Site menu:

Archives

Regularizing the Declassification Review of Classified Congressional Records

by on March 29, 2011


The Problem

The current process by which classified Congressional records are transferred to the National Archives & Records Administration (NARA), reviewed for declassification, and released to the public does not adequately reflect the importance of these records and the special status they must enjoy as records of the Legislative Branch that are managed by the Executive.  At present, no formal procedures exist for the organized review of these records, and declassification only occurs as a result of ad hoc committee requests or occasional researcher mandatory declassification review (MDR) requests.  These collections are unique in capturing concisely the views and dialogue of both senior executive and congressional officials. They are of immeasurable value to the historical record, and their declassification review should be regularized.

The classified records created and collected by the Congress provide extraordinary insight into the Legislative branch’s oversight and involvement in national security decision-making.  Transcripts of closed session hearings often contain frank assessments from agency representatives on American foreign policy, military planning, intelligence activities, and other national security concerns, as well as candid exchanges and debates between these individuals and members of Congress regarding past and future policy decisions.  This is information of constitutional significance; it demonstrates the interplay between the Legislative and Executive branches not available in any other records.

There are challenges associated with reviewing these records for declassification.  Legislative branch records are not subject to the automatic declassification provisions of Executive Order 13526, “Classified National Security Information” (the Order); however, these records contain Executive branch classified information that would otherwise be exempted from declassification under section 3.3 of E.O. 13526.

Proposals

A standardized process needs to be developed jointly with cognizant Legislative Branch officials to respect congressional ownership of these records and, consistent with House and Senate rules, ensure that these comprehensive collections of historical records are made available to the public in a manner befitting their distinct significance.

With the approval of Legislative branch officials, equity-holding agencies should review appropriate records to determine the suitability of their release.  Because most of these records lack declassification markings or instructions, any initial review for declassification will be especially time-consuming.   Furthermore, records of executive sessions, investigations, or nomination hearings that are less than 50 years old are subject to additional withholding restrictions under House and Senate Rules.

Memoranda of understanding between NARA and the Clerk of the House of Representatives and the Secretary of the Senate, respectively, should establish new procedures to enable and provide:

  • Subject to Congressional approval, all appropriate classified committee records be transferred to NARA when they reach 25 years of age and be accompanied by folder title lists and box-level descriptions of the records.  Whenever possible, folder title lists should be unclassified and made available to the public for MDR request purposes.
  • Approved classified Congressional records between 25 and 50 years old continue to be accessible to researchers through the MDR process and eligible for declassification review through the National Declassification Center (NDC).
  • With permission of the appropriate Congressional committees, the Office of the Historian at the Department of State to have access to House and Senate committee records 25 years old or older to identify especially significant records for possible inclusion in the Foreign Relations of the United States (FRUS) series.  Congress prioritized these types of foreign policy records in Public Law 102-138, which codified the FRUS series in statute.  Including representative Legislative records after they reach 30 years old will help fulfill the statute’s requirement that FRUS provide a “thorough, accurate, and reliable documentary record of major United States foreign policy decisions.”  The NDC should give high priority status in their review plan to any Congressional records identified by the Historian’s Office and approved for review and release by the corresponding committees.
  • The NDC to give high priority status to Congressional records over 50 years old in their review plan and conducts line-by-line reviews of these records.
  • Congressional committees to authorize the NDC to make all declassified records over 50 years old immediately available to the public.

Limiting the comprehensive review of Congressional records to those collections over 50 years old acknowledges and accommodates Congressional prerogatives and significantly reduces the review burden as agencies ability to exempt records over 50 years old is restricted to only those specific topics under section 3.3(h) of the Order.  These reviews would focus on identifying human intelligence sources and weapons of mass destruction information and would be limited primarily to those agencies (CIA, DOD, and DOE) which are best equipped to manage increases in workload. [1]

Benefits

A regularized declassification process for Congressional records would guarantee the public access to as complete a record as possible of committee activities. [2] While new requirements will obligate Executive branch agencies, the NDC, and Congressional committees to augment their current practices, the enhanced commitment of all parties will ensure efficient archival processing and declassification.  The implementation of a regularized review process will provide the public what they have heretofore lacked: access to a comprehensive documentary record of Congress’ contributions to national security and foreign policy decision-making.


[1] Sections 3.3(h) (2) and 3.3(h) (3) permit the exemption of additional information from declassification at 50 years with the approval of the Interagency Security Classification Appeals Panel (ISCAP).  Should the ISCAP approve additional exemptions, other subject areas and agencies may need to be included in the review process.

 

[2] The records of the rare closed sessions of the full House and Senate that involved national security information could also be addressed, although the bulk of the records of interest are committee transcripts.


Comments

PIDB on Discretionary Declassification, Other Topics | Secrecy News March 30, 2011 at 12:10 pm

[...] The new papers discuss Simplifying the Declassification Review Process for Historical Records, Discretionary Declassification and Release of Contemporary National Security Information, and Regularizing the Declassification Review of Classified Congressional Records. [...]

Steven Aftergood March 31, 2011 at 11:51 am

I strongly agree that classified congressional records are a neglected resource that should be brought into a regular declassification regime. And I think the idea of giving emphasis to the processing of 50 year old records in order to reduce the review burden is smart.

However, I think this discussion is missing several important elements. First, how many records are we talking about? I suspect that it is an enormous volume of material, particularly since there has been little previous declassification of congressional records. What are the opportunity costs involved in adopting this proposal? If the NDC were tasked with processing congressional records, how would that affect the progress of its other declassification activities? (And how big do want the NDC to become?) And then, what would all of this cost? What is a reasonable and/or acceptable amount of money to pay for the review and processing of many millions of classified congressional records? Is that money likely to be available? If not, what options might be conceived for a more limited, selective declassification project?

As with several other PIDB proposals, I think this one would lend itself to an exploratory, small-scale pilot project. Assuming congressional consent was forthcoming, a representative sample of classified congressional records could be transferred to NDC for expeditious review and declassification. This would permit a more informed estimate of the cost and level of effort required in future processing, as well as the utility and the productivity of the review process.

john paul hammerschmidt-167-193 March 31, 2011 at 11:58 am

It is in the public interest to review the declassification of Historical Records so they can be available to the public. This process should be developed jointly with the cognizant Legislative Branch officials. John Paul Hammerschmidt ~`67-`93.

John Judge April 4, 2011 at 6:16 pm

House and Senate rules that allow Commitee Chairmen and others to lock away investigative files as well as policy discussions in closed hearingsmor briefings are more problematic in some ways than Executive Branch and agency secrecy. For one thing, the files are not classified in any sense save lack of access, and entire record collections of both classified and unclassified documents become totally unavailable to public access and review. FOIA, Mandatory Declassification Review and other legal relief available to those seeking access to Executive records do not apply to Congress. Once there is a legislative decision to release files, federal agency records segregated for their review, classified or not, are available without agency review. If one could determine that a particular agency record existed and was part of the Congressional compilation then the originating agency could be approached for a MDR or FOIA determination prior to the 50 year period ending. Ironically, this means the declassified records are less accessible than the classified ones. A recent FOIA request for all agency records cited in the footnotes of the 9/11 Commission Final Report failed to secure the release of a single record. In this case, the Commission specified release of it’s investigative records in 2009, a mere four years after it made its report. Congress should follow suit. While almost all the files of the House Select Committee on Assassinations regarding JFK have been released, the same Committee’s files regarding the assassination if Dr. Martin Luther King, Jr. Remain buried due to the 50 year rule evoked by Chsirman Stokes. All those files are well past the 25 year release without review standard of Obama’s Executive Order, but remain inaccessible. Neither Congress nor the Executive Branch should have the right tomown and bury our history or their investigations of or responses to important events of public interest for decades. Democracy depends on the free flow of information and the past is prologue. Ten years at most and agent identities, current sources and methods, or information on weapons of mass destruction or military secrets related to war planning should be the new criteria for release of Congressional records in my view.
John Judge
Museum of Hidden History
Coalition on Political Assassinations

John Elliff April 11, 2011 at 10:40 am

Steve Aftergood’s suggestion of a pilot project on declassification of Hill records could be explored with respect to Church Committee records, which appear to be of high interest for historical research. The Board could contact the Senate Intelligence Committee Staff Director and the Senate Historian to discuss options. More generally, Steve’s concern about voluminous Hill classified records is unfounded. The relevant Committees have far less need for extensive classified material than do the bureaucracies. The amount of routine classified business is comparatively small, especially given the limited mumber of cleared staff and the space for classified storage. The bureaucrcies do not open a floodgate of data for the Hill.

Here are a few specific proposals for further development of the themes and goals of the paper. First, Board members should identify one or more House and Senate Member to be advocates on the issue. Without such an advocate, the recommendations may be ignored. Second, specific examples of valuable historical insights from declassified or potentially declassified Hill records should be identified. One possible example I recall may be the hearings on the National Security Act of 1947. Third, the Board should sponsor a conference that brings together scholars, present and former Hill staff and Members, and declassification/open government experts to highlight the opportunities and focus attention to the proposals. Finally, an advisory group of former House and Senate Members could be formed to add weight to the process of moving ahead in this area.

David Mengel April 22, 2011 at 12:04 pm

As a result of PIDB discussions and recommendations related to Congressional records, the Senate requested help from the National Archives to explore a method for completing declassification of Senate records more than 25 years old through the NDC.

In response, the Archivist tasked the National Declassification Center (NDC) and the Center for Legislative Archives to come up with a plan to review classified Senate committee records more than 25 years old. A plan and a pilot project are in place that will introduce these records into the declassification process in small segments. We look forward to reporting the results of the pilot.

We understand Mr. Aftergood’s concern about the potential impact on NDC resources when more records are added to the process. The other issue we face is the willingness of Executive branch agencies to review congressional records that are not subject to the Presidents’ Executive Order and Memo. Eliminating the backlog at College Park is our top priority. We believe that controlling the flow of records in this process will not significantly impact the mission of the NDC, but we will continue to monitor this and other projects to ensure we meet the goals of the President’s Memoranda.

National Coalition for History » Blog Archive » PIDB Seeks Input On “Transforming The Federal Declassification System” May 6, 2011 at 5:13 pm

[...] Ensuring that the classified records of Congress are systematically reviewed for public access. See: http://blogs.archives.gov/transformingclassification/?p=121 [...]

John Prados May 23, 2011 at 10:03 am

I concur with this paper, and also with John Elliff’s suggestion of where a useful pilot program could be started.

Archives

Links:

Subscribe to Email Updates