From 1995 to 2002, the government made enormous progress in drawing back the veil of secrecy imposed by the national security classification system. An Executive Order signed by President Clinton in 1995 cut back on the ability of bureaucrats to classify information and, most importantly, encouraged the release of historical records by setting a deadline by which officials must either make the information public or show that continued secrecy is justified. The 1995 Order was so successful in promoting declassification that, during the first six years after this Order was issued, the average number of records declassified each year increased more than tenfold, and more than five times the number of records declassified from 1980 to 1994 were declassified in just six years under the 1995 Order. Information Security Oversight Office Report to the President, 2001 at 3-4 (Nov. 2002) ("ISOO 2001 Report").
In March 2003, the Bush Administration demonstrated that it intended to take a different approach by amending the 1995 Order. The Bush Administration's new directive for classification is Executive Order 13,292, and it immediately displaces the 1995 Order, Executive Order 12,958.
Although Executive Order 13,292 retains most of the structure of the 1995 Order, it modifies many of the critical provisions in ways that encourage greater secrecy and allow agencies to postpone or avoid declassification that would have been required under the 1995 Order. The most significant differences between the Bush Administration Order and the 1995 Order are summarized below.
In the course of diplomatic, military, and trade activities, the United States may receive information from other countries and international organizations that those entities want to keep secret for their own reasons. Executive Order 13,292 facilitates classifying such information by providing that "unauthorized disclosure of foreign government information is presumed to cause damage to the national security." Executive Order 13,292, Section 1.1 (c). This presumption eliminates a provision of the 1995 Order that contributed to a significant court decision rejecting the government's claim that it was entitled to withhold information solely because it came from a foreign government.
A presumption that the unauthorized disclosure of information from a foreign government harms the national security appeared in a 1982 Reagan Administration Executive Order on classification. Executive Order 12356, Section 1.3(c) The 1995 Order replaced this provision with a statement that no such presumption should be used when making classification decisons. Executive Order 12958, Section 1.3(c). This provision of Executive Order 12,958 was a significant factor in a 1998 decision by the federal Court of Appeals for the Ninth Circuit that rejected the government's claim that a communication from the United Kingdom could be withheld from a FOIA requester because it had been classified by the Department of State. Weatherhead v. United States, 157 F. 3d 735 (9th Cir. October 1998), vacated as moot, 528 U.S. 1042 (1999) . The Ninth Circuit found that the government was unable to demonstrate that there was any specific reason for withholding the documents at issue and, therefore, without a presumption that foreign government information should be classified, the government could not justify withholding this document under the 1995 Order. The Court of Appeals panel also examined the letter, and found that its contents were innocuous and disclosure could not reasonably be expected to result in damage to the national security. The Department of State asked the Supreme Court to overturn the decision, but released the document shortly before the Supreme Court was scheduled to hear arguments in the case.
Although Executive Order 13,292 creates a presumption that favors classification of foreign government information, it does not provide that foreign government information is automatically classified. The government must still follow the procedural requirements of the Executive Order, and foreign government information is subject to the prohibitions and limitations on classification. In a briefing introducing the new order, the White House stated that it is "just a presumption. . . not an absolute restriction." White House Conference Call Background Briefing Subject: Executive Order 12958, March 25, 2003 (attribution: Senior Administration Official). However, there is nothing in the new Order to indicate how classifying authorities or courts should determine whether the presumption should not be applied.
The definition of "foreign government information" in Executive Order 13,292 is the same as the definition in the previous order. Foreign government information includes information provided to the United States by foreign governments and international organizations, and information that the United States produces jointly with such governments and organizations.Executive Order 13,292, Section 6.1(r). Significantly, to qualify as "foreign government information" the information provided by a foreign government must be provided to the United States with "an expectation that the information" is to be held in confidence. Id. If the information is produced by the United States, it must be produced as a result of an arrangement "requiring that the information" be held in confidence. Id. These provisions should make the "foreign government information" definition inapplicable to information exchanged under international agreements that do not require confidentiality or that explicitly contemplate public disclosure. See Notes of Interpretation of Certain Chapter 11 Provisions, (NAFTA Free Trade Commission, July 31, 2001); Procedures For The Circulation And Derestriction Of WTO Documents, Decision of 14 May 2002
The new order also provides that foreign government information need not be assigned a U.S. classification marking if United States agency responsible for the information determines that the foreign government markings are adequate to meet the purposes served by U.S. classification markings. Executive Order 13,292, Section 1.6(e).
Independent of this Executive Order, the Secretaries of Defense, Transportation and Energy have statutory authority to withhold certain foreign government information if ther is a written request by a foreign government or international organization that the information be withheld. 10 U.S.C. 130c . This statute includes an intricate set of limitations and procedural requirements for exempting foreign government information. These statutory provisions are likely to be irrelevant under the new Executive Order because they do not apply to information that is classified pursuant to an Executive Order. Id. 130c(e)
The new order makes it easier to classify information for longer periods of time. Prior to the 1995 Order, most records were classified for an indefinite duration and would only be declassified when the agency took affirmative steps to declassify them. Under the 1995 Order, an official classifying a document was required to identify a period of time that the information would be classified and the document would automatically lose its classified status when this period expired. The 1995 Order also provided that a period greater than ten years could be established only if the classifier determined that unauthorized disclosure "could reasonably be expected to cause damage to the national security" for a period greater than 10 years, and that the release "could reasonably be expected to" result in one of nine categories of harms. Executive Order 12,958, Section 1.6(d). Under the 1995 Order, agency officials selected periods of less than 10 years as the duration of classification in 50-60% of all classification actions. ISOO 2001 Report, 12-13.
Executive Order 13,292 eliminates the language in the 1995 Order that restricts the ability of officials to select periods of more than 10 years. The original classification authority may now mark information for declassification "for up to 25 years from the date of the original decision" if it determines that this classification is warranted by "the sensitivity of the information." Executive Order 13,292, Section 1.5 (b). Under the 1995 Order, extensions of classification were limited to 10 year periods. Executive Order 12,958, Section 1.6(c). The new order imposes no time limit on such extensions.
In addition, the new order allows extension of the classification period for records that are more than 25 years old that have been determined by the Archivist to have permanent historical value. Executive Order 13,292, Section 1.5(c). Under the 1995 Order, the authority to extend the duration of classification did not apply to these records. Executive Order 12,958, Section 1.6(c).
The 1995 Order initiated a procedure for "automatic declassification" in which all classified information contained in records that (1) are more than 25 years old, and (2) have been determined by the Archivist to have permanent historical value, would be declassified unless the information fell within certain exempt categories and the agency head affirmatively took action to exempt the information from automatic declassification. Executive Order 12,958, Section 3.4. The new Order retains the provisions of the 1995 Order for automatic declassification, but makes several significant modifications.
First, the new order revises the language that defines the nine categories of information that agency heads are permitted to exempt from automatic declassification. The 1995 Order provided that an agency head could exempt specific information if the release of the information "should" be expected to result in one of nine categories of harm. Executive Order 12,958, Section 3.4(b). Executive Order 13,292 changes "should" to "could." Executive Order 13,292, Section 3.3(b)
Second, the new Order defers the deadline for automatic declassification to fully take effect. In 1999, President Clinton extended the original deadline so that agencies did not need to comply with the automatic declassification provisions until April 17, 2003, with respect to records with information created by or controlled by multiple agencies, and records within file series that are replete with information pertaining to intelligence sources or methods. Executive Order 13,142, Section 2, 64 Fed. Reg. 66089 (Nov. 19, 1999). Executive Order 13,292 defers this deadline for automatic declassification until December 31, 2006. Executive Order 13,292, Section 3.3(a).
Third, the new order also provides that automatic declassification can be postponed beyond 2006 for some categories of records:
In 2001, the government estimated that approximately 26% of the records subject to automatic declassification still had not been reviewed. ISOO 2001 Report, at 15. This represents approximately 426 million pages of records. Id. Because the Bush Administration has extended the deadline for reviewing these materials, it has removed the immediate incentive for agencies to determine whether these records are properly classified or should be made public.
Finally, the 1995 Order limited an exemption from automatic declassification for records containing information on sources to circumstances in which unauthorized disclosure of the source "would clearly and demonstrably damage the national security interests of the United States." Executive Order 12,958, Section 3.4(b)(1). Executive Order 13,292 eliminates this restriction. Executive Order 13,292, Section 3.3 (b)(1). Executive Order 13,292 also adds language that allows agency heads to exempt information that could "reveal current vulnerabilities of systems, installations, infrastructures, or projects relating to the national security."Executive Order 13,292, Section 3.3(b)(8).
The 1995 order included an admonition that "[i]f there is significant doubt about the need to classify information, it shall not be classified." Executive Order 12,958, Sections 1.2(b). Similarly, the Order provided that "significant doubt" about the appropriate level of classification should result in classification at the lower level. Id., Section 1.3(c). The new Order eliminates both of these provisions and does not say anything about whether doubts should be resolved in favor or against classification. In a briefing discussing Executive Order 13,292, the White House stated that the significant doubt provision was removed because "[i]t was the judgment of the professionals who deal with this and the judgment of the affect[ed] agencies that that language in either direction simply was vague and did not assist the process." White House Conference Call Background Briefing Subject: Executive Order 12958, March 25, 2003 (attribution: Senior Administration Official).
The new order makes it possible to reclassify previously declassified information. The 1995 Order prohibited reclassification once information has been declassified. Executive Order 13,292 permits reclassification if "the information may be reasonably recovered," the information satisfies the standards for classification, the reclassification is personally authorized, in writing, by an agency head or deputy agency head, and the reclassification action is reported promptly to the Director ISOO. Executive Order 13,292, Section 1.7(c).
The order also includes a modest expansion of authority to classify or reclassify information after a FOIA request has been received for the information. The 1995 Order authorizes information to be classified or reclassified after a request is received only if the information "has not previously been disclosed to the public under proper authority" and certain other conditions are met. Executive Order 12,958, Section 1.8(d). However, the 1995 Order provided that information contained records that are more than 25 years old and have been determined to have permanent historical value could not be classified under this authority. The new order eliminates this limitation and, therefore, allows such historical records to be classified or reclassified under the conditions set forth in the 1995 Order. Executive Order 12,958, Section 1.7(d).
The new order preserves the Interagency Security Classification Appeals Panel (ISCAP), an innovation of the 1995 Order. ISCAP is an interagency panel with the authority to review decisions made by agencies in the context of automatic declassification exemptions, challenges to classification decisions by holders of classified information, or mandatory declassification review requests. However, the new order limits ISCAP's authority by permitting the Director of Central Intelligence to reject Panel rulings if he determines that declassification "could reasonably be expected to cause damage to the national security and to reveal (1) the identity of a human intelligence source, or (2) information about the application of an intelligence source or method (including any information that concerns, or is provided as a result of, a relationship with a cooperating intelligence element of a foreign government)." The Director's decision to override ISCAP can be reversed only by the President. Executive Order 13,292, Section 5.3.
The new order amends the definition of "original classification authority" to include "the Vice President in the performance of executive duties." Although the Vice President was not listed as an original classification authority in the previous Executive Order, a separate Presidential directive gave the Vice President Top Secret original classification authority, including the power to delegate that authority to others. See 60 Fed. Reg. 53845-46 (Oct. 17, 1995)(Presidential Order designating the Vice President and other senior officials as "original classification authorities")
The new order adds information originated by the Vice President and his staff to the categories of information that are exempt from mandatory declassification review. Under the 1995 Order, the categories of exempt information included those originated by the incumbent President, White House Staff, commissions appointed by the incumbent President and "other entities within the Executive Office of the President that solely advise and assist the incumbent President." These categories continue to be exempt under Executive Order 13,292. Executive Order 13,292, Section 3.5(b)
The Vice President and certain Vice Presidential appointees have also been added to the list of individuals that may be given access to classified information after they leave office without demonstrating a need to know. Executive Order 13,292, Section 4.4(a).
During the first full fiscal year of the Bush Administration (2001), the total number of classification actions increased by 44 percent to 33,020,887. ISOO 2001 Report, at 2. The new Order contains language that expands the authority of officials to classify information.
The new Order lists information concerning "weapons of mass destruction" as a distinct category of information that may be classified, and adds language that explicitly includes information relevant to "defense against transnational terrorism" in pre-existing categories. Executive Order 13,292, Section 1.4(e), (g), (h). Neither of these changes are likely to have a significant impact because such information was generally classifiable under the language of the 1995 Order.
The new Order contains new references to "infrastructure" information that make explicit that such information may be classified. The categories of classified information include information that reveals "vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism." Executive Order 13,292, Section 1.4(g). As noted above, information that would "reveal current vulnerabilities of systems, installations, infrastructures, or projects relating to the national security" may also be exempted from automatic declassification. Executive Order 13,292, Section 3.3(b)(8).
The new Order strikes out all references to a declassification advisory board authorized by the Executive Order 12,958, Section 5.5. This "Information Security Policy Advisory Council" was never appointed. The Council was to be a seven-member advisory group appointed by the president to advise on declassification matters.
Executive Order 13,292 contains a new provision authorizing emergency disclosure of classified information to an otherwise unauthorized individual "when necessary to respond to an imminent threat to life or in defense of the homeland." Executive Order 13,292, Section 4.2(b) The Director of the CIA is authorized to issue the implementing directives for such emergency disclosures.
Prepared by ISOO; Posted by Federation of American Scientists
By STEVEN AFTERGOOD
Steven Aftergood is director of the Project on Government Secrecy at the Federation of American Scientists.