Congress Grapples with Classification Issues
A bill introduced in the House of Representatives by Rep. Bennie Thompson (D-MS) would direct the President to reduce the amount of classified information by 10%. It is one of several new congressional initiatives seeking to rectify perceived defects in the national security classification system.
Most prominently, the Senate Intelligence Committee is engaged in an ongoing dispute with the Administration over declassification of the Committee’s report on the CIA’s post-9/11 detention and interrogation program.
Sen. Dianne Feinstein, the Committee chair, said the Administration’s proposed redactions to the executive summary of the report were unacceptably broad.
“I have concluded the redactions eliminate or obscure key facts that support the report’s findings and conclusions,” she said on August 5. “Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.”
With this contentious experience fresh in mind, one might have expected the Senate Intelligence Committee to have acquired special insight into the failings of the existing classification system and to have devised some well-considered remedial measures to address them.
But that does not appear to be the case.
In its new intelligence authorization bill for Fiscal Year 2015 (S. 2741, sec. 311), the Committee weakly requires the Director of National Intelligence to prepare a report “describing proposals to improve the declassification process throughout the intelligence community.”
Under current circumstances, this proposed reporting requirement seems like a failure of imagination and leadership, and probably a waste of everyone’s time. Perhaps it is just a placeholder for something more ambitious that is still to come.
By contrast, the bill introduced by Rep. Thompson in the House and by Sen. Ron Wyden in the Senate is prescriptive and solution-oriented in its treatment of the issue.
Among its several provisions, the new bill (HR 5240) would require the President “to establish a goal for the reduction of classified information by not less than 10 percent within five years through improved declassification and improved original and derivative classification decision-making,” according to a Fact Sheet on the bill, dubbed the CORRECT Act. (It is unclear how the 10 percent reduction in information would be measured, whether in pages or bytes or number of classification decisions or by some other standard.)
The Thompson/Wyden bill would also bolster and expand the Public Interest Declassification Board, assigning it the responsibility to evaluate the continuing validity of all current classification guidance. Though this provision may seem innocuous, it is a clear challenge to the autonomy that is currently enjoyed by executive branch agencies regarding what is to be classified. As such, it represents the kernel of a solution to the problem of overclassification.
The bill would further direct the Privacy and Civil Liberties Oversight Board to establish standards for the emerging insider threat program, and it would decisively break from current practice by authorizing the Merit System Protection Board to review agency denials or revocations of security clearances.
However, the deliberative effort that has gone into preparing the bill is not going to yield any near-term reward. In all likelihood, Rep. Thompson’s CORRECT Act will not even receive a hearing in the remainder of this expiring Congress.
Another modest but potentially useful legislative effort is an amendment to be introduced by Sen. Jeanne Shaheen that would enhance the authority and capacity of the National Declassification Center.
If the Senate Intelligence Committee wants a report on “improving declassification,” as the new intelligence authorization bill requires, then there is already a report with that very title that was prepared by the Public Interest Declassification Board in December 2007.
Several of the report’s recommendations have still not been acted on. Among them is a proposal that “formal procedures should be established for the declassification review of classified [congressional] committee reports and hearing transcripts.”
Because such records are produced and held by congressional committees, such as the Senate Intelligence Committee, they are not eligible for declassification unless and until the originating committee takes the initiative to have them reviewed and declassified. Yet this is rarely done, despite the importance of these materials.
“Frequently, closed sessions of congressional committees are the only occasion when executive branch policy in the national security area is explained, challenged (by members), and defended by administration representatives. The exchanges at these hearings, as well as the views of Congress (elaborated in classified committee reports), often affect the policy choices of the executive branch. Yet, because the records of the committees involved are classified and never subjected to declassification review, the public and historians are largely unaware of their existence,” the PIDB report said.
“Despite their historical significance, classified records created by the Congress are reviewed for declassification only on a hit-or-miss and relatively limited basis. As a result, the public is denied a valuable source of historically significant information,” the report said.
So, for example, not a single classified annex to the annual intelligence authorization bills produced by the congressional intelligence committees has ever been declassified.
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