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A “fundamental transformation” of the classification system, as proposed by President Obama, is long overdue. Experts of all political stripes have agreed for decades that overclassification is rampant and that it carries unacceptable costs—to national security, to representative democracy, and to the public fisc. The extent and persistence of the problem underscore the need for change that is profound rather than incremental.

There are three aspects to transforming the classification system: (1) revisiting the rules that govern classification decisions; (2) ensuring compliance with the rules; and (3) improving the declassification process. The second aspect is the subject of an upcoming Brennan Center report and the main focus of this white paper, although we present suggestions in all three categories.

I. Revisiting the rules. Agency classification guides provide the substantive criteria for derivative classification decisions not based on source documents. There are several problems with the guides: they are outdated, and much of the information they identify no longer requires classification (if it ever did); they give derivative classifiers far too much discretion, in essence having them act as original classifiers; and many are opaque and unwieldy, to the point that classifiers have no idea how to use them. The President has ordered agencies to review and revise their guides. This effort is critical to the success of classification reform, yet early reports suggest that not all agencies have approached the undertaking in the right spirit. The President should make clear that this is a priority.

A second problem is that agencies have interpreted the National Security Act of 1947 to permit the classification of “intelligence sources and methods” regardless of whether disclosing the information would cause harm. This interpretation is a major source of needless classification. The President should ask Congress to amend the Act to specify that “intelligence sources and methods” may be classified only if their disclosure could reasonably be expected to damage national security.

II. Ensuring compliance with the rules. Currently, there are many powerful incentives to classify documents even when the national security implications are questionable. To name a few: There is a culture of secrecy among many agencies; information control provides a useful weapon in agency turf wars; employees who fail to protect information are subject to harsh sanctions; and there is tremendous pressure to err (and to err liberally) on the side of secrecy, given the perceived stakes. There are essentially no forces pushing in the other direction, as the process of classifying documents is quick and easy; those who needlessly classify documents are never held accountable; and there are no rewards for challenging improper classification decisions.

Whatever rules are adopted for classification, compliance with those rules will continue to be an elusive goal unless the underlying incentive structure is changed and accountability is introduced. To this end, our upcoming report will set forth a five-prong proposal, to be implemented as a pilot program (via executive order and implementing ISOO directive) at one or more agencies:

A. Electronic questionnaires. Classifiers would be required to enter answers to a series of drop-down questions when classifying a document; the answers would become part of the document’s metadata. In addition to providing basic information that already is required (e.g., personal identifier, date or event for declassification, etc.), original classifiers would be required to articulate why disclosure of the information could reasonably be expected to harm national security; derivative classifiers, when relying on a guide, would be required to explain how the information meets guide criteria. Classifiers operating under an urgent deadline could provisionally classify the information for a 10-day period without answering all the questions.

The purpose of the electronic questionnaire is fourfold: (1) requiring classifiers to articulate the justification for classification would help to ensure that such justification exists; (2) the process of completing the questionnaire, while minimally burdensome, might dissuade those whose only reason for classifying the document is “Why not?”; (3) the information provided would be used to facilitate the audits discussed below; and (4) the metadata could be used to help manage the information (for example, it would facilitate automatic declassification).

B. Audits of classifiers. For each agency participating in the pilot program, the Office of the Inspector General (OIG) would be asked to conduct a periodic “spot audit” of original and derivative classifiers, reviewing a sample of classification decisions for each person audited. The Information Security Oversight Office (ISOO) would provide training and guidance to OIGs on how to conduct the audits. OIGs could use the questionnaire answers to assess whether a facially legitimate justification for classification existed. In those cases where OIGs had questions that they lacked the expertise to resolve, the Interagency Security Classification Appeals Panel (ISCAP) would serve in a consulting role.

C. Consequences for the classifier. Employees found to be overclassifying at high rates would be subject to repeat audits every six months. Agencies would put in place a series of mandatory escalating consequences for employees who failed to self-correct over time, beginning with remedial training and culminating in temporary or even permanent revocation of classification authority.

D. Consequences for the agency. Because sanctions at the individual classifier level will go only so far if the agency’s culture of secrecy persists, and because organizational culture is a top-down phenomenon, managers must be held accountable for the performance of the employees they supervise. If managers failed to instill proper classification practices among their employees (as evidenced by OIG audits), that failure would be reflected in their personnel evaluations and affect their eligibility for bonuses and other performance-related benefits.

Moreover, if successive OIG audits suggested a high rate of overclassification agency-wide, the agency would be required to develop a specific plan—and to allocate the necessary resources—to reduce that rate. ISOO would review the plan and could order revisions. Once approved by ISOO, the plan would be forwarded to the President. If the agency did not meet its goals in subsequent audits, it would be required to submit a report to ISOO explaining any shortcomings and detailing its plans for addressing them.

E. Rewards for challenges. Although Executive Order 13526 obligates authorized holders of information to challenge classification decisions that appear improper, they rarely do so. Employees at agencies participating in the proposed pilot project would be able to bring challenges anonymously, and those who succeeded would be given small cash awards under the law that permits cash prizes for “a special act or service in the public interest.” 5 U.S.C. §§ 4503-4504.

III. Improving declassification. Neither human nor computer effort is up to the task of reviewing the massive backlog of documents awaiting so-called “automatic” declassification. The only solution is for the President to put meaning behind the term “automatic” by declassifying the documents through executive order. (First, Congress must amend the “Kyl-Lott Amendment” so that page-by-page review is required only for documents that are likely to contain information about atomic weapons or nuclear material.) Although the information thus disclosed would be more than 25 years old, it is possible that some minute fraction of that information might still be sensitive. Allowing the continued, indefinite classification of hundreds of millions of records that are critical to understanding our nation’s history and identity is the greater evil.

The most successful elements of current declassification policy are Mandatory Declassification Review and ISCAP. They should be “scaled up.” Agencies currently spend only about 0.5% of their information security budgets on declassification; they should be required to increase that percentage to 5%. ISCAP’s influence should be amplified by giving its decisions precedential value, and consideration should be given to establishing multiple panels (turning “ISCAP” into “the ISCAP system”) in order to increase the volume of documents reviewed.



The Public Interest Declassification Board will host a Public Forum on Thursday, May 26, 2011 on Transforming the National Security Classification System.  The meeting will focus on the Board’s eight draft White Papers on transforming classification, the White Papers submitted by the public for the Blog, and additional ideas you have on transforming the classification system.  The Board looks forward to hearing your thoughts.

When: May 26, 2011 from 10am-12:30pm

Doors Open: 9:45am

Where: McGowan Theater in the National Archives Building

Address: 700 Pennsylvania Avenue, NW, Washington, DC

(Please enter through the Constitution Avenue entrance.)

RSVP: pidb@nara.gov

To facilitate access through the Special Events entrance, the PIDB asks that all attendees RSVP by e-mail and provide their full name and contact information.

The PIDB would like to hear from all interested parties.  To help with scheduling, please e-mail the PIDB if you wish to speak so that they may plan accordingly.  In the interest of time, please limit your comments to five minutes.



Now that you have had the opportunity to review and comment on the Board’s draft proposals for transforming the classification system, we would like to invite you to submit your own specific ideas.  Submissions should:

  • Provide transformative but plausible ideas and actionable implementation strategies
  • Promote innovation and especially address the challenges of classified digital data
  • Be between 800 and 1200 words

The deadline for submitting draft proposals is May 13, 2011.  All submissions should be provided via email to pidb@nara.gov.  The Board will review the submissions, group them by topic, and post them for public comment accordingly on May 18.  We reserve the right not to post white papers which are off topic.  Your submissions and the Board’s prior white papers will be discussed in a public forum on May 26, 2011 at the National Archives Building.



Background

Classified information concerning the technical design and manufacture of atomic weapons and the production or use of special nuclear material in the production of energy is categorized as Restricted Data (RD) by the Department of Energy (DOE) under the Atomic Energy Act of 1954.  Formerly Restricted Data (FRD) is a separate category of information (defined under 10 CFR 1045) concerning the military utilization of atomic weapons as jointly determined by DOE and the Department of Defense (DoD).

FRD includes broad categories related to military utilization, including storage locations, military planning information, stockpile numbers, negotiations with foreign nations concerning nuclear weapons, and testing information.  Unlike information classified by Executive Order 13526, “Classified National Security Information,” (the Order) or its predecessor orders, RD and FRD information remains classified indefinitely with no distinction between sensitive, current information and innocuous, historical information.

While there is high researcher interest in accessing historical FRD information, much of this information remains needlessly classified.  Weapons systems are decommissioned, as are the military units who maintained them.  War plans become obsolete and are changed to account for advances in weaponry and technology as well as altered to account for changes to current national security policy.  Stockpile and storage locations change over time, and nuclear weapons information is disclosed to other nations as treaties are negotiated and signed.  Despite its operational obsolescence, this historical information remains classified as FRD and is needlessly safeguarded in the same manner as our current active nuclear policies and plans.  As a result, there are large gaps in the public’s understanding of the role of nuclear weapons in our national security history.  Significant Cold War events, like the Cuban Missile Crisis, have yet to be fully detailed as most records marked FRD remain locked in classified vaults.

The Problem

For historians, national security policy scholars, and the public, access to this information is integral to understanding our national security history.  Yet, a regular, systematic process to review FRD for declassification and public access does not exist.  FRD has been declassified in a few isolated instances, but these decisions were usually ad hoc and inconsistent.

The public has no formal means of requesting the declassification review of FRD information.  Unlike other categories of classified information, information marked as FRD is automatically excluded from all reviews for declassification under the Order, including 25-year automatic declassification reviews and Mandatory Declassification Review requests.  Agencies are required to process and review records containing FRD under the Freedom of Information Act (FOIA), but the FRD information itself is pro forma exempted and not reviewed on its merits.  On those rare occasions when DoD and DOE choose to consider specific FRD information for declassification, there is no mechanism to appeal an exemption/denial decision.

Recommendations

The Public Interest Declassification Board (the Board) recommends that the classification designation FRD be eliminated on all historical records that are 25 years old or older.  These records should be reviewed for declassification in the same manner as all other classified national security information.  Historical FRD information – stockpile numbers, storage locations, military planning information, basic testing and yield information, and non-technical nuclear information as it relates to the military utilization of nuclear weapons – would formally become classified national security information and reviewed for declassification according to the Order.  Agencies could seek exemptions from the automatic declassification provisions of the Order from the Interagency Security Classification Appeals Panel (ISCAP) and exempt this information accordingly.  DOE could participate in ISCAP deliberations as a temporary representative when FRD information is discussed.[1]

Historical FRD information that describes technical design information relating to the military utilization of nuclear weapons would be converted to the RD classification, in effect correcting erroneous FRD markings of the past.   As part of this transition, DoD and DOE would need to create a declassification guide to provide clear and precise instructions on what should properly be classified as RD and what should be classified by the Order as national security information and what should be declassified.  To ensure proper treatment of FRD, this guidance would be disseminated to all agencies that hold historical FRD information in their records.


[1] This is identical to an existing procedure used to provide representation for the CIA when their equities are being adjudicated by ISCAP.

 

Two New Papers

by on April 12, 2011


The PIDB would like to invite you to post your comments on two new proposals for transforming the classification system. The new topics concern:

Paper 5: Stewardship of Our Classified History
Paper 6: Information Security and Access in the Electronic Environment

A forthcoming paper will address historical Formerly Restricted Data.

Additionally, be sure to mark your calendar for Thursday, May 26, 2011, when the Board will host a public meeting on these and prior topics.



The Problem

The current records management system does not ensure those records of historical significance are identified in such a way as to promote their timely review for declassification and public release.  With greater reliance on digital records to decide policies and conduct missions, there is a great danger that, unless changes are made, our nation will be unable to document these historical decisions for future generations.

Proposals

Stewardship of our national security history requires a two-tiered approach: capturing historically significant records at their creation and prioritizing their review for declassification.  Each agency leader should establish an agency-wide history program.  These programs should instill a greater sense of history in records management by fully integrating agency historians with records managers.

Mission-essential employees should collaborate with agency historians to further define the events and activities of historical significance. Using a continuum approach to information management, records managers and archivists should partner with mission-essential employees and historians to identify file series that detail historically significant events and activities.  This process should maintain the provenance and original order of the records to guarantee users and future researchers contextual accuracy.  When the records in question are electronic, information technology staff should ensure that the records’ metadata reflect their significance so as to ease future retrieval efforts.  The stewardship of national security history demands a strong focus on electronic records management, as future historians will rely increasingly on information to be managed appropriately in the digital environment.

Historians should use these records to compose both classified and unclassified histories.  The Center for the Study of Intelligence at the Central Intelligence Agency could serve as a model for this approach and act as a facilitator for the history programs of the Intelligence Community.  Although individual military units have historians and conduct “lessons learned” exercises and draft after action reports, the Board believes it essential for the Department of Defense to also adopt this integral approach to agency history programs.  The historically significant records used to compose these histories should be prioritized for declassification review as these records would be of greatest interest to the public and are most likely to be subject to Freedom of Information Act or Mandatory Declassification Review requests.  These early releases will increase public access while reducing the volume of potential requests.  Communication between agency historians, records managers, archivists, and declassification reviewers is essential to fostering this holistic approach to records management, which the electronic environment and the information age necessitate.

Benefits

Improved stewardship of the national security history of our Government would significantly enhance both Government operations and public access and knowledge.  Timely access to the documentary record benefits policymakers who can reflect on past agency decisions when developing new policies.  Effective records management practices will strengthen their ability to readily retrieve agency history and prevent the loss of historically significant records.  Changes to contemporary information management practices would ensure that records of greatest historical significance are automatically identified at their creation, made accessible to users through metadata and enhanced records management, and prioritized for timely declassification review and public release.

Effective records management programs are essential, both to the information retrieval capability of policymakers and to the stewardship of agency history.  The resources agency leaders invest in joint history and records management programs can earn real-time payoffs.  Just as after-action reports improve future military operations, authored histories can provide immediate assistance by lending historical context to contemporary policymaking. Policymakers should use these histories of prior decisions and lessons learned to inform contemporary policy initiatives and train new staff.  The impact of these studies depends largely on the timeliness and comprehensiveness of the historical record available.  Agencies should recognize that history and records management are vital to their missions.  Agency histories will remind agency personnel of the historical significance of their work, and unclassified versions will increase transparency by providing the public a view into agencies’ contemporary actions

By adopting a comprehensive records management program, agencies will be better positioned to address the challenges of the e-records environment and provide the public with the most sought-after materials. With the massive growth in electronic records, future historians are likely to be buried in data as they attempt to find important records.  Employing a continuum model with accompanying metadata tagging will preposition records for easier retrieval by agencies and the public.  Moreover, prioritizing historically significant records at the onset will reduce the eventual request burden on researchers, the NDC, and agency declassification offices.  Most importantly, improved records management will enable agencies to automatically declassify records without review, as was the original intent of the automatic declassification program.



Background

Individuals generating or working with classified information are required to obey established procedures for accessing, annotating, handling, and safeguarding that information.  The system is managed much as it was before the advent of digital communication.  Protocols governing these transactions were developed at the beginning of the Cold War and reflect the paper-based world in which they were created.

The electronic environment has radically changed how classified information is created and transmitted.  Secure networks make it possible to exchange information readily between agencies.  Innovations have revolutionized information sharing among agencies, but these advances have also made the system more susceptible to unauthorized disclosures, as the Wikileaks incidents have demonstrated.

While technology has transformed the way classified information is generated and transmitted, the classification system itself largely operates as it always has.  Many of the policies currently in place for managing classified information represent 20th century approaches to 21st century problems.  For example, current policy requires visible classification markings on records created digitally or made available online but makes no provision for the standardized electronic tagging of this information.

In this digital age, classification and access provisions must be as understandable by a computer system as they are by a human.  Yet, today’s methods for managing and monitoring access to classified materials do not acknowledge this reality.  Clearances remain agency-centric, burdensome to renew, and cumbersome to transfer between agencies.  Conversely, an individual’s access to a classified network is based on ill-defined determinations of “need-to-know” and granted on a mostly system-wide basis.  For both clearance and access, the antiquated design does not reflect an individual user’s needs and purposes.  Accessibility is complex when it needs to be simple and simple when it needs to be complex.  In recent years, the evolution of the Government’s internal business practices has exacerbated these issues and highlighted the need for reform.

Changing the System

Advances in the electronic environment have increased demands on the classification system, and new technology also offers the means to improve the methods by which classified information is managed.  Coupled with reforms to the clearance process, adopting new methods for curating digital information records could significantly improve classification management.

As we have previously detailed, metadata can describe and label electronic records so that they are easier to retrieve, analyze, manage, and process.  The benefits of comprehensive metadata standards are not limited to records management, but also offer the opportunity to enhance information security by providing sophisticated means to tailor and audit access.

Metadata for information stored on classified networks can limit access only for those with appropriate credentials. Credentials can be changed to include or exclude individuals as policies and sensitivities change.  This approach can ensure all authorized users access to basic categories of information while compartmenting access to more sensitive items, not requiring an entirely separate network for highly sensitive information.  For new records derived from multiple sources, the classification and disclosure policies of the source information can transfer to the new record through underlying metadata and prevent unauthorized access.  The automated imprinting of e-records with background information in their metadata would act as a digital bibliography or provenance to aid eventual declassification review.

Metadata can also be used to monitor and audit activity on classified networks.  Records can be imprinted with transactional metadata showing their access history.  By tracking patterns of use, security managers will be able to use metadata to identify insider threats, in the same way the credit card industry detects fraud.   Capturing a record’s modification history will aid future researchers, who will be able to see how national security policymakers used the information in their analyses and deliberations.

The adoption of this credential-oriented approach would eliminate some of the shortcomings of the existing clearance process.  Under this new system, when individuals receive their initial security clearances, they would be assigned unique, permanent identifiers, akin to Social Security numbers.  These identifiers would be granted and maintained by a single government entity.  Once a cleared individual begins work, her identifiers would be assigned access credentials based on her specific responsibilities and work environment.  When a user accesses or modifies classified records, his identifiers would be automatically appended to that record’s metadata.  Clearance identifiers would follow an individual’s transfers to another office or agency, receipt of new government contracts, or transition back into federal service after working elsewhere, and agencies would grant them new accesses as appropriate.  By eliminating the need for entirely new security investigations at every juncture, this process would save resources, increase efficiency, centralize the clearance process, and improve national security.

Implementing These and Other Changes

Various questions regarding these and other changes to the classification system would need to be addressed:

  • Would proposed changes to the system be improved if accompanied by changes to the number of classification levels?
  • Would proposed changes to the system be improved if definitions of secrecy and risk were redefined?  If so, what should those new definitions be?
  • What entity or entities would manage a streamlined classified network?  A unified clearance system?
  • How should oversight of the classification system change to match the realities of the electronic environment?
  • Should a metadata registry be maintained? How might its requirements be enforced and by whom?
  • Should classification decisions be monitored and audited for compliance and consistency at the onset by an enforcement entity?

Three New Papers

by on March 29, 2011


The PIDB looks forward to hearing your comments on the following new papers:

Paper 3:  Regularizing the Declassification Review of Classified Congressional Records

  • Systematize and prioritize the declassification review of Legislative records at the NDC

Paper 4:  Discretionary Declassification and Release of Contemporary National Security Information

  • Encourage policymakers to consider the advantages of not classifying certain categories of information or declassifying before prescribed deadlines

Paper 5:  Simplifying the Declassification Review Process for Historical Records

  • Transfer agency declassification authority to the National Declassification Center (NDC) after declassification exemption timelines have lapsed


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.



The Problem

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. [1]

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.

Benefits

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.


[1] 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.

 

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