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Secrecy and Government Bulletin

Issue Number 44
February 1995

New Draft Executive Order Circulated

The latest draft of a new executive order on classification of national security information, which includes provisions that would dramatically enhance the declassification of older classified documents, was circulated to executive branch agencies on January 12.

White House officials said it represented "the last stage of the process" which began in April 1993 to prepare a new, post-cold war classification system. Agencies were given until January 26 to submit comments, with formal Presidential approval expected "several weeks thereafter."

The draft has a distinctly patchwork quality, representing varying degrees of compromise on numerous points of conflict large and small. In a number of critical areas, particularly declassification, some of the views articulated by public interest groups were adopted. In other important areas, agency interests and the status quo were triumphant.

"No one is completely happy with this," a White House official said, "and neither will you be. But this is where we are now and we intend to move this to completion as soon as possible."

Automatic Declassification Emphasized

The most important feature of the current draft is the provision that within five years and with reasonably narrow exceptions, all information in records that are more than 25 years old "shall be automatically declassified whether or not the records have been reviewed." This provision should lead to the release of hundreds of millions of pages of Cold War records.

The five year transition period is provided to allow agencies an opportunity to search for the odd document that might still be sensitive after 25 years. However, to make sure that this transition period is not abused or ignored, the draft also requires that agencies "declassify at least 15 percent of the records affected by this section no later than one year from the effective date of this Order, and similar commitments for subsequent years...." This important provision, which was specifically advocated by public interest groups in 1994, provides a near-term milestone for measuring the success of the new Order and is a sign of good faith to boot.

The draft provisions for classification of new documents are less innovative. The categories of information that are eligible for classification are essentially the same as ever, acknowledged Steven Garfinkel, director of the Information Security Oversight Office (ISOO) and a principal author of the draft. "Starting on day one [of the new system], the opportunity to classify information will be similar," he said January 19. "It is the changes down the road [leading to automatic declassification] that will be dramatically different."

The draft encourages classifiers of new documents to assign a date for automatic declassification within ten years, but they also have plenty of leeway to evade the ten year maximum. "I hope that this provision results in a great deal of information being marked for ten year declassification," Mr. Garfinkel said. "But I don~t want to tell you that this particular solution is perfect. None of the solutions that have been proposed have worked terribly well. This provision is an attempt to make it work better."

In a retreat from earlier drafts, the new draft all but nullifies the "balancing test" which required the public interest in disclosure to be weighed against any national security interest in secrecy. The new draft emphasizes that any such balancing is solely an act of discretion by agency officials and is not subject to judicial review. This change was made at the insistence of senior Justice Department officials who wanted to discourage FOIA litigation over whether the balancing had been properly performed.

The draft has numerous other interesting and potentially important features including requirements for classification cost accounting, creation of a government-wide database of declassified documents, establishment of an interagency panel to hear classification challenges, and more.

Overall, the January 12 draft represents a significant improvement over current practice and provides a foundation for more far-reaching reforms in the future. A copy of the 54 page draft is available from S&GB for $3 to cover postage and copying.

This Ain't No Opera

Asked whether he would bet a thousand dollars that the new executive order will be signed within ninety days, Mr. Garfinkel said no. "I learned my lesson when I lost my five dollars at the turn of the year [betting that it would be signed by then]. But obviously, our intent is that this thing not drag on a lot longer."

"I was driving in this morning," Garfinkel said, "and I was listening to a tape of La Traviata. While I was listening to it, I recalled that Verdi wrote three of the greatest operas in the history of the world between the years of 1851 and 1853. In that same amount of time, we have written this thing. Apparently, Verdi did not have to deal with as much of a bureaucracy as we have."

But perhaps all of the time and energy that have been invested in the classification reform process can still be redeemed if the new order is promptly signed and rigorously implemented. With all of its limitations and despite its essentially conservative character, it could at least become "the greatest executive order on classification in the history of the world" (a modest enough ambition) and the beginning of a more thoroughgoing reform process.

The Role of Leaks

One of the lessons of the whole ordeal of drafting a new executive order on classification concerns the value of leaks, i.e. unauthorized disclosures of classified or otherwise controlled information, in a tightly restricted information environment.

Over the two year reform process, every major draft of the new order was provided to S&GB for disclosure to the public without authorization. Those disclosures seemed to have a profound effect on the conduct and outcome of the process, allowing for an unprecedented degree of public participation in the decisionmaking process. Although the drafts were never formally released for public comment, "We got lots and lots of comments," said Mr. Garfinkel.

In particular, public criticism of the leaked drafts led directly to a major reduction in the proposed maximum duration of classification from 40 years to 25 years. Without this and other constructive changes, the new order would have been scarcely worth the bother.

The leakers themselves, who had nothing in particular to gain and perhaps a good deal to lose, performed a real public service.

As the scope of the secrecy system has expanded far beyond the legitimate needs of national security, leaks have become the most effective remedy to excessive government secrecy. Surreptitious disclosures of improperly or unnecessarily classified information have become an increasingly important and fruitful source of public information. Recognizing the growing importance of leaks to the public, the CIA recently warned its employees that they will be questioned during polygraph testing about contacts with uncleared citizens and unauthorized disclosures to the media (Washington Post, 1/24/95, A15). One can only hope that the Agency's top counterintelligence specialists will be assigned to the matter.

Counterrevolution?

In a new sign of potential disarray, the staff of the interagency Security Policy Board (SPB) has launched an offensive against the latest draft of the executive order and has challenged the authority of the Information Security Oversight Office (ISOO).

Peter Saderholm, the reclusive SPB staff director, alleged in a January 9 memo obtained by S&GB that "the draft E.O. does not enjoy wide support within the Federal community" and that it should be revised. "The solution is to establish the Security Policy Board as the policy issuance authority for classification management" instead of ISOO, Mr. Saderholm wrote.

The SPB staff memo was dismissed by a National Security Council staff member. (Both ISOO and the SPB report to the NSC.) "The people who are on that Board-- Mr. Deutch, formerly Mr. Woolsey, and people a tier down, Mr. [Keith] Hall and Mr.[Rich] Haver-- I don't think they have any intention of re-doing this order. That memo came from a lower level, quite frankly, and as you probably appreciate, there are some bureaucratic turf battles, who gets to control what and so on."

This is a turf battle, however, that could have serious policy consequences. If the SPB staff manages to seize control of classification policy from ISOO, declassification initiatives will suffer because, judging from the Joint Security Commission report (which set the Board's tentative agenda) and related SPB documents, the new Board does not recognize any obligation to declassify the existing backlog of old records and opposes bulk declassification in particular.

Moynihan Commission on Secrecy Meets

"This government is shot through with willy-nilly applications of secrecy," complained Sen. Jesse Helms at the first meeting of the Commission on Protecting and Reducing Government Secrecy on January 10.

The new Commission, conceived by Senator Daniel P. Moynihan several years ago, was officially created by the Foreign Relations Authorization Act for FY 1994 and 1995. The bipartisan Commission, which includes members from both houses of Congress, the executive branch, and the private sector, has two specified functions: to investigate "all matters" related to classification and personnel security and then, in two years, to submit a report to Congress with recommendations for reform.

Following Senator Helms' nomination of Senator Moynihan to become Commission Chairman, which was unanimously approved, the first meeting was mainly devoted to members' introductory statements. Most of the members displayed an unexpected eagerness to condemn current government secrecy policy.

Senator Helms noted that "I've been fussing for years about the application of secrecy on just about every document in this town." And indicating the POW/MIA bracelet he still wears, he said "I think that the most distressing instance of secrecy, of unnecessary secrecy, originated in the Pentagon with reference to what happened to our missing men."

Deputy Defense Secretary John Deutch, who presides over a vast secret military budget, also expressed concern about unnecessary secrecy. He confessed that he has "great sympathy in my own personal views" with the 1970 Defense Science Board report on secrecy that called for a 90% reduction in the amount of classified information, and complete declassification of information after one to five years. The 1970 report, like other reformist tracts before and since, proved to be utterly inconsequential for actual government secrecy policy.

"I totally concur that secrecy has become burdensome," said Rep. Larry Combest (R-TX), chairman of the House Intelligence Committee and the leading Congressional opponent of declassifying the size of the intelligence budget.

Martin Faga, the former director of the National Reconnaissance Office, remarked that "I'm proud to say that during my term [as NRO director] I had the existence of the Office declassified." "But not the building," interjected Senator Moynihan. "Not the building," Faga acknowledged. He further noted that "Everybody agrees on the philosophy of no unnecessary classification. The problem is to define what that means in operational terms."

The Commission is composed of twelve members representing a range of views from the extreme middle to the far right. In addition to Senator Moynihan, Senator Helms, Rep. Combest, Secretary Deutch, and Mr. Faga, the other members are Rep. Lee Hamilton (D-IN); White House Staff Secretary John Podesta; Prof. Samuel ("clash of civilizations") Huntington; former ambassador Richard Fox; former Wall Street Journal reporter Ellen Hume; former NSC staffer Alison Fortier, now of Rockwell International; and businessman Maurice Sonnenberg.

The Commission has a budget of $1.3 million plus free accommodations courtesy of the State Department. According to Senator Moynihan, "We're in no hurry. We have two years. We've got plenty of money. We might just do something."

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Back issues of S&GB are available at the Web site of the new Intelligence Watch Report (IWR), which "tracks and studies intelligence agencies from around the world." The URL is http://www.awpi.com/IntelWeb/index.html A fact sheet on IWR is available on request from [email protected] or fax (617)266-7680.


Secrecy and Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists, 307 Massachusetts Avenue N.E., Washington, DC 20002. For more information call (202)675-1012 or send email to [email protected]


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