SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2017, Issue No. 54
July 20, 2017

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

NUMBER OF NEW SECRETS IN 2016 AT NEW LOW

Last year executive branch agencies created the fewest new national security secrets ever reported, according to an annual report published today by the Information Security Oversight Office (ISOO).

The number of new secrets -- or "original classification decisions" -- was 39,240 in 2016, an all-time low. The previous all-time low of 46,800 was set in 2014. By comparison, more than 230,000 new secrets a year were being generated a decade ago. Since such record-keeping began in 1980, the total number never dropped below 100,000 until 2012. See 2016 Annual Report to the President, Information Security Oversight Office, July 2017.

While interesting and welcome from an open government viewpoint, the reported reduction in new secrets cannot bear too much interpretive weight. The figures cited by ISOO represent a compilation of dozens of estimates provided by individual agencies, based on sampling methods that are inconsistent and not always reliable.

Moreover, this statistical approach to secrecy oversight implies that all classification decisions are of equal significance. In actuality, some secrets may be of profound importance -- politically, morally, historically, or otherwise -- while many other secrets (such as administrative or technical details) will have little or no public policy interest. A simple numerical count of the number of classification decisions does not capture their relative meaning or value.

Still, assuming that the uncertainties and the ambiguities in the data have been more or less constant over time, the reduction in new secrets to a record low level is likely to reflect a real reduction in the scope of national security secrecy in the Obama years.

Classification Costs at a Record High

Meanwhile, however, the annual costs incurred by the classification system reached record high levels in 2016, the ISOO report said.

"The total security classification cost estimate within Government for FY 2016 is $16.89 billion," ISOO reported, compared to $16.17 billion the year before. Classification-related costs within industry were an additional $1.27 billion.

Classification Challenges

Because decisions to classify information often involve subjective judgments about the requirements of national security and the potential of particular information to cause damage, such decisions are sometimes disputed even within the government itself. The classification system allows for classification challenges to be filed by authorized holders of classified information who believe that the information is improperly classified.

Last year, there were 954 such classification challenges, the ISOO report said, about the same number as the year before. Classification of the information was overturned in only about 17% of those challenges, however, compared to over 40% that were overturned the year before.

The classification challenge procedure is a potentially important internal oversight mechanism that is not yet fully mature or widely utilized. For some reason, the majority of classification challenges (496) last year originated at US Pacific Command, while only a single one emerged from the Department of Justice. In fact, ISOO found that about a quarter of all agencies do not even have a classification challenge program, though they are supposed to.

If such challenges could be promoted and accepted as a routine element of classification practice, they could serve to invigorate classification oversight and to provide an useful internal self-check.

The ISOO annual report also presented new data on declassification activity, the Interagency Security Classification Appeals Panel, agency self-inspections, controlled unclassified information (CUI), and other aspects of national security information policy.

ISOO director Mark A. Bradley, whose tenure as director began this year, told the President that in the next reporting cycle, "ISOO will focus on improving our methodology in data collection and will begin planning and developing new measures for future reporting that more accurately reflect the activities of agencies managing classified and sensitive information."

SOME NEW DOD DIRECTIVES AND INSTRUCTIONS

Noteworthy new directives and instructions issued by the Department of Defense, of interest to some, include the following.

DoD Space Enterprise Governance and Principal DoD Space Advisor (PDSA), DOD Directive 5100.96, June 9, 2017:

Global Health Engagement (GHE) Activities, DOD Instruction 2000.30, July 12, 2017:

Assessment of Significant Long-Term Health Risks from Past Environmental Exposures on Military Installations, DOD Instruction 6055.20, June 6, 2017:

Conscientious Objectors, DOD Instruction 1300.06, July 12, 2017:

Department of Defense Dictionary of Military and Associated Terms, as of July 2017:

OLC NOMINEE: EVERY MEMBER OF CONGRESS CAN DO OVERSIGHT

The nominee to lead the Justice Department Office of Legal Counsel acknowledged that all members of Congress have the authority to conduct oversight of the executive branch, and that agencies have a responsibility to accommodate requests by members for information needed to perform their oversight function.

That might seem like a statement of the obvious. But the Office of Legal Counsel issued a controversial opinion earlier this year that took a much more limited view of congressional oversight power.

"The constitutional authority to conduct oversight -- that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities -- may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen)," the OLC opinion said. "Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee." See Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, Office of Legal Counsel, May 1, 2017.

Objecting to this narrow OLC conception of oversight, Sen. Chuck Grassley placed a hold on the nomination of Steven A. Engel to become the new Assistant Attorney General in charge of the OLC until Mr. Engel provided an acceptable response to Grassley's concerns on the matter.

Yesterday, Senator Grassley withdrew his hold after Mr. Engel admitted, in written responses to questions from Grassley entered into the Congressional Record, that the OLC opinion was defective.

"Mr. Engel's responses, both in writing and in person, indicate that he agrees each Member, whether or not a chairman of a committee, is a constitutional officer entitled to the respect and best efforts of the executive branch to respond to his or her requests for information to the extent permitted by law," Sen. Grassley said.

"I am satisfied that Mr. Engel understands the obligation of all Members of Congress to seek executive branch information to carry out their constitutional responsibilities and the obligation of the executive branch to respect that function and seek comity between the branches. Therefore, I agree a vote should be scheduled on his nomination, and I wish him the very best in his new role," he said.

See Removal of Nomination Objection, Congressional Record, July 19, 2017, pp. S4077-4079.

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

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