Secrecy News

SSCI Bill Adopts Fundamental Classification Review

The Fundamental Classification Guidance Review (FCGR) that was launched by President Obama’s 2009 executive order 13526 would be written into statute by the Senate Select Committee on Intelligence in its version of the FY intelligence authorization act (S. 3017), released this week.

The FCGR has become the primary mechanism for systematically updating agency classification rules and deleting obsolete secrecy requirements. Performed every five years, it entails the review of thousands of individual classification guides. After the first FCGR in 2012, hundreds of such guides were eliminated.

“A reasonable outcome of the review overall, though not necessarily in the case of each program or guide, is to expect a reduction in classification activity across government,” wrote William Cira, acting director of the Information Security Oversight Office, in a March 17 memo to agencies initiating the second FCGR, which is to conclude by June 2017.

The FCGR can advance “our shared goals for greater openness and reduced classification activity while protecting legitimate national security interests,” wrote DNI James Clapper in a March 23 addendum, embracing the FCGR and adding some new requirements to it.

The Senate bill (section 809) does not modify the existing FCGR process, but would enshrine it in statute.

The new bill includes several other reporting requirements that appear uncommonly assertive, if not intrusive. For example, the Committee would expect the Privacy and Civil Liberties Oversight Board to keep it informed of all the Board’s activities, “including any significant anticipated activities.” The Committee would require submission of copies of all memoranda of understanding between U.S. intelligence agencies. And the Committee would require notification of all classified and unclassified presidential directives to intelligence agencies, and their implementation.

In short, the bill would reset the terms of the congressional intelligence oversight relationship, seemingly dispensing with comity and imposing mandatory disclosure to Congress of various categories of records. Executive branch resistance may be anticipated.

For the first time in living memory, the SSCI bill was reported out of Committee on June 6 without a written report to publicly explain and expand upon its provisions. (Update: The Committee report on the bill was published on June 15.) It did, however, include a classified annex.