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FAS Note: For related background on this proposed new exemption to the Freedom of Information Act, see here.

April 18, 2000

Senator John Warner, Chairman
Senate Armed Services Committee
SR-228 Russell Senate Office Building
Washington, DC 20510-6050

Dear Chairman Warner:

We are writing to urge your Committee to reject the Defense Department's proposed Section 903 to the FY 2001 Defense Authorization Act, entitled "Authority to Withhold from Public Disclosure Certain Sensitive Information."

The problem that this section addresses the need to protect foreign information that has been provided to the U.S. Government in confidence has already been fixed.

DOD expresses concern that because unclassified foreign information that was provided in confidence must be classified to protect it in the U.S., this results in "increased security requirements imposed by the United States" which entail "unnecessary costs." Similarly, some of our allies have a fourth classification level called "Restricted" which DOD says cannot be protected in the U.S. without upgrading its classification to "Confidential," our lowest classification level, which again would entail increased costs due to additional security requirements.

These concerns are obsolete, and based on outdated information.

Executive Order 12958 (60 Fed. Reg. 19825) already provides the full degree of flexibility needed to efficiently protect foreign government information that has been provided in confidence, without increased security requirements. The Order requires only that foreign government information be provided "a degree of protection at least equivalent to that required by the entity that furnished the information." (Sec. 1.7e)

The Implementing Directive for this Order that was issued by the Information Security Oversight Office and the U.S. Security Policy Board is explicit: Equivalency is all that is required, even if it provides less protection than that otherwise afforded by US classification policy. Thus:

The effective date of this Directive was October 25, 1999. Because it is so recent, DOD may not have been fully cognizant of its provisions when submitting the present proposal to Congress. But the fact is, the proposal is moot. No security upgrade is required to protect foreign information that has been provided in confidence. No additional costs are entailed. Equivalency of protection is sufficient. There is no remaining basis for the DOD proposal.

If Congress were to adopt the DOD proposal for a new exemption from the Freedom of Information Act despite the changed circumstances which render it moot, this could have at least two undesirable consequences:

First, it would tend to erode the FOIA. There are a number of significant international cooperative programs underway, conducted on an unclassified basis, which should be exposed to the light of day, including the requirements of the FOIA. No blanket exemption is warranted. The executive branch's proclivity for new FOIA exemptions threatens the FOIA with the death of a thousand cuts.

Second,the new proposal would obscure the bright line between classified and unclassified information, a step that would represent poor security policy. It would create, in effect, an additional classification level. Many security experts, like those represented on the 1994 Joint Security Commission, believe we need fewer classification levels, not more.

For all of these reasons, we hope you will reject the DOD proposal as untimely, unnecessary, and unwise.

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