SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2020, Issue No. 15
December 6, 2020

2020 DECLASSIFICATION DEADLINE REMAINS IN FORCE

Classified records that turn 25 years old this year will be automatically declassified on December 31 -- despite requests from agencies to extend the deadline due to the pandemic -- unless the records are reviewed and specifically found to be subject to an authorized exemption.

Mark A. Bradley, the director of the Information Security Oversight Office, notified executive branch agencies last week that there is no basis in law or policy for deferring the automatic declassification deadline.

"Several agencies have expressed concerns that, due to diminished operational capacity and capability, they would likely be unable to complete declassification reviews of their 25-year old classified permanent records before the onset of automatic declassification on December 31, 2020. These agencies have requested some form of relief, such as a declassification delay or waiver," Mr. Bradley said in his November 20 letter.

But the executive order that governs declassification and the implementing regulations "do not permit the declassification delays or waivers requested in this instance," he wrote.

Mr. Bradley advised agencies "to adopt a risk-based approach and prioritize the review of their most sensitive records" in order to identify the most important information that might be exempt from automatic declassification.

But the fact remains that any "Originating agency information in 25-year old permanent records that are not reviewed prior to December 31, 2020 will be automatically declassified," he wrote.

Mr. Bradley's letter emphasized that automatic declassification applies only to information in records held by the originating agency, but not to information that originated with other agencies. Such other agency "equity" information is supposed to be referred to those agencies for their subsequent review.

Yet although the letter does not mention it, under the terms of the executive order (sec. 3.3d(3)) the identification of information generated by another agency is also supposed to be completed in advance of the December 31 deadline. It is unclear whether an agency's failure to identify information for referral to other agencies prior to the deadline would nullify the referral and eliminate the opportunity for subsequent review.

While records that have been automatically declassified can in principle be reclassified, that is easier said than done. Though automatic declassification can be performed in bulk, reclassification is only permitted on a document by document basis, requiring in each case a written justification by the agency head.

Last week, the State Department announced the publication of the latest volume of the Foreign Relations of the United States series documenting the Iran hostage crisis of 1979-80.

Few if any of the newly published records were subject to automatic declassification. Instead, "The declassification review of this volume . . . began in 2010 and was completed in 2018," the editors wrote.

TRUMP JR: "DECLASSIFY EVERYTHING!!!"

On November 8 Donald J. Trump Jr., the President's oldest son, tweeted: "DECLASSIFY EVERYTHING!!!" adding "We can't let the bad actors get away with it."

This was not an actual policy proposal and it was not seriously intended for classification officials or even for Trump's own father, who as President is the one ultimately responsible for classification policy.

Rather, it was directed at Trump Jr.'s 6.4 million Twitter followers, telling them that classification is a corrupt process that protects "bad actors" and that must therefore be discredited and dismantled. It's a juvenile notion but not, given the size and malleability of Trump's audience, an inconsequential one.

To the extent that national security classification is in fact required, for example, to protect advanced military technologies, the conduct of diplomacy or the collection of intelligence, it is important to establish and maintain the legitimacy of classification policy. For the same reason, abuse of classification authority can itself be a threat to national security.

The current executive order on classification policy (sect. 1.7a(1)) directs that "in no case shall information be classified . . . in order to conceal violations of law."

But this is merely a limitation on the classifier's mental state -- which is unverifiable -- and not on classification itself. It is entirely permissible for classified information to conceal violations of law, according to a judicial interpretation of the executive order, as long as the information is not classified with that specific purpose ("in order to") in mind. This is a standard that has never been enforced and that is probably unenforceable.

So one step that the incoming Biden Administration could take to enhance the integrity and accountability of classification policy would be to direct that classification may not conceal violations of US law at all, whether or not that is the intent of classifying. (It is probably necessary to specify "US" law since classified intelligence collection may often involve the violation of foreign laws.)

Donald Trump is the first president since George H.W. Bush who made no formal changes to the executive order on classification policy.

Instead, Trump often defied or disregarded existing classification and declassification policies, withholding previously public information (e.g. the number of nuclear warheads dismantled each year) and disclosing normally classified information (e.g. an actual application for counterintelligence surveillance) when it advanced his political interests to do so.

But it seems that arbitrary secrecy combined with selective declassification is not the way to stop "bad actors."

PRESIDENTIAL TRANSITION ACT, AND MORE FROM CRS

Noteworthy new publications from the Congressional Research Service include the following.

Presidential Transition Act: Provisions and Funding, November 13, 2020

Federal Scientific Integrity Policies: A Primer, November 20, 2020

The Digital Divide: What Is It, Where Is It, and Federal Assistance Programs, November 17, 2020

Vaccine Safety in the United States: Overview and Considerations for COVID-19 Vaccines, November 4, 2020

Arms Sales in the Middle East: Trends and Analytical Perspectives for U.S. Policy, updated November 23, 2020

Federal Law Enforcement Use of Facial Recognition Technology, October 27, 2020

Searches and Seizures at the Border and the Fourth Amendment, November 12, 2020

Emerging Military Technologies: Background and Issues for Congress, updated November 10, 2020

******************************

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

Secrecy News is archived at:
      https://sgp.fas.org/news/secrecy/index.html