“There’s classified, and then there’s classified”: Tangible Steps to Fix the Classification and Declassification System
The former head of the Information Security Oversight Office, responsible for oversight of the US classification system, has acknowledged that classification officials joke that “you could easily classify the ham sandwich.” Barack Obama has summarized the tension between the public’s right to know and the necessity for the government to keep some secrets as: “There’s classified, and then there’s classified.” Certainly, much work remains for the Public Interest Declassification Board to meet its goal of “modernizing the national security classification and declassification systems.” Here I suggest three achievable measures that the next Executive Order on Classification could take to reduce over-classification, improve declassification, and begin to rebuild the public’s trust that documents stamped as “secret” actually contain information that should be withheld from the public.
First, the next Executive Order should further improve the efficiency of the National Declassification Center and expand its authority. The NDC has eliminated much—though certainly not all—of the National Archives’ backlog of historic documents. Its “indexing on demand” program serves as a quick and efficient mechanism for researchers to request and usually receive previously classified records. But further improvements are needed for the NDC to achieve its mission of “releasing all we can, protecting what we must.” It must completely end its “pass fail” reviews where a single classified word in a document can cause it to “go to the back of the vault” and remain classified indefinitely. It must also stop allowing multiple re-reviews by multiple agencies of historic documents. The NDC should also, once again, adhere to the principle of automatic declassification; this principle, established in the current Executive Order but not practiced, requires documents to be declassified without a review when they reach a certain age. This is the only workable solution to the coming exponential avalanche of digital historic records. The PIDB has correctly called these malpractices as “wasteful, expensive,“ and “unsustainable.” Fortunately, the NDC has taken note and begun to remedy them.
Once these inefficiencies are modified and the NDC is solidified as the government’s premier, most efficient declassification mechanism, it should expand to target not just classified documents accessioned to NARA but also those held by the Presidential Libraries. Declassifying documents held by the Presidential Libraries is the bureaucratic equivalent to passing a kidney stone. For a member of the public to even see what is in the Library’s boxes a researcher must submit a Freedom of Information Act request (which usually takes years to process). Even worse, any document that has ever been deemed classified is not even reviewed during this process and the researcher must submit a second Mandatory Declassification Review request (which again usually takes years), before possibly having the ability to access this critical history (even then, if it has been censored by an overzealous redactor, the MDR appeal process, again, usually takes years).1 If the incoming administration is able to utilize the strength of the National Declassification Center to declassify all declassifiable material held by the Presidential Libraries, it will be an extremely beneficial accomplishment.
Second, the incoming administration’s Executive Order on Classification should finally fully realize the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document. This means that no sets of information—including any agency’s operational files—should be automatically exempted from declassification review. The US government once used this specious claim to attempt to thwart the release of any President’s Daily Brief, ever. Fortunately, under the current administration the Central Intelligence Agency and National Archives reversed course and released the PDBs from the Johnson and Nixon administrations —though many still have far too many redactions. Unfortunately, agencies including the CIA continue to ignore the current Executive Order’s instruction that “No information may remain classified indefinitely” and refuse to even review other historically important operational files for release.
The current Executive Order also includes a provision which states that in “exceptional circumstances” an agency head may declassify “properly classified” information when she deems that “the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.” The language in the next Executive Order should be modified so that this common sense logic applies to all classification and declassification decisions, not merely “exceptional circumstances.” While the fact that President Kennedy agreed to remove Jupiter Missiles from Turkey to end the Cuban Missile Crisis may be technically “properly classified,” it is not a justifiable secret to keep from the public —and greatly harms the government’s ability to keep its true secrets.
Finally, the Public Interest Declassification Board should get into the declassification business. The Board has done much good work by issuing guidance and recommendations, providing a forum for public insight, and improving classification and declassification from the inside. But it has done little to actually declassify documents. The next Executive Order on Classification –or if necessary, legislation– should empower the PIDB get its hands dirty. The PIDB should have the authority to compel the NDC or another body to declassify the documents, including those referenced in this piece, that it deems in the public interest —there are trillions of them.
1. In one startling case, it took the National Security Archive 12 years to win the release of a document held by the George H. W. Bush Presidential Library. See http://nsarchive.gwu.edu/NSAEBB/NSAEBB427/ footnote 12.↩