Secrecy News

Mandating Declassification in Congress

Last week a bill was introduced in the Senate “to require the Secretary of Defense to declassify certain documents related to incidents in which members of the Armed Forces were exposed to toxic substances.”

The bill (S. 726), introduced by Sen. Jerry Moran (R-KS) and Sen. Jon Tester (D-MT), generally requires declassification of all “documents related to any known incident in which not fewer than 100 members of the Armed Forces were exposed to a toxic substance that resulted in at least one case of a disability that a member of the medical profession has determined to be associated with that toxic substance.”

The bill is the latest example of congressional action to initiate, prioritize or override executive branch policy on declassification of national security records.

The new bill grants an exception from the declassification requirement “if the Secretary [of Defense] determines that declassification of those documents would materially and immediately threaten the security of the United States.” This is a notably narrower exemption than that provided by the Freedom of Information Act, which deems records properly classified and therefore exempt if their disclosure would simply cause “damage” to national security.

The bill would not provide any new funding for declassification. So it would presumably be implemented at the expense of current declassification programs.

The Moran-Tester bill may or may not advance through the legislative process. But numerous other congressional declassification initiatives have been enacted into law over the years.

In a report last week, for example, the Senate Intelligence Committee recalled that it had successfully legislated “a requirement that the DNI complete a declassification review of information on the past terrorist activities of detainees transferred or released from Guantanamo, [and] make resulting declassified information publicly available.”  See SSCI Report on activities during the 114th Congress, S.Rpt. 115-13, March 29.