Fundamental Classification Review Yields Uncertain Results

The executive branch has just completed a two-year review of its classification guidance that was ordered by President Obama as a way to combat overclassification of government information.  The Review was intended “to ensure the guidance reflects current circumstances and to identify classified information that no longer requires protection and can be declassified” (as per section 1.9 of executive order 13526).

The early results of the Fundamental Classification Guidance Review, which formally concluded on June 27, make it clear that something out of the ordinary occurred and that some changes have been made, but the significance of those changes remains uncertain.

The single most dramatic outcome of the Review is that the Department of Defense, which is the largest classifying agency, eliminated more than 400 of its 2000 classification guides.  Each guide is a compilation of detailed classification instructions for an individual program or topical area.  Those cancelled guides can no longer be used to authorize the classification of information.

“Approximately 20% of DoD’s non-compartmented SCGs [security classification guides] have either been eliminated or identified for retirement,” the Pentagon said in its final report on the Fundamental Review.

The Air Force eliminated 44 guides (out of 306 extant), the Army eliminated 72 guides (out of 417), and the Navy eliminated 248 guides (out of 988), the DoD report showed.

Unfortunately, the practical effect of these startling reductions is hard to assess, and it may well be less substantial than the impressive numbers would suggest.  To the extent that the cancelled guides pertain to programs that have been terminated, their elimination will have no effect whatsoever.  Likewise, to the extent that their contents may have been incorporated into or are duplicative of other guides which have not been cancelled, the result is a wash.

In some cases, it is certain that no declassification resulted from the process.  Thus, the Joint Staff, DARPA, and DTRA all state explicitly that none of their information was declassified as a result of the Fundamental Review, since it was all deemed to be properly classified.

In other cases, however, some declassification is known to have occurred due to the Review.  The National Reconnaissance Office, for example, downgraded several categories of classified NRO information and declassified two of them:  “the identification of a contractor as an NRO satellite vehicle contractor” and “the ‘fact of’ real-time command and control telemetry.”

Even such narrow modifications can produce measurable changes in disclosure policy.  In 2008, the “fact of” NRO radar satellite reconnaissance was declassified, which led to the release this week of an extensive body of NRO material about the QUILL synthetic aperture radar satellite, which flew in 1964.

But the general lack of clarity concerning the results of the Fundamental Review is something of a disappointment.  Moreover, it is not consistent with the guidance that was provided to agencies last January by the Director of the Information Security Oversight Office (ISOO), John P. Fitzpatrick.

“To the greatest extent possible,” Mr. Fitzpatrick wrote then, the final reports of the Fundamental Review “should be informative as to how much information that was classified is no longer classified as a result of the review.  The report should also provide the best estimate of how much information that would normally have been classified in the future will now not become classified.”

The DoD Report, at least, did not fulfill that instruction.

Mr. Fitzpatrick said yesterday that he was still reviewing the reports of the Fundamental Review, which will all be posted on the ISOO website, and that he would discuss them at a later date.

Even in agencies where declassification did not take place, the improved quality of the classification guidance that resulted from the Review appears to have had a salutary effect on the classification system.

According to the latest ISOO Annual Report to the President, the number of original classification decisions — or newly generated secrets — actually decreased by a sizable 43% from 2010 to 2011.  The number of original classifications last year was lower than it has been since 1996.

“The primary reason for this is a greater utilization of classification guides and greater adherence to executive order guidance on the incorporation of original decisions into classification guides,” the ISOO report said.