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Final Call for Topics

by on January 23, 2014


The PIDB still wants your suggested topics that you feel agencies should prioritize for declassification.  Beginning on January 27, 2014, the PIDB will begin compiling the responses and comments it received on this blog.  It will then use those ideas and report back to the public its conclusions and suggested next steps to assist the President in his goal of transforming the security classification system.

Please submit your ideas as soon as you can, but no later than January 26, 2014 to have the PIDB receive them before it issues its upcoming report.  The PIDB intends to share its report during the coming months and engage the public in more discussions about ways it can help improve the declassification process.

We thank all of those who have already participated on the blog and look forward to hearing more of your ideas.


Comments

Patrice McDermott January 24, 2014 at 11:34 am

From the PCLOB report released today (23 Jan)

Recommendation 7: Regarding previously written opinions, the government should perform a declassification review of decisions, orders and opinions by the FISC and FISCR that have not yet been released to the public and that involve novel interpretations of FISA or other significant questions of law, technology or compliance.

Although it may be more difficult to declassify older FISC opinions drafted without expectation of public release, the release of such older opinions is still important to facilitate public understanding of the development of the law under FISA. The government should create and release declassified versions of older opinions in novel or significant cases to the greatest extent possible consistent with protection of national security. This should cover programs that have been discontinued, where the legal interpretations justifying such programs have ongoing relevance.

I strongly endorse this recommendation. I know these are more contemporaneous than the Board anticipates, but this information is critical. As is

Recommendation 12: The scope of surveillance authorities affecting Americans should be public.

In particular, the Administration should develop principles and criteria for the public articulation of the legal authorities under which it conducts surveillance affecting Americans. If the text of the statute itself is not sufficient to inform the public of the scope of asserted government authority, then the key elements of the legal opinion or other documents describing the government’s legal analysis should be made public so there can be a free and open debate regarding the law’s scope. This includes both original enactments such as 215’s revisions and subsequent reauthorizations. While sensitive operational details regarding the conduct of government surveillance programs should remain classified, and while legal interpretations of the application of a statute in a particular case may also be secret so long as the use of that technique in a particular case is secret, the government’s interpretations of statutes that provide the basis for ongoing surveillance programs affecting Americans can and should be made public.

The declassification of such secret law should not, of course, be limited to that authorizing surveillance.

Both of these aspects of current classification practices should be part of “next steps to assist the President in his goal of transforming the security classification system.”

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William Burr January 24, 2014 at 11:38 am

The Board’s report on Transforming the Security Classification System http://www.archives.gov/declassification/pidb/recommendations/transforming-classification.pdf includes an important and valuable recommendation for a close look at the “formerly restricted data” [FRD] rules which prevent the declassification of information about the past deployment of U.S. nuclear weapons, even when it has long been overtaken by events. According to PIDB, “A process should be implemented for the systematic declassification review of historical FRD information.” To make it possible to declassify information about the historical locations of nuclear weapons, PIDB raises the possibility of converting FRD about the deployments into the “national security information” category. An Act of Congress http://www.fas.org/sgp/news/secrecy/2012/05/053012.html has already laid the way for doing so and amendments to Executive Order 13526 would complete the fix.
If the historical locations of the U.S’s overseas nuclear deployments were no longer under a blanket exemption, then security reviewers could declassify at least on a case-by-case basis. Historians could then write more easily about the role that nuclear weapons deployments played in U.S. diplomatic relations with a wide range of countries around the world.

Time and time again, researchers at the National Security Archive and others as well have encountered the problem of Cold War-era exempted FRD. The Defense Department and other agencies have answered many FOIA and mandatory declassification review requests with heavily excised documents because of the FRD exclusion. While some records on the deployments could be found at the National Archives before the late 1990s, for the most part they disappeared from the files because of special reviews required by the Kyl-Lott Amendment https://www.fas.org/sgp/congress/hr3616am.html. Partly triggered by a scare over alleged Chinese spies in the U.S. nuclear complex but also by the discovery of “unmarked FRD” in archival records, Kyl-Lott was a setback to the progress made by the Clinton administration in declassifying Cold War-era archival records. It required Department of Energy security reviewers to impound previously open archival records and to scrub them of restricted data (RD) about nuclear weapons design and fissile materials production or FRD about the historical locations and other topics. As it turned out, much of what the DOE reviewers found was in the FRD category, most likely documents concerning the historical deployments whose sensitivity was arguable.

A number of postings on the National Security Archive Web site have addressed the problem of the historical overseas locations of U.S. nuclear weapons and the problems raised by FRD. One in 1999 concerned a then recently declassified, but heavily excised, Defense Department history from 1978 on the history of nuclear custody. Drawing on that history, Archive senior analyst William Burr working with Robert S. Norris (then directing the Natural Resources Defense Council’s nuclear project) and independent writer William Arkin tried to tease out the names of all of the countries where the United States had deployed nuclear weapons during the Cold War. They published two articles on the deployments in The Bulletin of the Atomic Scientists. One, “Where They Were,” appeared in the Nov-December 1999 issue with supporting documents in an Archive-NDRC posting http://www2.gwu.edu/~nsarchiv/news/19991020/index.html. The authors mistakenly identified Iceland as a storage site for nuclear weapons but quickly learned that two islands—Iwo Jima and Chichi Jima–in the U.S. occupied Bonin Islands were storage sites before they were restored to Japan in 1968. This new knowledge led to another article, “How Much Did Japan Know?”, in the January-February 2000 issue of The Bulletin, which was supported with another Archive-NRDC posting http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB22/index.html

In 2006, the Archive published an Electronic Briefing Book entitled “How Many and Where Were the Nukes?” http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB197/index.htm Specifically addressing the FRD problem, the EBB’s second part included a heavily excised inventory of the overseas locations as of 1968 that the Defense Department had recently released. The posting made this point, among others: “declassifying information on the Cold War deployments is a complex problem, but the U.S. public deserves something more reasonable than the current blanket policy of secrecy.”

In early 2013, the persistence of the FRD problem, but also the promise of the PIDB reform proposal, occasioned an entry http://nsarchive.wordpress.com/2013/04/12/atomic-energy-act-prevents-declassification-of-site-of-1958-broken-arrow-nuclear-weapons-accident/ on the Archive’s blog Unredacted. It concerned the Air Force’s recent partial declassification of documents about a nuclear weapons accident in Morocco in January 1958, although the word “Morocco” was excised from the documents. The posting closed with an endorsement of the PIDB proposals, asserting that without their enactment “the Air Force and other agencies will continue to redact obsolete information about Cold War nuclear deployments.”

Another blog entry http://nsarchive.wordpress.com/2013/06/28/nato-shape-histories-declassify-restricted-nuclear-data/ called readers’ attention to a remarkable series of publications by historians working for the North Atlantic Treaty Organization. The historians had secured the declassification of thousands of pages of histories of the Supreme Headquarters Allied Powers Europe [SHAPE], the seat of command for NATO’s Supreme Allied Commander Europe. These are invaluable histories but what was especially striking about them was the common-sense approach they took regarding information about U.S. nuclear deployments in Western Europe, whether actual or prospective. According to the posting, NATO’s “pragmatic” decision “usefully illustrates the archaic character of FRD classification rules.” Declassification would have been unlikely if the NATO histories had gone through the U.S. review process.

Implementing the PIDB’s recommendations on FRD would be an important step in fixing the U.S. classification/declassification system and could only expedite the work of NARA’s National Declassification Center, which sees nuclear secrecy as “the greatest challenge” http://www.archives.gov/declassification/ndc/reports/2013-biannual-january1-june30.pdf to the review of the backlog of classified records. Nevertheless, this will be an uphill fight because opposition to reform can be found in the mid-levels of the national security bureaucracy, especially at Defense and the Energy Department, while senior officials at Defense who support reform are leaving government. All the same, solving this problem would provide the Obama White House with a significant accomplishment in increasing government transparency.

If and when the FRD problem is resolved, some U.S. government agencies may still block the declassification of past deployments, for example, by citing damage to “national security” or “ongoing diplomatic relations.” It is also possible that some governments will object to the U.S. government disclosing facts about past nuclear deployments in their countries. But at least the problem will be in the open and one less arcane concept will be available to security reviewers to prevent the declassification of valuable information on U.S. nuclear history.

William Burr, Senior Analyst, The National Security Archive

[Reply]

Emily Feltren January 27, 2014 at 8:53 am

The American Association of Law Libraries (AALL) supports the Privacy and Civil Liberties Oversight Board recommendation to make available opinions of the Foreign Intelligence Surveillance Court. We also support the declassification of White House Office of Legal Counsel opinions.

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Dr. Susan Maret January 27, 2014 at 9:02 am

In response to the PIDB’s Transforming Classification initiative, the list of classified U.S. government records below is submitted to the Board for declassification:

-Defense Technical Information Center classified technical reports before 1970

-DoD Motion Picture and Audiovisual Materials before 1980

-DOE Office of Scientific and Technical Information (OSTI) classified technical reports before 1970

-NSA classified technical reports before 1945

-Psychological Strategy Board records from 1951-1953 held at the Truman Presidential Library in Independence, MO

-Psychological Strategy Board records series held at the Eisenhower Presidential Library, Abilene KS

-Operations Coordinating Board file series 1953-1961 held at the Eisenhower Presidential Library, Abilene KS

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Dan Alcorn January 29, 2014 at 8:39 am

In light of the State of the Union speech, it should be noted that classification is in large part an executive branch function. The President could address declassification of priority topics identified on this blog without Congressional action. This would advance restoring public trust, which observers have noted is lagging at this point.

[Reply]

Kel McClanahan January 29, 2014 at 10:02 am

As you likely know, the CIA has installed a system of four computers at the National Archives in College Park called the CIA Research Search Tool, or CREST. CREST includes a vast number of declassified CIA historical records and is an invaluable search tool.

However, the main problem with CREST is that only a small percentage of records in it are available on the Internet. To access the vast majority of CREST records, you must physically visit the Archives and sit at one of those four computers, which are located in a room which is only open on weekdays (despite the fact that the Research Room downstairs is open on Saturdays). This makes CREST records, which the CIA considers to be “publicly available,” completely inaccessible to a significant majority of Americans.

In an effort to make these ostensibly “public” records actually public, some people have filed FOIA requests for the entire CREST collection, planning on making them publicly available on the Internet themselves. Bizarrely, the CIA rejects these requests, citing Exemption (b)(1), saying that the collection is classified.

In other words, while the entire CREST collection is only unclassified and declassified records, the CIA considers the entire CREST collection as a whole to be classified. Presumably the CIA is making some sort of determination that all the records in CREST taken together are classified under a mosaic theory; we do not know. What we do know is that no matter who requests the collection, or how much information they provide in the request, the request is rejected under Exemption (b)(1).

This is an unreasonable position, and the PIDB should take steps to overrule it. Moreover, it is extremely simple to do, with a huge payoff. By reversing one single classification decision, the PIDB makes it possible for 11 million pages to be made publicly available. You do not even have to shoulder the burden of making them publicly available, because there are private requesters who will do that for you. It’s a win for everyone involved, and a definite vindication of the automatic declassification provision of the Executive Order (which is what CIA cites for why it created the CREST system).

As an aside, the CIA may argue that there would be a huge burden if it were forced to do this. This is not a good argument for two reasons. Number one, it’s false—the CIA would only face a huge burden if it were to reproduce the database in paper form. If it were to simply copy the CDs/DVDs which presumably comprise the CREST system to other CDs/DVDs and release those, the burden would be completely manageable. The CIA has historically made the argument that it does not have to release electronic records because of its Byzantine FOIA processing system, but these CDs/DVDs have already been moved outside the CIA, to NARA.

Second, even if it were a burden, the burdensomeness of declassifying something is not a legitimate reason for keeping it classified. By Executive Order, successive Presidents have established specific criteria for keeping information classified, and “declassifying it will be hard” is not one of them. Moreover, as the volume of records in the CREST system increases, the burden will only increase, therefore allowing the CIA to keep it collectively classified forever in clear violation of the Executive Order.

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