In July 2009, The Constitution Project’s (TCP) bipartisan Liberty and Security Committee published a report entitled Reining in Excessive Secrecy: Recommendations for Reform of the Classification and Controlled Unclassified Information Systems. This report included fifteen specific recommendations to the Executive Branch and three specific recommendations for Congress, all designed to reform the classification regime. In December 2009, President Obama issued Executive Order 13526, and while this Executive Order incorporated some of TCP’s recommendations, the majority were not adopted at all or were not implemented fully. Further, to date, none of TCP’s legislative proposals have been implemented. Therefore, in response to the Public Interest Declassification Board’s (PIDB) request for proposals for transforming the classification system, TCP is submitting its original recommendations, updated to reflect what progress has been made to date and what more remains to be done.
A. RECOMMENDATIONS TO THE EXECUTIVE BRANCH
Endorse Presumption of Openness
1. As TCP noted in Reining in Excessive Secrecy, the executive orders governing classification have been amended over time to increase secrecy, often counter to the goals of openness and accountability. Executive Order 13526 represents a departure from this trend, but did not go far enough. As such, the President should amend the executive order, pledging accountability in the classification process. The order should establish a new framework for designating information with a presumption in favor of openness that limits classification only to information that must be protected to avoid harm to national security, with clear standards and procedures for proper classification.
2. TCP applauds the insertion of Section 1.1(b) in Executive Order 13526, which states that if “significant doubt” exists as to whether information needs to be classified, it should not be classified. However, this provision alone does not ensure adequate safe guards against over-classification. The order should include an affirmative presumption in favor of lower level classifications, or declassification, such that decisionmakers resolve any doubts (not just “significant” doubts) by applying the lower classification level or no classification.
3. TCP previously recommended that then Section 1.1(c), which creates a presumption that foreign government information is classified, should be eliminated. This provision (now contained in Section 1.1(d)) is still unnecessary because such information is already subject to classification as one of the categories noted in Section 1.4.
4. TCP continues to urge adoption of its previous recommendation that the order should clarify that information “may” be classified if standards are met, but that the classifier has discretion. Although Section 1.1(a) clearly states that for original classifications, information “may be originally classified under the terms of this order only if all of the following conditions are met,” this is undermined by the descriptions of available classification levels which include the term “shall.” Specifically, in Section 1.2(a), which sets forth the available classification levels, each category (i.e. Top Secret, Secret, and Confidential) should state that it “applies to” the described information, rather than that it “shall be applied to” such information.
5. TCP previously recommended there be an explicit prohibition on classifying material that does not meet the definitions of Top Secret, Secret, and Confidential outlined in Section 1.2. To date, no such prohibition exists and TCP urges its creation.
Weigh Public Interest in Classification/Declassification Decisions
6. TCP urges that its prior recommendation to require consideration of the public interest before information is classified should be implemented.
7. TCP continues to recommend that the government should be required to weigh the public value of the information in declassification decisions. Specifically, Section 3.1(d) of EO 13526 should be amended to delete the current first sentence and alter the next sentence so that it reads: “Information may continue to be classified only if the need to protect such information outweighs the public interest in disclosure of the information.” Also, Section 3.5(c) should be revised so that the first sentence is expanded as follows: “Agencies conducting a mandatory review for declassification shall declassify information that no longer meets the standards for classification under this order, or where the public interest in disclosure outweighs the need to protect the information.” In the second sentence of this section, “authorized and warranted” should be changed to “required,” so that the sentence would read “They shall release this information unless withholding is otherwise required under applicable law.”
Aid Sharing of National Security Information
8. To ensure national security information may be shared among the necessary parties, TCP again urges the government to create clear and effective processes for sharing classified information.
Provide Accountability and Limits on Classification
9. The Executive Order should explicitly prohibit abuse of classification markings. To date, no such prohibition has been put into place.
10. TCP also previously recommended that the timeframes for automatic declassification be decreased. Like its predecessor order, Section 1.5(b) of EO 13526 presently states that “[i]f the original classification authority cannot determine an earlier specific date or event for declassification,” information shall be automatically declassified after 10 years, unless the sensitivity of the information requires longer classification, in which case it shall be automatically declassified after a period up to 25 years. The lower time limit of this automatic declassification range should be decreased from 10 years to 5 years, and the upper limit should be decreased from 25 years to 20 years.
11. The order should be amended to include more robust methods of systematization and improvement of the process for declassification of historical records and institute stricter standards for reclassification.
12. Contrary to TCP’s recommendation, EO 13526 did not decrease the time period for automatic declassification under Section 3.3 from 25 years down to 20 years, and TCP urges that this change should still be made. However, the order did strengthen the requirements for seeking an extension of this time period. TCP had recommended that Section 3.3(b) be amended so that an extension of the classification time period beyond 25 years should not be available if release of the information simply “could be expected to” result in one of various listed harmful results. TCP welcomes the revised standard, which permits an extension only when release of the information “should clearly and demonstrably be expected to” lead to the listed harmful results.
13. The existing classification order provides for “derivative classification” by personnel who are not required to possess original classification authority to “carry forward” the original classifications into summaries, discussions, and other documents that are created from or rely upon such classified material. While TCP is gratified that EO 13526 added Section 2.1(d), which imposes training requirements on personnel with derivative classification authority, since derivative classifications may be made by personnel who have less training and authority than original classifiers, the order should require greater oversight of the derivative classification process. Specifically, the order should require that derivative classifications must be reviewed and approved by a person with original classification authority within 5 years of the derivative classification marking in order to retain their classification.
14. TCP applauds EO 13526’s establishment of a Fundamental Classification Guidance Review. Nonetheless, despite this first step, TCP urges that the order should be amended to establish new mechanisms for oversight of the classification system to guarantee accountability and transparency. The order should be revised to strengthen the role of the Director of the Information Security Oversight Office (ISOO) by replacing “have the authority to” with “regularly” in the first sentence of Section 5.2(b)(4), so that that provision would read “regularly conduct on-site reviews of each agency’s program established under this order, and require of each agency those reports, information, and other cooperation that may be necessary to fulfill its responsibilities.” The order also should require regular audits and reporting by the Inspectors General (IGs) of each federal agency that maintains classified materials, or by some other external oversight authority.
Create Agency-Level Review of Classification
15. As noted above, TCP is gratified that EO 13526 established a Fundamental Classification Guidance Review. However, the current EO does not include sufficient public oversight. The review should be public and should include a public notice and comment period and publication in the Federal Register. The review should also have the explicit objective of reducing national security secrecy to the essential minimum and declassifying all information that has been classified without a valid national security justification, consistent with the declassification standards laid out above.
B. RECOMMENDATIONS TO CONGRESS
1. Provide Accountability and Limits on Classification by Passing Legislation to Limit Classification
It is vital that all branches of government come together to address the problems of over-classification and secrecy. The President should work with Congress to ensure passage of legislation designed to reduce over-classification.
2. Strengthen Congressional Oversight of the Classification Process
Congress should be rigorous in its oversight of the classification processes at each agency and at all levels of government. It should pass legislation designed to reduce over-classification.
3. Pass an Omnibus Historical Records Act
To increase government openness, Congress should pass an omnibus Historical Records Act that would accelerate declassification of historical records. This would ensure that historically significant information is declassified in a timely manner. The HRA would provide government transparency by decreasing unnecessary secrecy as well as increase public access to historical records.