Discretionary Declassification and Release of Contemporary National Security Information
Classification and declassification decisions are based on risk assessments and time-based standards for withholding. Agencies determine whether to protect information through classification by evaluating the damage its release would cause to the national security. Information deemed worthy of classification is marked as such, assigned a declassification date based on its perceived sensitivity, and protected for the duration of its classification. Too little attention is given to the value of declassifying information ahead of these deadlines or not classifying information in the first instance.
A Role for the Executive Branch
Policymakers should consider the advantages of declassifying information before prescribed deadlines or not classifying certain information. Discretionary declassification of information less than twenty-five years old should become a hallmark of the classification system, and less information should be classified from the start.
Executive Order 13526 (the Order) encourages discretionary declassification when the benefits of protecting information are outweighed by the public’s interest in its disclosure. At present, however, this provision is seldom used. Discretionary declassification provides policymakers a means of aligning classification determinations with contemporary events and superseding the abstract deadlines associated with time-based declassification. To a greater extent, declassification of contemporary information freed from the constraints of arbitrary declassification dates empowers democratic discourse and enables more transparent and informed decision making. As President Barack Obama’s May 2010 decision to release the size of the U.S. nuclear stockpile demonstrated, these discretionary determinations have the capacity to strengthen national security, reduce the quantity of material that is classified, and hasten the public’s access to Government information. The value of discretionary declassification is compounded when decisions are incorporated into agency classification and declassification guidance.
As they revise their classification guidance in accordance with the Fundamental Classification Guidance Review requirement of the Order, agencies should also reduce the duration of classifications. When information is classified because of the sensitivity of a decision rather than the inherent sensitivity of the supporting information, declassification instructions should specify concrete events (e.g., “conclusion of mission”) in place of arbitrary dates or provide an event that may supersede the date. In some cases, agencies should apply a future date, less than 25 years, possibly only weeks or months, when the classification would be “self-extinguishing.”
In recognition of the public interest and the costs of protecting information in the digital age, agencies should better employ the presumption against classification. Maintaining massive amounts of information as classified limits the choices available to policymakers and threatens national security by restricting information sharing and affording costly protection to increasingly unmanageable amounts of data. Treating increasing volumes of Government information as classified heightens public cynicism toward the legitimacy of classification and, in some instances, fosters an attitude of indifference amongst authorized users toward their information security responsibilities. By reducing the quantity of information protected, agencies can restore public trust in the system’s validity and devote resources to protecting only the worthiest items.
A Role for the Legislative Branch
In recent years, Congress has recognized the value of specifically-directed, expedited declassification review through legislation. Statutes such as the President John F. Kennedy Assassination Records Collection Act and the Nazi War Crimes Disclosure Act have mandated accelerated declassification review for classified records associated with topics of great national interest and directed agencies to withhold only the narrowest categories of information when they conduct their reviews. Contemporary Congressional commissions, such as the National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission), have likewise encouraged the release of their records to the fullest extent possible. 
Records released through these efforts have broadened Americans’ historical understanding and, in some cases, compelled agencies to revise their declassification guidance in favor of greater disclosure. In the future, when controversy surrounding a past Government action or historical event becomes extraordinarily acute, Congress should contemplate appropriating funds for topical review boards to support the National Declassification Center in expediting the declassification review of all reasonably related Federal records.
Agencies and the public will greatly benefit from decisions to discretionarily declassify or maintain as unclassified categories of contemporary national security information. By protecting less information as classified, agencies will reduce the costs associated with storing, transmitting, and declassifying classified information. Tailoring release decisions to contemporary circumstances will overcome some of the obstacles and delays associated with declassification and allow for more rapid public access to Government information.
Minimizing the quantity of information classified will increase public confidence in the system while bolstering the Government’s ability to protect the information most deserving of classification. Of course, the intended benefits of a better informed public and increased public confidence in the decisions of its Government are only realized if releases are full disclosures of the matter revealed. This might only be a number, as in the size of the nuclear stockpile or the aggregate amount of the intelligence budget, but may also be a large volume of records explaining a major effort of the government. Whatever the case, advantageous release must be intended to fully inform, and not to mislead.
 Commissions like the 9/11 Commission worked diligently with classification authorities to produce extensive unclassified reports (by avoiding key words, dates, names, etc.) and have captured related classified information with an eye toward early declassification.