The Menace of Overclassification

This article was originally posted on the official Sunshine Week website, sponsored by the John S. and James L. Knight Foundation, Bloomberg, The Gridiron Club and Foundation
American Society of News Editors, and Reporters Committee for Freedom of the Press. 

Archive FOIA Coordinator Nate Jones

Last month, Director of US National Intelligence James Clapper got a lot of people’s attention when he conceded the American people should have been told that the National Security Agency was tracking their calls. “Had we been transparent about this from the outset…we wouldn’t have had the problem we had.” This striking remark exposes another dirty little secret: there are trillions of other improperly classified records that could harmlessly be revealed.

In fact, it’s so easy to classify new secrets that government classifiers joke that they can find the authority to classify a ham sandwich. These secrets tend to be permanent. Just last month, the Department of Defense blacked out a fact students learn in US History 101 – that the Cuban Missile Crisis ended with a swap of Soviet nukes in Cuba for the US nukes in Turkey. There are so many new secrets created, and so few old secrets released, that the runaway US classification regime has become a menace to American democracy.

Chart from the Information Security Oversight Office 2012 report to the president showing more than 95,180,243 classification decisions in 2012.

The most recent available data shows that in 2012 alone, there were more than 95 million decisions to classify US documents. The cost of storing these secrets for just one year well exceeds ten billion dollars. We can’t be certain of the exact figure, however, because the cost that intelligence agencies, including the CIA and NSA, pay to house their secrets is – surprise, surprise – classified.

While the number of government secrets is increasing, the amount of money the government contributes to declassification is shrinking; it’s less than one half of one percent of the total spent on classification. To his credit, President Obama recognized this problem and attempted to fix it. In his Executive Order governing the classification system, the president established a National Declassification Center and ordered it to review and declassify 400 million pages of historic classified documents before the close of 2013. Disappointingly, only 22 percent of these documents have been declassified and made available to the public. The remarkable takeaway is that agencies are able to ignore a presidential order to declassify their documents.

The problem of overclassification is not a cottage complaint from historians deciphering Cold War mysteries. Of all the Edward Snowden revelations, perhaps the most important is that classification is the tool that the executive branch uses to enact policies without public discussion, or consent. According to Representative Jim Sensenbrenner, one of the authors of the Patriot Act, the NSA “ignored restrictions painstakingly crafted by lawmakers and assumed plenary authority never imagined by Congress” by cloaking its actions behind the “thick cloud of secrecy” of the classification system. DNI Clapper, apparently, now agrees.

The NSA’s self-conferred authority to warentlessly collect Americans’ telephone metadata is not a legitimate secret. Though, certainly, there are some. These include: war plans before they are conducted; nuclear design information, and some intelligence sources and methods. The protection of legitimate secrets is undermined when they are contaminated with the misclassification of dubious secrets. We should strive for a small graveyard of legitimate secrets protected by a high, impenetrable fence; not a vast prairie of dubious secrets protected only by pickets.

To begin fixing the classification system and make good on its promise that “no information may remain classified indefinitely,” the Obama administration must double down on the National Declassification Center. With increased authority and efficiency measures, the National Declassification Center has the potential to become the permanent declassification pipeline of former secrets, now expired.

The task of monitoring the classification of current information falls largely to the federal courts and Congress. US courts have recently overturned government secrecy claims about the NSA’s dragnet phone metadata collection program, the government’s refusal to “confirm or deny” its use of drone warfare, and its administration of foreign aid. Continued and expanded judicial review of the government’s secrecy claims will prevent the most egregious secrecy abuses.

Congress must also re-embrace its duty to check executive branch claims of secrecy. To start, intelligence oversight committees must ensure that they are receiving the unvarnished truth during their briefings and testimony, and report much more than they do to the public. Congress’s mandate to oversee the classification system is broader than that, though. It was Senator Mike Gravel, after all, who in 1971 entered the secret Pentagon Papers history of the Vietnam War into the Congressional Record for all to read.

Reacting to leaks, DNI Clapper has recently declassified more than two thousands pages about the NSA’s telephone metadata collection program. He explained, “the harm to national security in these circumstances is outweighed by the public interest.” This was certainly a positive step. There are trillions more to take.