New executive order means more secrecy

By Alan B. Morrison
May 2, 2003

On March 25, 2003, President Bush issued Executive Order 13,292 on classifying documents for reasons of national security. To the surprise of no one, keeping secrets is now easier than it was before. Although the changes are subtle, every one of them will lead to more secrecy.

No one disputes that the government may keep information from the public for defense and foreign affairs reasons and that the president and those who work for the executive branch need to decide the appropriate standards for classifying and declassifying documents. The key issue is how tough should they be, and the Bush administration's answer is "Very." President Nixon had the reputation of running the most secretive administration, but even he favored declassification of older records, if only to embarrass his Democratic predecessors. Bush's new executive order, however, backtracks on the government's willingness to declassify or even consider declassifying records that are many years old and have little or no current impact on national security.

The best way to see the damage that this new order will do is to examine some of the changes it will bring. One of the innovations of a 1995 executive order issued by President Clinton was that it required officials who classify a document to limit the duration of secrecy, so that after some period of time, it would automatically be declassified.

That order also made it quite difficult to make that period longer than 10 years, but the Bush order ups that to 25 years and allows the longer period based solely on "the sensitivity of the information" C which is an open invitation to long-term classification.

Another way that the Clinton order opened up classified records was through automatic declassification after 25 years for documents that the Archivist of the United States determined have permanent historic value, with certain narrow exceptions. The Bush order keeps that framework, but lowers the standard to qualify for an exception. In addition, it delays for more than three and a half years the deadline for agencies to comply with these provisions. It also adds four new exemptions that create further avenues for continued secrecy beyond the extended deadline.

The Clinton order quite sensibly took the position that if there is a "significant doubt" about the need to classify certain information, then don't keep it secret, or at least assign it a lower classification level. Not surprisingly, the Bush orders strikes this language, which sends a clear message that all doubts will be resolved in favor of classification, as if the White House or the Defense or State departments needs any encouragement to do "what comes naturally" when it comes to secrecy and national security.

The order covers far more than what traditionally is thought of as national security information. For instance, most people don't associate national security with trade agreements, but under the new executive order, any document received from a foreign government "is presumed to cause damage to the national security" and hence can, and almost certainly will, be shielded from public view.

The purpose of this change is not to protect the United States from foreign invasions but to be sure that organizations such as Public Citizen, that raise questions about new potential trade agreements, or how disputes are being handled under existing agreements, do not find out what our trade negotiators are doing until it is too late to stop them.

This changes an existing rule that requires a specific reason for classifying foreign government information and virtually guarantees a veil of secrecy will descend over trade negotiations and many other non-military matters as well. One side effect of this new rule is that pro-trade forces in the business community are also cut out of the process unless they have proper security clearances for this type of information.

The executive order includes a number of other increases in secrecy that are detailed in a memorandum that Public Citizen has posted on its new Web site, but you get the point. Since the president and many of his top advisers came from the business world, where everything is secret, or from the parts of the government where secrecy always triumphs over openness, the changes resulting from Executive Order 13,292 are hardly unexpected.

Undoubtedly the White House will proclaim that the threat of terrorism justifies secrecy, as it claims for almost everything else that the administration is doing, but there is simply no evidence that the attacks of Sept. 11 were aided in any way by failing to classify information.

There is a proper place for secrecy in government, but a free society must also balance the need for openness and accountability. The Bush executive order has unwisely given those considerations a decided backseat in its hierarchy of democratic values.


Alan B. Morrison is director of the Public Citizen Litigation Group, a part of Public Citizen, a nonprofit consumer advocacy organization based in Washington, D.C.