SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 56
June 29, 2009

Secrecy News Blog: http://www.fas.org/blog/secrecy/

REDUCING GOVERNMENT SECRECY: FINDING WHAT WORKS

Although people have been complaining about abuse of the national security classification system for decades, such complaints have rarely been translated into real policy changes.

More than half a century ago, a Defense Department advisory committee warned that "Overclassification has reached serious proportions." But despite innumerable attempts at corrective action over the years by official commissions, legislators, public interest groups and others, similar or identical complaints echo today. What is even more interesting and instructive, however, is that a few of those attempts did not fail. Instead, they led to specific, identifiable reductions in official secrecy, at least on a limited scale.

For example, the Interagency Security Classification Appeals Panel (ISCAP) that was created in 1995 has consistently overturned the classification of information in the majority of documents presented for its review. And the Fundamental Classification Policy Review that was performed by the Department of Energy in 1995 eliminated dozens of obsolete classification categories following a detailed review of agency classification guides. These and just a few other exceptional efforts demonstrate that even deeply entrenched secrecy practices can be overcome under certain conditions.

In an effort to identify some of those conditions, I wrote a paper entitled "Reducing Government Secrecy: Finding What Works." It has just been published in the Yale Law and Policy Review, volume 27, no. 2, Spring 2009, and is available here:

Among other things, the experience of the ISCAP underscores the importance of extending declassification authority beyond the agency that imposed the classification in the first place. It would be useless to restore "the presumption against classification" in cases of "significant doubt," as President Obama suggested on May 29, if that presumption applied only when such doubt arose in the mind of the classifier. But if classification were to be overruled by doubt in the minds of other persons -- ISOO overseers, Inspector General auditors, judges in FOIA proceedings, and others -- significant changes would be enabled.

However, systemic classification reform simply will not happen without careful independent review of agency classification guides, which specify exactly what information is to be classified. The DoE Fundamental Classification Policy Review proves that such a review, including public participation and input, is both possible and highly effective. It needs to be replicated at other classifying agencies.

The White House has announced an online process for receiving public comments and recommendations for changes to classification and declassification policies. Discussion of declassification policy begins today here:


HOUSE REPORT ON INTELLIGENCE AUTHORIZATION 2010

The House Intelligence Committee last week filed its report on the FY 2010 intelligence authorization act, including many interesting and potentially important intelligence policy provisions.

Perhaps the most significant measure is the proposed creation of a statutory inspector general for the intelligence community. Other steps include a requirement to report on the number of Federal Government employees who hold security clearances (remarkably, a number that is not readily available today, even within the government); cautious endorsement of a limited role for the Government Accountability Office in intelligence oversight (a move favored by FAS); expanded review and notification requirements concerning covert action; a proposed study on the possibility of revoking the pensions of persons who commit unauthorized disclosures of classified information; and quite a bit more.

See "Intelligence Authorization Act for Fiscal Year 2010," House Permanent Select Committee on Intelligence, H.Rept. 111-186, June 26, 2009:


OTHER RESOURCES

Bill Leonard, the esteemed former director of the Information Security Oversight Office and the principal overseer of the government secrecy system, now has his own blog where readers may look for his views and his insights on secrecy policy as the process of classification reform gets underway in earnest.

The House Judiciary Committee rebuffed a Republican proposal for a "resolution of inquiry" to require the Administration to produce documents concerning the use of Miranda warnings given to detainees captured in Afghanistan. The Committee's adverse report, dated June 26, is available here:

The Defense Department has issued a newly updated policy statement on reporting "questionable" intelligence activities. "It is DoD policy that senior leaders and policymakers within the Government be made aware of events that may erode the public trust in the conduct of DoD intelligence operations," the June 17, 2009 memorandum states.

Some such questionable activities are to be reported to the Intelligence Oversight Board, a component of the President's Intelligence Advisory Board. However, the efficacy of any such reporting is limited by the fact that that Board currently has no sitting members. ("White House Intel Advisory Board Has No Members," Secrecy News, June 15, 2009).

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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