Is the Secrecy System an Autonomous Entity?

Does the secrecy system function according to its own autonomous principles?  Is it beyond the rule of law and outside of presidential control?

Not exactly.  If that were true, then there would never be involuntary changes to classification policy and there would be no compulsory declassification of classified information.  Fortunately, that is not consistently the case.

And yet there is a disturbing pattern of evidence to show that the secrecy system resists external control, and that it will not reliably fulfill even the most explicit presidential commands or the clearest requirements of law.  For example:

*    On December 29, 2009 President Obama ordered all agencies that classify information to issue final implementing regulations for his new executive order on classification policy by the end of December 2010.  The Department of Defense, the largest classifying agency, did not comply.  It did not request a waiver or an extension, it simply did not comply.  As a result, the most important classification reforms advanced by the President have not taken hold at the Department of Defense.  (“Secrecy Reform Stymied by the Pentagon,” Secrecy News, February 24, 2011).

*    Presidents Clinton, Bush and Obama each ordered that all 25 year old classified records, unless they were specifically exempted, “shall be automatically declassified whether or not the records have been reviewed.”  But agencies have refused to implement this provision or to permit automatic declassification without review, thereby crippling the presidential initiative for streamlining the declassification process.  (Under the 1999 Kyl-Lott Amendment, Congress also complicated this provision by prohibiting public release of declassified records without a separate review for nuclear weapons-related information.)

*    The Secretary of State is in standing violation of the Foreign Relations Act of 1991, which requires her to ensure the publication of a “thorough, accurate, and reliable” documentary record of U.S. foreign policy “not more than 30 years after the events recorded.”  But that is not happening.  And things are getting worse, not better.  As a result of the non-compliance by several agencies with timely declassification requirements, there “appears to be a growing distance between the statutory obligation to reach a 30-year line… and the actual length of time it has been taking to compile, review, revise, declassify, and publish those volumes,” according to the most recent report to the Secretary (pdf) from the State Department Historical Advisory Committee.

The failure of law and policy to gain purchase on classification practice is alarming on several levels.  Among other things, it means that would-be reformers cannot be satisfied with the “mere” passage of a new law or the adoption of a new executive order, since the practical effect of these steps may turn out to be illusory.  And it casts a different, more positive light on the role of unauthorized disclosures, which in some cases can compensate for the inability or refusal of government agencies to implement binding declassification and disclosure requirements.