Defense Bill Requires Declassification of Toxic Releases

In an unusual assertion of congressional authority over national security classification policy, the Senate adopted a provision that would require the Secretary of Defense to declassify certain classified documents regarding military exposures to toxic releases.

The provision was authored by Senator Jerry Moran (R-Kan.) and was included in the Senate version of the National Defense Authorization Act for FY 18 (HR 2810, sect. 1089), which was passed in the Senate on September 18.

The measure directs that “The Secretary of Defense shall declassify 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.”

Though limited in scope and application, the provision is noteworthy because it does not simply declare a “sense of Congress” in favor of declassification or call for a “review” of classified records. It actually requires declassification to be performed.

The Moran legislation, co-sponsored by Sen. Jon Tester (D-Mont.), does allow for the possibility of exemption of some material from declassification, but only if it would “materially and immediately threaten the security of the United States.”

That is a far more stringent standard than is provided by the executive order on classification, which vaguely permits withholding of information whenever it “could be expected to cause damage to the national security.”

In effect, the Senate bill overrides the executive order with respect to the specified documents on toxic exposures by mandating declassification with new, narrower criteria for withholding.

This is not the first time that Congress has enacted such a legislative override of classification policy. It did so, most notably, in the JFK Assassination Records Collection Act of 1992. Some other attempts to legislate a new standard for declassification were initiated but did not advance into law, as in the case of the Human Rights Information Act.

Though rare, successful legislative action of this kind demonstrates that Congress can be an effective participant in determining the scope and performance of the classification system. More than that, Congress has the power to help to correct errors and abuses in classification policy.

This is one of those cases where congressional intervention was necessary, according to Sen. Moran.

“Without declassification of these documents, many of our veterans are left without proof of the exposure they suffered, preventing them from being able to establish their service-connected conditions and secure a disability rating that makes them eligible to receive the care and benefits they deserve to help them cope with the residual health damage,” his office said in a news release.