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Secrecy & Government Bulletin

Issue Number 74
October 1998

Congress Suspends Automatic Declassification

In a major blow to secrecy reform, Congress has enacted legislation in the 1999 Defense Authorization Act (sec. 3161) that will halt automatic declassification throughout the entire government for at least several months, while a plan is developed "to prevent the inadvertent release of records containing Restricted Data or Formerly Restricted Data," i.e. classified nuclear weapons information.

Automatic declassification was mandated by President Clinton's executive order 12958 to help reduce the enormous backlog of 25 year old documents awaiting declassification. The idea was that many documents could be declassified with little or no review, based on their age and subject matter. "Large-scale declassification won't be dependent on the availability of individuals to conduct a line-by-line review," the President pledged in 1995. "Rather, we will automatically declassify hundreds of millions of pages of information that were classified in the past 50 years." It was a promise substantially fulfilled, as some 400 million pages of documents were declassified in the last two years.

But now, under pressure from Congress, this unprecedented declassification program will come to a halt, although more than a billion pages remain to be processed.

Several Senators, led by Sen. Jon Kyl (R-Arizona), argued that some classified nuclear weapons information "had been improperly released and that much more is in danger of improper release in the near future."

"It appears that, in a frenzied attempt to meet the [April 2000] deadline mandated by executive order 12958, officials are not taking proper care to ensure that Restricted Data and Formerly Restricted Data that may be commingled with other classified information is not being improperly released or scheduled for automatic declassification," wrote Senator Kyl, along with Senators Shelby and Smith, in a July 28 letter to National Security Adviser Samuel R. Berger.

The underlying facts of the matter are difficult to ascertain. "We saw some ‘holy shit' documents that should not have been released," said a Senate staffer who is not ordinarily given to exaggeration, but who is not a physicist or a weapons designer either.

"Highly sensitive [nuclear weapons information] has been found embedded in documents in file series subject to declassification and released to the public under Executive Order 12958," wrote Kenneth E. Baker of the Department of Energy on July 24. "The problem is aggravated by those who delight in revealing the classification errors of the Government in nuclear weapons technology and rapidly spreading their findings on the Internet."

Last summer, the Senate approved without discussion or debate an amendment sponsored by Senator Kyl that would have prohibited all automatic declassification by requiring "visual inspection" of each and every page to ensure that it contained no nuclear weapons information.

The National Archives "vehemently" opposed that provision. "Such a requirement would be more retrogressive than has ever been practiced since declassification efforts began in earnest in 1972," wrote National Archivist John W. Carlin on July 14.

"The majority of records series do not contain RD or FRD and it would be a waste of time and resources to screen these files for the possible misfiled document." Instead, Carlin called for a risk assessment approach involving a survey to identify those records series containing potentially exempt information, which would then be the only ones subject to page by page review.

The original Kyl amendment was modified accordingly in the final Defense Authorization Act for 1999. Significantly, the final language recognizes the fact that there are government records that are "highly unlikely to contain Restricted Data or Formerly Restricted Data."

But the new legislation nevertheless suspends all automatic declassification activity-- even of such "highly unlikely" record groups-- until two months after the Department of Energy and the National Archives develop a detailed plan to explain how they are protecting against inadvertent release of nuclear weapons information.

No one is willing to say how long it may take to complete the required plan, although National Security Adviser Berger has been asked to establish a deadline. A "straw man" draft has been prepared, according to an Energy Department official, but "it is a very complicated matter and there will be many coordinations required within agencies and between agencies before it comes into being." By DOE's reckoning there are supposedly 67 different agencies that may have Restricted Data in their records.

"We have a lot of work to do to make this thing work," agreed Steven Garfinkel of the Information Security Oversight Office. Officials must develop new procedures for identifying those record groups that are to be reviewed in detail; define the roles of the respective agencies; and confront the unavoidable resource challenges. "Some agencies may see this as an opportunity to reopen the debate over the executive order," warned Mr. Garfinkel.

The congressional report on the new requirement went out of its way to state that "The conferees do not intend this provision to slow down much needed efforts to reduce the amount of classified material maintained in federal archives." But as a consequence of the congressional action, those "much needed efforts" will be crippled for months-- if not longer.

White House Hopes to Prevent "Balancing Test"

The outstanding piece of pending legislation on secrecy policy is the Government Secrecy Reform Act of 1998. The outstanding feature of that legislation, from a public access point of view, is a "balancing test" that would require classifiers to balance the potential benefits of disclosure against the perceived need for secrecy. It would also tend to strengthen judicial oversight of classification decisions.

For precisely that reason, the White House is now pressing Congress to eliminate the balancing test, arguing that it would "encourage judicial intrusion on the President's constitutional authority."

The Government Secrecy Reform Act was introduced last year upon the recommendation of the Commission on Protecting and Reducing Government Secrecy, chaired by Senator Daniel P. Moynihan. To a large extent, the original bill merely duplicated the provisions of President Clinton's executive order 12958. One provision that advanced secrecy policy beyond the status quo was a proposed requirement that classifiers "weigh the benefit from public disclosure of the information against the need for protection of the information under the classification system."

"We need to balance the possibility of harm to national security against the public's right to know what the Government is doing, or not doing," Senator Moynihan said last year.

The legislation was the subject of a hearing before the Senate Governmental Affairs Committee last March 25, in which Administration witnesses criticized the balancing test, among other things, because it "would serve to encourage ... judicial second-guessing" of classification decisions.

Committee Chairman Senator Fred Thompson led an unusually engaging inquiry, which was all the more impressive because its outcome was not pre-determined. Chairman Thompson interrogated critics and supporters of the balancing test, seeking an elusive common ground. In the end, his Committee not only preserved the balancing test, which it called "the most significant change from historical and current practice," but also strengthened it by detailing the various considerations that are to be "balanced."

"The introduction to classification and declassification processing of a balancing test is vital," the Committee concluded in its report on the bill.

Despite some equivocation, the Committee report also made it clear that "proper application of the public interest/ national security balancing test would be within the scope of judicial review for FOIA requests for classified information."

The idea that some old judge might presume to render an opinion about executive branch classification decisions is repugnant to the White House. Although judges are already empowered to ensure that classified information that has been withheld from an FOIA requester is "properly classified," they don't use that authority much and the White House and Justice Department want to make sure it stays that way.

"The bill must be modified to make it unambiguously clear that this legislation confers no new rights of judicial review," wrote National Security Adviser Samuel R. Berger in a September 17 letter to Congressman Lee Hamilton, a co-sponsor of the bill in the House.

"We have concluded that the balancing test must be eliminated in order to protect essential Presidential authority and to ensure that the legislation introduces no new rights of judicial review," Mr. Berger wrote.

But Rep. Hamilton would not have any of this. In an October 2 reply to a joint letter in defense of the balancing test from the Center for National Security Studies, the National Security Archive, and FAS, Mr. Hamilton wrote: "I agree with you. I think it is a serious mistake to accept the elimination of the public-interest balancing test as the price for Administration support of the bill. To agree with the Administration's proposed changes would amount to gutting the bill. It would amount to a codification of existing procedures in the Executive branch, and a rejection of the work of the Secrecy Commission.... I cannot accept a revised bill that does not change the unacceptable status quo on classification and declassification."

ISOO Director Steven Garfinkel said that supporters and opponents of a balancing test had both overestimated its significance, and thereby "missed an opportunity" to achieve a consensus on legislation that would have reinforced the executive order and enhanced internal oversight.

At any rate, Administration opposition effectively blocked any further progress on the legislation in the pitiful last days of the 105th Congress. "It's dead for now," a Senate said. But another staffer remained optimistic about the possibility of preserving the balancing test through negotiations with the White House. "I think we can get something done," he said, "and I think we can do it next year."

FAS Sues CIA for Disclosure of 1999 Budget Request

The Federation of American Scientists (FAS) filed suit August 31 under the Freedom of Information Act to compel the Central Intelligence Agency to disclose the amount of the total budget request for intelligence for fiscal year 1999.

Last year, an FAS lawsuit led to the unprecedented disclosure of the total intelligence appropriation for FY 97 ($26.6 billion) and for FY 98 ($26.7 billion). In the present case, as before, FAS is expertly represented by Kate Martin of the Center for National Security Studies.

The idea that the intelligence budget request should be declassified and disclosed is not only a matter of common sense, but is also well within the mainstream of expert opinion. The 1996 Commission on the Roles and Capabilities of the US Intelligence Community (the "Aspin- Brown Commission") unanimously recommended that both the total budget appropriation and the amount requested for the following year should be published annually.

Although it would raise no serious question of a risk to national security, disclosure of the budget request might be awkward for the CIA in the short term. After declassifying the budget total last year, Director of Central Intelligence George Tenet said, in effect, this far and no further. Releasing yet another category of budget information could be difficult, especially when Congressional leaders oppose all public awareness of intelligence spending.

From another point of view, however, further disclosure might actually serve the institutional interests of the intelligence agencies since it would allow them and their supporters to highlight the reductions in intelligence spending that have occurred over recent years, and to argue that Congress has improperly cut funding below what the President had requested.

The same logic would favor the disclosure of individual agency budgets, and especially that of the CIA, which is concealed in the Defense Department budget (in a probable violation of the Constitution). In the current configuration, the CIA budget is essentially unprotected from the harsh whims of congressional defense appropriators. A May 20, 1998 letter from FAS President Jeremy J. Stone to DCI Tenet, which has gone unanswered, suggested that removing CIA from the defense budget might serve constitutional as well bureaucratic interests. "Would not the Agency prefer to stand on its own?" Stone asked.

Meanwhile, in a pro forma response to the latest FAS lawsuit on October 1, five named attorneys from the CIA and Justice Department pathetically asked "that this action be dismissed with prejudice."

In a related request to the CIA, FAS asked for disclosure of the updated intelligence budget total for 1998, which was increased above the previously disclosed $26.7 billion by a supplemental appropriation earlier this year. Although President Clinton has stated that disclosure of the budget total would serve to "inform the public," CIA still has a different view. In weighing whether the FAS request warranted a waiver of fees, CIA Information and Privacy Coordinator Lee S. Strickland opined that "Release of the information you have requested would not be likely to contribute significantly to public understanding of the operations and activities of the United States Government."

Assassination Records Review Board Issues Final Report

The Assassination Records Review Board, established by law in 1992, closed up shop September 30 after issuing a Final Report detailing its successful efforts to declassify tens of thousands of documents relating to the assassination of President Kennedy.

The Board repeatedly clashed with government agencies over the disclosure of particular records, and frequently overruled them, demonstrating the possibility of independent review and the utility of independent declassification authority. "Agency reviewers will note that the Republic has not collapsed... because of Review Board actions," the Report stated hopefully, or naively.

The Report concludes with several recommendations "to further reform the process of classification and declassification of federal documents," which would merit consideration in a sober political environment. A copy of the Report is available at http://www.fas.org/sgp/advisory/arrb98/index.html.

Secrecy & Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists.

The FAS Project on Government Secrecy is supported by a grant from the John S. and James L. Knight Foundation.

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