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PIDB Proposal: “Three Ideas for Transformation: Classification Tax, Equity Reform, and Sunshine Dates”

May 19, 2011

What we're fighting for.

This proposal can also be found on the Public Interest Board’s Transforming Classification blog.  We welcome your comments –and comments on any of the fourteen other Transforming Classification white papers– at the PIDB’s site.  We’ll be briefly commenting on our proposal at the 26 May PIDB meeting held at the National Archives.

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“Three Ideas for Transformation: Classification Tax, Equity Reform, and Sunshine Dates”

by Bill Burr and Nate Jones

The Public Interest Declassification Board has offered some excellent proposals to improve the broken security classification system.  To reverse the disturbing trends of massive overclassification and decreasing openness, to put declassification activities on a firmer budgetary foundation, and to focus resources toward protecting true national security secrets, the National Security Archive proposes levying a classification tax, eliminating redundancies in the equity system, and adhering to “sunshine dates” when classifying and declassifying information.

Levying a Classification Tax.

The existence of the 400 million page backlog of classified historical documents at the National Archives reflects the failure of agency declassification programs, as well as the low priority that federal budget planners have given to declassification.   The government spent more than $10 billion in fiscal year 2010 on classification security, but only an infinitesimal amount, $50 million (.5%) on declassification activities.  Unless the National Declassification Center and other declassification programs have a dependable source of revenue, the ebbs and flows of federal funding could cause seriously harmful setbacks. Already, federal budget cuts are leading the military services to cut declassification activities.  This may be only the beginning.  As its first biannual report documents, the NDC requires more funding to increase its output and make better progress in tackling the hundreds of millions of pages of historic documents which remain classified.  Sufficient funding would ensure that the future generations of archivists, historians, and policymakers have access to the historic documents of the United States.

To make certain that the National Archives and other federal agencies have a reliable source of funding for declassification, and to make the agencies more directly responsible for their classification decisions, we propose a “Classification Tax,” a designated percentage of what federal agencies spend on classification and information security each year.  Congress could designate 2% of the total costs of the classification system for declassification.  A 2% designation on classification would produce $200 million this year, a four-fold increase, sufficient to expand funding for the NDC and other programs.  While the lion’s share of the revenue should go to the NDC, declassification funds could also be divided among the agencies in proportion to their share of the secrecy budget.

Eliminating Redundancies in the Equity System.

The agency “equity” system is a problem that has ground declassification processing to a halt.  This system is based on the understanding that records produced by government agencies in the national security field often contain information from a variety of agencies. For example, a situation report on a war in country X may contain information from CIA, National Security Agency, defense attachés, and embassies. Under the current system, each of those agencies have an equity, close to an ownership stake, in that situation report and each of them must consent to the declassification of their information before the document can be declassified. Because such documents are subject to multiple agency reviews, the declassification process is prolonged, sometimes for years or decades, and the cost of the review is drastically increased.

Contrary to what some agencies argue, agency “ownership” of information is not absolute. The Interagency Classification Appeals Panel frequently overrules agencies and forces declassification of “their” information. Unfortunately, most documents do not go through the ISCAP review process, so it is necessary to conceive of a system where equity interests do not trump timely declassification and efficient use of resources. One of the proposals raised on the PIDB “Transforming Classification” website suggested centralizing declassification authority in the National Declassification Center for historical documentation held at NARA. By applying guidance approved by ISCAP, the Center could take into account all and any legitimate agency concerns about equities.  The National Security Archive supports this proposal because, as one commentator suggested, it is likely to “improve efficiency in the system by minimizing or ending multiple reviews, which is critical to saving resources.”

Upgrading the NDC’s authority could do much good, but it would not end the interminable delays caused by equity issues that surface in archival FOIA and other declassification requests.  Therefore, we propose an interagency referral center paralleling the NDC. It could begin as a prototype center, combining officials from State, OSD and ODNI, who could promptly consider FOIA documents where multiple equities are at issue.

Adhering to “Sunshine Dates.”

The best mechanism to fundamentally transform classification is already explained in the President’s Executive Order on Classification; unfortunately, it is not followed by declassification authorities.

Executive Order 13526 mandates that “At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information.  Upon reaching the date or event, the information shall be automatically declassified.”  The executive order exempts confidential human sources, confidential intelligence sources and key design concepts of weapons of mass destruction from automatic declassification.

Adhering to this “sunshine date” and then declassifying the vast bulk of classified information at the date specified, rather than requiring a line-by-line review by a declassifying authority, would substantially decrease the universe of classified information and the burden on the limited resource of security reviewers.

Of course, no transformational declassification policy will be without critics.  Transparency advocates may argue that this “sunshine date” will encourage classification authorities to establish the maximum possible classification dates –which the current executive order defines at 25 years.  While all efforts should be made to train classifying authorities to properly classify documents in relation to their sensitivity, automatic declassification of documents at 25 years is better for the American public than the status quo.  Currently, hundreds of millions of pages of documents ripe for declassification, all older than twenty five years, remain mothballed in storage due to lack of resources.

Supporters of the existing system may argue that the danger posed to US national security outweighs adhering to the “sunshine dates” defined in Executive Order 13526, and that it is necessary to withhold hundreds of millions of pages of classified documents from the US public.  Several measures can be implemented to assuage these concerns of damage to national security.  Classifying authorities must be trained or re-trained to follow the Executive Order on classification and mark each newly classified document with an accurate automatic declassification date.  They must also be certain to identify human sources, intelligence sources, and WMD designs that cannot be automatically declassified and must be reviewed by declassification experts.  This will ensure that all future classified information not mentioning human sources, intelligence sources, or WMD design, can be declassified on the date specified by the classifying authority without undue harm to US national security.  “Sunshine dates” will ensure that information security professionals can direct the bulk of their efforts toward protecting America’s real national security secrets, rather than decades-old historic records which should be expeditiously declassified.

The amount of classified information in America is growing at an exponential rate while the amount of resources available to declassify information remains flat.  The current system of declassification has become untenable.  We believe that levying a classification tax of 2% to ensure steady declassification funding, reforming the equity system to eliminate redundant human declassification reviews, and adhering to “sunshine dates” to automatically declassify the bulk of information in the classified universe, are the best solutions to transform classification, to focus on protecting true national security secrets, and to ensure the public’s access to its formerly classified history.

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