SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 101
December 14, 2016

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

ON DECLASSIFICATION OF "PROPERLY CLASSIFIED" INFORMATION

The 2009 executive order 13526 on classification allows for the possibility that -- "in some exceptional cases" -- the protection of classified information may be outweighed by the public interest in disclosure of the information so that the information should be declassified (sect. 3.1d).

The order says that "when such questions arise," they should be referred to the head of the originating agency head for resolution. But there is no formal mechanism for raising such questions. There should be.

As things stand, "properly classified information" is beyond the reach of the Freedom of Information Act, the mandatory declassification review program, and the internal classification challenge procedures.

Yet because the classification system is permissive, defining conditions under which information "may" be classified, there is much "properly classified" information that need not be classified.

In many cases, this needless classification is of no real significance. There is a vast sea of classified information that has no direct bearing on questions of public policy. But in other cases, it matters a great deal, affecting national decisions on war and peace, the conduct of intelligence and foreign policies, and more. Under those circumstances, there should be a formal procedure to trigger (or at least to consider) the declassification of such properly classified information. Crucially, the decision whether to declassify in such cases must not be left exclusively to the agency that made the original decision to classify.

This was one of the proposals discussed (by me) at a meeting last week of the Public Interest Declassification Board, an official advisory body.

Other proposals presented at the meeting are described here:

The premise of the Public Interest Declassification Board meeting was that the incoming Administration is likely to issue its own executive order governing classification policy, as most recent recent presidents have done, and that recommendations for improving classification and declassification procedures should therefore be solicited and developed.

It is not yet known, however, whether the Trump Administration will issue its own revised classification policy. It is not obliged to do so (Bush 41 did not) and may not find it necessary.

And if a new executive order on classification is forthcoming, it may not be an "improvement" from all points of view.

In previous transitions from Democratic to Republican Administrations (i.e. Carter to Reagan, and Clinton to Bush), the Republican presidents took a more expansive view of classification policy than their predecessors, and gave reduced emphasis to declassification.

PRESIDENTIAL AUTHORITY OVER TRADE, & MORE FROM CRS

The Trump transition team has promised vaguely that the incoming Administration will deliver "a seismic and transformative shift in trade policy."

But executive authority over trade policy exists within a framework of law, as a new report from the Congressional Research Service explains, and there are legal limits to what the President can do.

"The United States Constitution gives Congress the power to impose and collect taxes, tariffs, duties, and the like, and to regulate international commerce. While the Constitution gives the President authority to negotiate international agreements, it assigns him no specific power over international commerce and trade."

"Through legislation, however, Congress may delegate some of its power to the President, such as the power to modify tariffs under certain circumstances. Thus, because the President does not possess express constitutional authority to modify tariffs, he must find authority for tariff-related action in statute." See Presidential Authority over Trade: Imposing Tariffs and Duties, December 9, 2016:

Other new and updated reports from the Congressional Research Service include the following.

The Federal Budget Deficit and the Business Cycle, CRS Insight, December 9, 2016:

"Fiscal Space" and the Federal Budget, CRS Insight, December 9, 2016:

Creating a Federal Advisory Committee in the Executive Branch, updated December 9, 2016:

Changing the Senate Cloture Rule at the Start of a New Congress, December 12, 2016:

Qatar: Governance, Security, and U.S. Policy, December 9, 2016:

Commercial Space Industry Launches a New Phase, December 12, 2016:

Password Sharing May Be a Federal Crime: Nosal Part I (and II), CRS Legal Sidebar, December 9, 2016:

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

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