20, 2013:

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, November 18, 2013:

U.S.-China Military Contacts: Issues for Congress, November 20, 2013:

Central Asia: Regional Developments and Implications for U.S. Interests, November 20, 2013:

Algeria: Current Issues, November 18, 2013:

U.S. Textile Manufacturing and the Trans-Pacific Partnership Negotiations, November 20, 2013:

A PICTORIAL HISTORY OF THE RUSSIAN NUCLEAR PROGRAM

Newly published briefing slides from a Los Alamos history of the Russian nuclear weapons program include rare images and photographs of key personalities and facilities in the Russian (formerly Soviet) nuclear program.

See "History of the Russian Nuclear Weapon Program" by Houston T. Hawkins, Los Alamos National Laboratory, November 19, 2013 (large PDF file):

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

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