Is ISCAP a Victim of Its Success?
The Interagency Security Classification Appeals Panel (ISCAP) has justifiably acquired a good reputation for its fairness in making final decisions on mandatory declassification review (MDR) appeals for national security information. During the course of its existence since 1996, through FY 2015 it reviewed over 2400 documents and released more information from over 1800 of them, with 694 documents declassified in their entirety. By supporting greater transparency in government, ISCAP provides an important corrective to endemic over-classification in the national security bureaucracy, although its good example has not had an appreciable impact on the practices of some agencies.
By operating on a majority rule principle, ISCAP decisions prevent the continued over-classification for specific records of a variety of agencies, especially, but not only, the Central Intelligence Agency and the Department of Defense. When those agencies deny thirty or forty-year old documents in their entirety, other ISCAP members often take a more balanced view and vote in favor of releasing all of, or much of, the denied documents. An early decision, in 1998, was a promising start. While defense agencies had denied the substance of a September 1964 McGeorge Bundy memorandum to President Lyndon Johnson on the emergency authorization of nuclear weapons use, ISCAP ruled in favor of full release.
Paradoxically, ISCAP’s deserved reputation, and also a failure of the declassification system, has created what amounts to a crisis. A look at ISCAP’s backlog of appeals makes the problem palpable. It is lengthy and has grown far longer with the addition of hundreds of appeals in recent months. The present writer has made his own contribution to the backlog and others have filed many more appeals. It is not surprising that requesters file MDRs and eventually appeal to ISCAP. Unlike FOIA, where only one appeal is possible (before resorting to legal action), MDR provides the chance for a second appeal. Moreover, because ISCAP has a good track record, requesters believe they have a better chance of getting a reasonable decision. The lengthy queue is not surprising.
One problem that may contribute to the growing queue is a collective failure by ISCAP, its parent organization, the Information Security Oversight Office (ISOO), and Executive Order 13526. According to the Executive Order, “when making decisions under sections 3.3, 3.4, and 3.5 of this order [these are the sections concerning automatic, systematic, and mandatory declassification], agencies shall consider the final decisions of the Panel.” In the early days of ISCAP, there was a hope that the Panel would create a feedback loop that would influence agency declassification decisions and standards and help them avoid bringing cases to ISCAP on the same types of information. As chairperson Roslyn Mazer explained in 1999, ISCAP’s decisions could “affect the declassification of many thousands of documents beyond what it sees directly on appeal, and enable agencies to make more consistent and efficient determinations.”
It does not appear that ISCAP has been able to use its authority to create an effective feedback mechanism. Admittedly, the Executive Order’s language “shall consider” does not give ISCAP much clout with the agencies and an effective feedback mechanism would require more demanding language, such as “must consider,” or requiring the agencies to revise instructions and manuals in light of ISCAP decisions. Perhaps some agencies “consider” ISCAP decisions, which reflect on them, and change their guidelines and manuals accordingly. But from long-standing patterns of denials at agencies such as the CIA and the Defense Department, it is hard to tell whether ISCAP decisions have had an impact. At some agencies, over-classification remains endemic.
The lengthy backlog of appeals means that ISCAP will not make decisions on some of them for years. An example of the problem are two appeals that the present writer filed in 2010 for documents from the U.S. Navy. In late 2016, ISCAP made decisions on them. I suspect it will take far more than six years before ISCAP makes decisions on more recent cases in its docket.
To help prevent ISCAP from sinking under the weight of appeals, requesters can take some responsibility. Not every denial should be appealed. It is wise to establish priorities. Filing hundreds of appeals at once can be counterproductive because ISCAP will not get to them until long after the requester needs the documents. If the excisions are small, e.g. only a few sentences or a paragraph, it might better to refrain from further appeal, recognizing that ISCAP’s resources are slender and appealing even an excision takes staff effort and paper-work.
Plainly ISCAP could use more staffing so that it can make decisions more quickly, two or three years instead of six or longer. When vital federal operations are under attack, however, as they are now, more staffing is unlikely; what is more likely is that ISCAP’s budget will be cut along with NARA’s. Whatever happens, ISCAP and ISOO should make even greater efforts to ensure that ISCAP decisions have an impact across the bureaucracy. Requesters, research, historians, and others can only hope that ISCAP becomes even more effective in providing greater transparency for the activities of the U.S. government’s national security establishment.