The Role of an Interagency Review Panel in Declassification Policy
One of the most pressing problems in the current classification/declassification system is the lack of coordination between federal agencies in making decisions about what government information is properly classified and what may be publicly released. Formal responsibility for overseeing agency compliance with the executive order on national security information policy rests with the Information Security Oversight Office (ISOO), which has a relatively small-staff and reports to the National Security Council.1 But although ISOO provides minimal direction through the issuance of regulations and annual reports, each agency currently gives its own interpretation to Executive Order 12356, the presidential directive on classification and declassification, and the implementing regulations that accompany it. Problems of overclassification and lengthy delays in the declassification process are exacerbated by cumbersome review procedures regarding interagency material--that is, the material of one agency that rests in the files of another agency. With no formal procedures for reaching a consensus on what classified interagency material can be declassified and released, each agency tends to act alone. This paper reviews past experiences with interagency review panels and presents recommendations for enhancing the coordination of a uniform and streamlined declassification policy.
During declassification review, use of the designation "Originating Agency's Determination Required" (OADR)--in place of a specific declassification date or event in original classification decisions--increased significantly during the last decade. The General Accounting Office estimated in 1992 that ninety-five percent of all records classified that year bore the stamp of OADR.2 Similarly, "equity" agreements between agencies that frequently exchange information dramatically extended agency authority over material which it did not create or possess but in which it had some interest. Such a patchwork of policies and authorities has increased costs, caused delays, and frustrated access to historically valuable information. For example, if a memorandum from the Office of the Secretary of Defense is in a Department of State file, the declassification of that file requires percussion from the Department of Defense. Because of OADR and "equity" policies, bulk declassification of older historical material has been impossible.
To help solve these and other related problems a formal system of interagency coordination is needed. Although precedents for this kind of cooperation do exist, there is currently no such system in place. Consequently, it is common for fifty-year-old records to remain classified because declassification would require dealing with a maze of procedural obstacles. In addition to the intricacies of the review process, there is currently no way to appeal an agency's decision to withhold portions of records from public release, aside from expensive and time-consuming Freedom of Information Act litigation. Under an earlier executive order on classification/declassification an independent, interagency panel functioned precisely to remedy such problems when they occurred. It is time that a similarly-constituted body be instituted in the reforming of the information security system.
The most successful example of an interagency panel charged with brokering classification and declassification disagreements among agencies was the Interagency classification Review Committee (ICRC) established by President Nixon in 1972 as part of Executive Order 11652. Activities of this committee, which met regularly between 1972 and 1978, illustrate that interagency coordination can help develop and apply declassification policy that is responsive to the needs of agencies, scholars, and the general public. Executive Order 11652 created a "continuing monitoring process" under the National Security Council (NSC) and the ICRC.3 The order gave the NSC ultimate authority over the security classification system and created the ICRC to "assist" in this task. The order mandated that the Committee "meet regularly and on a continuing basis" and "review and take action to ensure compliance" with the order. Specifically, E.O. 11652 directed the panel to "oversee Department actions to ensure compliance" with the directive, and empowered the committee to "take action on suggestions and complaints . . . with respect to the administration" of the order and "assure that appropriate action is taken on such suggestions and complaints."4 Thus, Committee responsibilities included both monitoring of compliance by various federal departments with the standards of the executive order and review of the overall functioning of the system so that any shortcomings could be detected and addressed.
Effective oversight and cooperation was built into the committee by its composition of high-level representatives from each of the federal departments responsible for the majority of national security classification actions. Agencies involved included the State Department, the Department of Defense, the Department of Justice, the Atomic Energy Commission, the Central Intelligence Agency, and the National Security Council. A chair appointed by the President oversaw the functioning of the committee.5
The unique position of the Interagency classification Review Committee as a coordinating panel with enforcement powers allowed it to play a significant coordinating role. Perhaps the most fundamental function of the committee was that of fine-tuning the implementation of Executive Order 11652, particularly on issues of declassification. In this respect, the committee interpreted the declassification policies set forth in the executive order for federal agencies and the general public. It also acted as a clearinghouse for suggestions on the improvement of the declassification system. In carrying out these tasks, the ICRC consistently stressed its commitment to openness.
The first chairman of the committee was John S. D. Eisenhower, the son of the former President and a retired Army officer. Eisenhowers appointment gave the committee heightened visibility as well as increased clout. In committee meetings when an agency representative resisted positions advocated by the majority, Eisenhower was known to say to that person something to the effect that "if you continue to adhere to this position, I will have to stop by and talk to Dick about this."6 The chairman having direct access to the President definitely gave the committee more influence than it would otherwise have had. Although Eisenhower served as chairman of the ICRC for only one year, he established a tone and procedures that were continued by the U.S. Archivist James B. Rhodes, who served as Acting Chairman after Eisenhower's departure.
An example of ICRCs influence is the manner in which it handled the issue of fees. On several occasions agencies wanted to levy fees to offset the cost of searching for, reviewing, and copying classified documents. The regular meetings of the ICRC and high levy agency representatives facilitated work toward a consensus on setting fees that did not impede the declassification and release of information. This was accomplished because the committee provided a forum in which to discuss the particular perspectives of the agencies and the legal issues involved.7
As required by its mandate under the executive order, the committee continued to strive for genuine openness on other information security issues. At a meeting in May, 1973, the panel discusses agency authority to exempt large amounts of information from the General Declassification Schedule established by Executive Order 11652. James B. Rhoads, who became acting chairman of the ICRC in 1993 and continued in that position until the committee was disbanded, set the tone of this meeting by stating at the outset that "our objective is to devise a system or evolve our present system in a way that is conducive to the minimal exercise of exemption authority." After input from the various agency representatives on the particulars of exempting documents from automatic declassification, the chairman appointed a working group to study the use of exemption authority and "to make recommendations on the most effective way of keeping to a minimum the amount of material exempted from the General Declassification Schedule." The goal of the working group was a recommendation to the President on amending the executive order itself to close this potential loophole.8
On another occasion standard ICRC oversight procedures resulted in a change in the implementing regulations for the executive order. In a regular survey of agency statistics on implementation, the committee noticed a surge in instances of "classification abuses." The committee discussed at length the matter of "abuses" and the ramifications for both the "abuser" who was subject to reprimand and the extent of disclosure. After input from all sides, the panel concluded that a vague definition of "classification abuses" was largely responsible for the rise in "abuses." The members votes to distinguish in the implementing regulations between unnecessary classification and intentional overclassification.9
Another task of the Interagency classification Review Committee central to its coordination and oversight of declassification policy was its service as an appeals panel. The Committee heard and decided appeals when an originating federal agency refuses a researchers request to declassify captain documents. The ICRC assumes this function on the basis of specific language in Executive Order 11652. As noted earlier, the order gave the Committee's parent agency, the NSC, overall authority for implementing the order but also gave the Committee itself authority to "take action on suggestions and complaints from persons within and without the government with respect to the administration" of the order.10
On several occasions the ICRC used its authority as an appeals panel to reverse agency withholding decisions. At its January, 1973 meeting, for instance, the committee considered the request of a researcher for the declassification of several Joint Chiefs of Staff documents from 1950. Although the Atomic Energy Commission representative pointed out that he "did not foresee any appreciable negative impact" from the release of twenty-two-year-old documents, both the NSC and the Department of Defense representatives opposed releasing the information on the grounds that such action could damage content foreign relations. Despite such objections from the originating agencies, the panel voted to declassify the documents. At the same session, the committee overruled an NSC withholding decision, with the NSC representative casting the lone vote for continued classification.11
When the committee voted to uphold an agency's decision to continue classification, it made sure it was thoroughly informed as to the reasons for continuing classification. On one occasion, an additional representative of the Central Intelligence Agency appeared at the ICRC meeting to present sanitized versions of requested CIA material that was then on appeal. Although the committee eventually voted to release the CIA documents in sanitized form, the representative found himself "questioned closely" on the criteria cited by the CIA for the continued classification of the "deleted portions" of the documents. He was also "asked to give a detailed explanation for the CIA's decision regarding [the] documents and to give an estimate of the impact that disclosure of [the] material could have on national security."12 Such an appeals mechanism therefore increased accountability within the information security system by requiring substantive justification for continued classification.
During its lifespan the ICRC facilitated declassification with other steps that could have been taken only by an interagency group. For example, the committee oversaw a Government initiated project in which the Department of Defense, the State Department, and the CIA worked together to collect and sort, for declassification and release, historical records on particular post-World War II international crises.13 Similarly, in its first years the ICRC formed a Computer Working Group to coordinate implementation of a government-wide data index for classified material. The index was to "provide a tool for the agencies and the ICRC to monitor the classification of documents and to ensure that such material is being declassified at the earliest possible time." The data index, as a systematic means of tracking classified information in a uniform manner throughout the federal government, never emerged in workable form. Several agencies cited the prohibitive costs involved as grounds for their opposition.14 The point here, however, is not to advocate a database as a tool for declassification, but to note that the ICRC provided a mechanism for formal coordination. Its success was all the more impressive given the fact that it never had adequate institutional support, staff; or resources to pursue the significant responsibilities with which it was charged under the order.15
This vital activity terminated under the Carter and Reagan administrations. Beginning in 1978 with President Carter's Executive Order 12065, the general oversight and reporting functions of the ICRC were transferred to the director of the newly created Information Security Oversight Office (ISOO).16 ISOO soon began to use its small staff and modest resources solely to report classification statistics, to prepare an annual report, and to conduct occasionally on sight inspections at specific agencies.
As part of the shifting of function, the Carter order directed ISOO to "consider and take action on complaints and suggestions from persons within or outside the Government with respect to the administration of the information security program, including appeals from decisions on declassification requests."17 There was little time available, however, to consider and implement suggestions. The Carter order also established an "Interagency Information Security Committee," composed of representatives from the same agencies that had representation on the ICRC, with the addition of the Treasury Department. However, the committee had no authority and was not required to meet regularly. The order's language only directed that the panel advise the chairman, who was the ISOO Director, on implementation of the order.18
These kind of changes escalated after President Reagan issued Executive Order 12356, which went into effect in June, 1982. The Reagan order eliminated both the interagency advisory panel and the language that had given the ISOO Director authority to hear appeals on declassification requests.19
The Clinton administration's draft executive order on national security information attempts to restore the kind of formal mechanism for interagency cooperation and declassification oversight that had been eliminated under the Carter and Reagan orders. The March 17, 1994 drag of the proposed executive order would create an "Interagency Security Classification Appeals Panel." As its name indicates, the panel would be responsible for returning to the classification/declassification system some of the most useful functions of the old ICRC, namely, hearing and deciding on "appeals by persons who have filed declassification challenges" and approving, denying, or amending agency exemptions from automatic declassification. The panel would be given direct authority to act as a high-level arbiter of declassification decisions. It could consider appeals "on actions in which the appellant has exhausted his or her administrative remedies within the responsible agency," as long as no action on the issue is panting in the courts. A decision by the panel could be appealed only by an agency head directly to the President.20
In addition to creating the Interagency Security Classification Appeals Panel, the Clinton March 1994 draft order would establish an "Information Security Policy Advisory Council," a body of non-governmental "interested persons" that would perform in an advisory capacity some of the independent oversight functions formerly administered by the ICRC. In particular, the Council would advise the President, the NSC, and ISOO on the policies established by the executive order, "including recommended changes to those policies." The Council would also work with individual agencies to prioritize records that need to be declassified and provide a public forum for discussion of controversial issues in federal government information policy.21
Although most recent executive orders on national security information did not mandate such a formal interagency panel, other means of facilitating interagency cooperation for declassification have evolved. Problems that had arisen in the compilation of the century-old Foreign Relations of the United States (FRUS) series provide a prime example of the need for formal interagency cooperation in declassification. Attempted resolutions of some of the issues involved in this particular endeavor have gone far to build interagency cooperation into the information security system.
In 1990 the State Department conducted an in-house review of the FRUS publication process after the integrity of the series was called into question because of deletion of information and the inaccuracies that arose from these omissions. The study found that Department historians and members of the Department's Advisory Committee on Historical Diplomatic Documentation, and with the necessary security clearances, often did not have adequate access to evidence documenting foreign policy formulation that was held by agencies other than the State Department. The study noted that expanded access to other government agencies "is central to an accurate and comprehensive documentary record."22 The State Department Reauthorization Act for 1992-93, therefore, attempted to address this problem by mandating that any arm of government involved in the formation of foreign policy must "cooperate with the Office of the Historian by providing full and complete access to the records pertinent to United States foreign policy decisions and actions" and develop procedures "to coordinate with the State Department's Office of the Historian in selecting records for possible inclusion in the FRUS series."23
Specifically, the Reauthorization Act required such agencies to allow "full access to the original unrevised records by such individuals holding appropriate security clearances as have been designated by the Historian as liaison" to that agency, including members of the Advisory Committee on Historical Diplomatic Documentation. Under the Act, each agency retained its own procedures for declassification review, but was compelled to provide timely, written justification to the State Department for any exemptions from the FRUS series that it may eventually require. The Act also gave both the State Department Historian and the Advisory Committee limited powers to reach an agreement with an agency on disclosure if either party determined that such exemptions would cause the FRUS volume to present "an inaccurate or incomplete historical record."24
Unfortunately, the integrity of the FRUS series is not guaranteed because the goal of full interagency cooperation remains unfulfilled. Despite enactment of the 1992-93 reauthorization legislation, the agencies outside the State Department that are most involved in formulating foreign policy have not yet fully cooperated with the Historian's Office and the Advisory Committee. Too often the deadlines stipulated in the legislation have gone unheeded. In its 1992 report to the Secretary of State, the Department's Advisory Committee cited "delays in declassification reviews by other agencies or governments" as one of the primary problems hampering its work.25 Not surprisingly, the committee also remarked to the team working on the Clinton draft order that its own experience "demonstrates the unquestioned necessity for a body with full authority and responsibility to monitor" the classification/declassification system.26
The most recent attempt to facilitate interagency cooperation on declassification also appeared in the form of legislation. Public Law 102-525, signed by President Bush in October 1992, established an "Assassination Records Review Board" to oversee the public release of all government records relating to the assassination of President John F. Kennedy. According to the law, the primary duty of this panel of non-governmental scholars and professionals is to "consider and render decisions on a determination by a Government office to seek to postpone the disclosure of assassination records."27 In practical terms, the board is to serve as a check on government agencies which are reluctant to declassify and disclose those assassination-related records in their possession which are no longer sensitive for national security reasons. To carry out this task, the law gives the Review Board significant power, including the authority to "direct Government offices to transmit to the Archivist assassination records as required" under the Act and to "obtain access to assassination records that have been identified and organized by a Government office." The President has the sole authority to overrule a decision of the Review Board regarding disclosure of a particular assassination record.28 Although the legislation became law in the fall of 1992, the Review Board members were not confirmed until the spring of 1994. Due to the delays in the nomination process the Board did not become functional until late 1994; however, its independence and government-wide authority could serve as a model for interagency oversight of a revised classification/declassification system.
Formal coordination among government agencies is required to reform the information security system. In the past, declassification policies in different agencies have conflicted with one another. This not only wastes time and resources, but also constrains access to information that is needed to understand the past and chart the future. Centralization in the process of interpreting and implementing a new executive order would streamline the entire system. This could be accomplished by an inter-agency panel with sufficient authority, staffing, and resources. The Clinton March, 1994 draft order moves in this direction by setting up an appeals panel that presumably would apply standardized criteria to contested declassification decisions. The draft order also would create a non-governmental council to help oversee the entire information security system. It is time for such cooperation among different branches of government and the wider public to replace the current patchwork of authorizes, policies, and interpretations that has heretofore guided the system.
Paper Four - Endnotes
Note from the Data Manager: Footnotes 1 - 21 for Paper Four were not available.