Posts from January, 2010

Obama Designates and Limits Original Classifiers

In a December 29 Order published in the Federal Register yesterday, President Obama designated more than two dozen officials as “original classification authorities” (OCAs) who have the power to classify information as Top Secret or Secret, and (in most cases) to delegate such authority to their subordinates.

The new list of authorized classifiers contains only a few changes from past practice, but the Executive Order on classification policy that was also issued on December 29 imposes several new conditions on original classifiers that should help limit excessive secrecy.

A prior list of classifiers issued in 1995 by President Clinton had granted Top Secret classification authority to the Director of the Office of Management and Budget (OMB).  That authority was rescinded by President Obama.  Also newly rescinded are the classification authorities of the Chairman of the Council of Economic Advisors (Secret), the President of the Export-Import Bank of the United States (Confidential), and the President of the Overseas Private Investment Corporation (Confidential).  These officials lost their classification authority primarily because they were not using it very much.  “An analysis of OCA activity since 1995 was part of the process [of identifying which OCAs were needed]” said William J. Bosanko, director of the Information Security Oversight Office, who himself was newly granted Top Secret classification authority in the Obama Order.

Other changes in the new list of officials reflect the establishment of new organizations (DHS, ODNI), and the absorption or elimination of others (FEMA, USIA, ACDA).  Since 2003, the Vice President has been named as a classification authority in the body of the executive order on classification, and that remains the case today, so his designation is not included in the list of authorized officials (as it had been in the 1995 Clinton Order).  Bush Administration grants of classification authority to HHS, Agriculture, EPA, and OSTP are preserved in the Obama list.

Beyond that, a web of new requirements in the latest presidential orders seems likely to discourage freewheeling classification activity.  In a December 29 memo on implementation, the President directed all agency heads to review their existing delegations of classification authority, to limit them “to the minimum necessary,” and to report on the results of the review within 120 days.  In order to eliminate phantom or unidentified classifiers, any delegations of classification authority also must now be reported by name or position to the ISOO Director, the new Obama Executive Order states (sect. 1.3c5).

Most significant of all, new language in the Obama Executive Order 13526 directs that “All original classification authorities must receive training in proper classification (including the avoidance of over-classification)… at least once a calendar year.”  And should they fail to receive such training in a given year, they “shall have their classification authority suspended….” (section 1.3d).

Could it really be true that “all” original classifiers will have to receive annual classification training, or have their ability to classify suspended?  Will the President get such training?  The Director of National Intelligence?  The Director of the Information Security Oversight Office (ISOO), who is the one responsible for developing such training?

The President is a special case, said Mr. Bosanko, the ISOO Director.  But otherwise, “all means all.”

“Leadership at agencies starts at the top,” he said.  He pointed to section 5.4(a) of the new order which provides that agency heads “shall demonstrate personal commitment and commit senior management to the successful implementation of the program….”  “How can that be done,” Mr. Bosanko said, “if the rules do not apply to them?”

And “Yes,” he added, “[the classification training requirement] applies to me.  My staff has already reminded me.  I will be sitting down with them for a briefing at least annually.”

At the end of FY2008, there were a total of 4,109 original classification authorities in the executive branch, according to the most recent annual report (pdf) of the Information Security Oversight Office.

A bill introduced last month by Senators Russ Feingold and Sheldon Whitehouse would require the President to publish a notice in the Federal Register whenever he modifies or revokes a published Executive Order.  The bill, previously introduced in 2008, is intended to help “reverse the growth of secret law in the executive branch.”  It responds to the previous Administration’s claim that the President is not bound by Executive Orders and can depart from their terms at will, and without public or congressional notification.

Drought in California, Democracy in Hong Kong (CRS)

Noteworthy new Congressional Research Service reports obtained by Secrecy News include the following (all pdf).

“Military Service Records and Unit Histories: A Guide to Locating Sources,” December 16, 2009.

“California Drought: Hydrological and Regulatory Water Supply Issues,” December 7, 2009.

“Government Collection of Private Information: Background and Issues Related to the USA PATRTIOT Act Reauthorization,” December 9, 2009.

“Amendments to the Foreign Intelligence Surveillance Act Set to Expire February 28, 2010,” December 23, 2009.

“Homeland Security Department: FY2010 Appropriations,” December 14, 2009.

“Private Security Contractors in Iraq and Afghanistan: Legal Issues,” December 22, 2009.

“International Terrorism and Transnational Crime: Security Threats, U.S. Policy, and Considerations for Congress,” January 5, 2010.

“U.S. Public Diplomacy: Background and Current Issues,” December 18, 2009.

“Prospects for Democracy in Hong Kong: The 2012 Election Reforms,” December 10, 2009.

OSC Reports on Iran’s State-Run Television

Iran’s state-run television organization known as the IRIB is profiled in a new report (pdf) from the DNI Open Source Center.

The rather massive IRIB employs an estimated 46,000 persons, according to the OSC report, and has a reported budget of $900 million.  It offers a vast network of internal and external channels, which collectively seek to “strengthen the country’s cultural solidarity,” to promote “the majesty and supremacy of Islam,” and to support “the fulfillment of the Supreme Leader’s point of view.”

The unclassified OSC report has not been approved for public release, but a copy was obtained by Secrecy News.  See “Structure of Iran’s State-Run TV IRIB,” Open Source Center, December 16, 2009.

New Executive Order Expected to Curb Secrecy

For the first time, each executive branch agency that classifies information will be required to perform “a comprehensive review” of its internal classification guides to validate them and “to identify classified information that no longer requires protection and can be declassified.”  The new requirement is one of the most potentially significant features of an Executive Order on national security classification policy that was signed by President Obama last week.

There are more than two thousand agency classification guides currently in use and they constitute the detailed operating instructions of the classification system.  If the so-called Fundamental Classification Guidance Review (set forth in section 1.9 of the new Order) is faithfully implemented by the agencies, it should eliminate numerous obsolete classification requirements and effectively rewrite the “software” of government secrecy.

Other outstanding features of the new Executive Order 13526 include the establishment of a National Declassification Center to coordinate and streamline the declassification process (section 3.7);  the adoption of the principle that “No information may remain classified indefinitely” (section 1.5d);  and the elimination of an intelligence community veto of declassification decisions made by the Interagency Security Classification Appeals Panel. This veto authority had been granted by the Bush Administration in 2003.

But the Order contains many dozens of other changes in language that are subtle but important.  So, for example, section 3.1g states that “no information may be excluded from declassification… based solely on the type of document or record in which it is found.”  What this simple formulation does (or is expected to do) is to eliminate the permanent classification of the President’s Daily Brief (PDB), the daily intelligence compilation that is delivered to the President each morning.  The CIA has long argued that by virtue of being presented to the President, the information contained in PDBs is inherently and permanently classified.  Now it’s not.

Not all of the changes are in the direction of increased disclosure.  Section 4.3 authorizes the Attorney General, as well as the Secretary of Homeland Security, to establish highly secured Special Access Programs, an authority reserved in the previous Executive Order to the Secretaries of Defense, State, Energy and the then-Director of Central Intelligence.  Sections 1.8c and 3.5g exclude material submitted for prepublication review from classification challenges and mandatory declassification review.

Some of the changes suggest previously unsuspected problems or issues.  Section 4.1c states curiously that “An official or employee leaving agency service may not … direct that information be declassified in order to remove it from agency control.”  There may be a story behind that new provision, but I don’t know what it is.  Section 3.1h states for the first time that classified “artifacts” and other classified materials that are not in the form of records shall be declassified in the same way as classified records.

The detailed changes in the new Executive Order can best be discerned in a “red line” version of the Order which highlights the deletions and additions that have been made in the text.

The promise of transparency can easily backfire and engender cynicism if it turns out to be a mere pretense.  But in the development of the new Executive Order, the Obama Administration successfully avoided that pitfall, and then some.  To a degree previously unsurpassed not only in classification policy but in most other policy areas as well, the Administration both solicited and acted upon suggestions and recommendations from members of the public and public interest groups.

Members of the White House staff, the National Security Council staff, and the Information Security Oversight Office did more than go through the motions of receiving public input.  They sought it out and, in a surprising number of cases, incorporated it in the final Order.  The Fundamental Classification Guidance Review, the elimination of the intelligence community veto on declassification decisions, the establishment of a date certain for eliminating the backlog of 400 million pages of records awaiting declassification, a “drop dead” date to set a period of time after which classification must expire — all of these and several other provisions in the new Order are traceable to recommendations from the public.  (The National Declassification Center was originally proposed by the 1997 Moynihan Commission report.)

Naturally, not all of the public recommendations were accepted.  A proposal that the Declassification Center be given its own authority to declassify historical records without the concurrence of the originating agencies was rejected as “a bridge too far,” said one official.  So was a recommendation to strengthen internal oversight by granting the Director of the Information Security Oversight Office the unilateral authority to declassify erroneously classified records government-wide.  A proposal for a series of pilot projects to help develop further innovations in information security and disclosure was not acted on.  And quite a few other suggestions from the public were set aside.

Nor was the Administration’s interaction with members of the public perfectly frictionless.  A request by public interest groups for access to an interim draft of the Executive Order was specifically rejected by the National Security Advisor in a September 2 letter (pdf).  But after the draft leaked into the public domain later that month, an NSC official said, the resulting public comments “proved to be tremendously useful in defending and refining” the provisions of the Order.

Beyond the unparalleled degree of public participation in its development, the new Executive Order is the only such Order to be issued in the first year of a Presidential Administration.  (The last two Presidents issued their classification Orders in their third year in office).  And it is the first to be completed in a comparatively brief seven months.  It is also the first Order to be accompanied by a personal Memorandum from the President affirming the terms of the Order, and going beyond them to impose several additional requirements.  Not only that, but the President affirmed his instruction to the National Security Advisor to pursue “a more fundamental transformation of the security classification system” that goes well beyond the latest adjustments.

There are still many ways that the implementation of the new Executive Order can be frustrated, defeated or undermined, although public reporting requirements and public vigilance should help to keep it on track.  But it is clear that this Administration is now invested in the process of secrecy reform.  “There’s a real potential for us to be criticized if the reforms we’re advocating don’t pan out,” one White House official told Secrecy News.

The Dec 2009 Declass Deadline: What Didn’t Happen

There has been almost no criticism of the new Obama Executive Order on national security classification, which itself is kind of troubling.

For a full-throated denunciation, one has to turn to the outer periphery of Newsmax.com, which argues that declassification of historical editions of the President’s Daily Brief “will render impotent one of the intelligence community’s most vital tools.” (“Obama Imperils Intel Briefings,” by Theodore Kettle, Newsmax.com, January 3.)

A more cogent complaint, put forward by PRI’s show The Takeaway on December 22, is that creation of a National Declassification Center “will actually delay the declassification of 400 million pages of Cold War-era documents,” because these were already subject to a December 31, 2009 deadline, which has now been eliminated.

As previously reported (“New Executive Order Aims to Avoid Declass Deadline,” Secrecy News, November 23, 2009, and by the Boston Globe, Nov. 29, and the Associated Press, Dec. 20), there was a December 31 deadline for automatic declassification of historical records that required referral to more than one agency, and this deadline created some urgency for completion of the new Executive Order, which superseded it.

But even if the deadline had come into effect, officials told Secrecy News, the affected pages would still not have been released to the public.  They said this was so for several reasons.

First, no one knows where those pages are.  There are perhaps as many as 100 million pages (not 400 million) that have been referred from one agency to another for declassification review, but they are not systematically tracked and so they could not be systematically released.

Second, Congress has effectively barred bulk declassification and disclosure by means of the 1999 Kyl-Lott Amendment, which required the painstaking review or certification of all declassified records to ensure that they do not contain any inadvertently released nuclear weapons-related information.  (If Congress wanted to facilitate declassification of historical records, repeal of the Kyl-Lott Amendment would be a good place to start.)

Third, the National Archives lacks the capacity to process large volumes of declassified records for public release.  Even if fully declassified, the affected records would take years to process for disclosure to the public.

In short, the declassification program is seriously messed up, and it has been for many years.  The new National Declassification Center may help to straighten it out.  Significantly, the President ordered that the present backlog of 400 million pages shall not only be declassified over the next four years but also “shall be addressed in a manner that will permit public access to all declassified records.”

To make good on this commitment, the Obama Administration is said to be considering a significant increase in its request for declassification funding for FY 2011.