FAS Note: For related background on this proposed new exemption to the Freedom of Information Act, see here.
April 18, 2000
Senator John Warner, Chairman
Senate Armed Services Committee
SR-228 Russell Senate Office Building
Washington, DC 20510-6050
RE: Defense Authorization Act for FY 2001Proposed Section 903Dear Chairman Warner:
We are writing to urge your Committee to reject the Defense Department's proposed Section 903 to the FY 2001 Defense Authorization Act, entitled "Authority to Withhold from Public Disclosure Certain Sensitive Information."
The problem that this section addresses — the need to protect foreign information that has been provided to the U.S. Government in confidence — has already been fixed.
DOD expresses concern that because unclassified foreign information that was provided in confidence must be classified to protect it in the U.S., this results in "increased security requirements imposed by the United States" which entail "unnecessary costs." Similarly, some of our allies have a fourth classification level called "Restricted" which DOD says cannot be protected in the U.S. without upgrading its classification to "Confidential," our lowest classification level, which again would entail increased costs due to additional security requirements.
These concerns are obsolete, and based on outdated information.
Executive Order 12958 (60 Fed. Reg. 19825) already provides the full degree of flexibility needed to efficiently protect foreign government information that has been provided in confidence, without increased security requirements. The Order requires only that foreign government information be provided "a degree of protection at least equivalent to that required by the entity that furnished the information." (Sec. 1.7e)
The Implementing Directive for this Order that was issued by the Information Security Oversight Office and the U.S. Security Policy Board is explicit: Equivalency is all that is required, even if it provides less protection than that otherwise afforded by US classification policy. Thus:
"When adequate to achieve equivalency, these [safeguards] may be less restrictive than the safeguarding standards that ordinarily apply to US CONFIDENTIAL information." (32 C.F.R. Part 2004, Appendix B, no. 4)The effective date of this Directive was October 25, 1999. Because it is so recent, DOD may not have been fully cognizant of its provisions when submitting the present proposal to Congress. But the fact is, the proposal is moot. No security upgrade is required to protect foreign information that has been provided in confidence. No additional costs are entailed. Equivalency of protection is sufficient. There is no remaining basis for the DOD proposal.
If Congress were to adopt the DOD proposal for a new exemption from the Freedom of Information Act despite the changed circumstances which render it moot, this could have at least two undesirable consequences:
First, it would tend to erode the FOIA. There are a number of significant international cooperative programs underway, conducted on an unclassified basis, which should be exposed to the light of day, including the requirements of the FOIA. No blanket exemption is warranted. The executive branch's proclivity for new FOIA exemptions threatens the FOIA with the death of a thousand cuts.
Second,the new proposal would obscure the bright line between classified and unclassified information, a step that would represent poor security policy. It would create, in effect, an additional classification level. Many security experts, like those represented on the 1994 Joint Security Commission, believe we need fewer classification levels, not more.
For all of these reasons, we hope you will reject the DOD proposal as untimely, unnecessary, and unwise.
Senior Research Analyst
Federation of American Scientists
Mary Alice Baish
Associate Washington Affairs Representative
American Association of Law Libraries
Reporters Committee for Freedom of the Press
Joseph T. Francke
California First Amendment Coalition
Editor, "The Swords of Armageddon"
Government Accountability Project
Fund for Constitutional Government
Los Alamos Study Group
Senior Policy Analyst
Christopher E. Paine
Natural Resources Defense Council
Electronic Privacy Information Center
Center for Democracy and Technology
Executive Director, Washington Office
American Library Association
Professor Robert N. Strassfeld
Case Western Reserve University School of Law
Mark S. Zaid, Esq.
The James Madison Project