A Self-Correcting Classification System?

By April 20, 2021

Those persons who have authorized access to classified information that they believe is improperly classified are “encouraged and expected” to challenge the classification of that information (Executive Order 13526, section 1.8).

Sometimes they do. And every once in a while, their challenges lead to declassification of the information.

A new report from the Government Accountability Office notes one recent example of a “classification challenge about military personnel overseas.” In that case, “as a result of the formal classification challenge, the Office of the Under Secretary of Defense for Policy ultimately decided to declassify the information.” See National Security: DOD and State Have Processes for Formal and Informal Challenges to the Classification of Information, GAO-21-294, April 16, 2021.

The procedures for identifying and challenging over-classification have the potential to multiply existing oversight of the classification system many times over. Instead of just a bare handful of overseers at the Information Security Oversight Office and a few other places, all of the more than four million cleared personnel in government and industry could be mobilized to help evaluate the classified information that they handle, to recognize unnecessary classification, and to challenge it.

Ideally, such internal classification challenges would make the classification system at least partially self-correcting, as it was in the recent case cited by GAO.

But although the GAO reported that procedures for classification challenges are in place at the Department of Defense, that is only superficially accurate. The actual practice of formal classification challenges is highly localized in just a few corners of DoD and is totally absent from most others.

Of the 633 formal classification challenges that were reported by DOD in FY2016, there were a wildly disproportionate 496 challenges from US Pacific Command alone and another 126 from the Missile Defense Agency. (The reported numbers do not include challenges that are handled informally without leaving any record.)

Meanwhile, of the 677 DOD classification challenges that were reported in FY 2017, there were no more than 3 in all of the large DoD intelligence agencies.

The reason for this vast disparity among DoD agencies is not clear but it is probably not just a statistical fluke. Rather, it appears that a few DOD components are encouraging (or at least tolerating) classification challenges while most others are oblivious to or unaware of the procedure — if they are not actively discouraging it.

The good news here is that there is vast room for improvement.

If those DOD (and other) agencies and organizations that are not reporting classification challenges were directed to actively promote and encourage such challenges, it could go a long way toward improving classification policy generally.

Currently, however, things are moving in the other direction. DoD officials told GAO that they now “had few, if any, formal classification challenges.” They said “they relied more on informal classification challenges” with no identifiable impact.

But even if only 5-10% of the contested classifications are actually overturned (the number was 17.5% in 2016, according to ISOO), classification challenges could be an effective mechanism for enhancing the quality of classification decisions.

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The new GAO report was prompted by a request from Sen. Chris Murphy (D-CT) asking GAO to assess the procedures for challenging classification, including the options available to Congress.

GAO found that while Members of Congress can initiate challenges to classification at DOD and State, Members cannot appeal denials of their challenges (or failure to act) to the Interagency Security Classification Appeals Panel. Senator Murphy’s own attempt to do so last year was rebuffed. (Senator’s Challenge to War Powers Secrecy BlockedSecrecy News, September 11, 2020).

To rectify this situation and to enhance congressional oversight of classification policy, Sen. Murphy and Sen. Ron Wyden introduced The Transparency in Classification Act (S. 932).

“Overclassification for political purposes undermines Congress’s ability to hold the executive branch accountable and unnecessarily keeps the American public in the dark,” said Sen. Murphy. “Regardless of the administration, protecting the integrity of the classification system is a matter of national security.”

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The activities of the Interagency Security Classification Appeals Panel — which considers appeals of classification challenges and of Mandatory Declassification Review requests that have been denied — have been severely curtailed by the COVID-19 pandemic as well by longstanding logistical and administrative problems.

Between September 2020 and March 2021, the Panel decided on only four appeals. More than a thousand appeals are pending.

Categories: classification