SECURITY CLASSIFICATION IN A POST 9/11 ENVIRONMENT
(EXECUTIVE ORDER 12958 AS AMENDED)Remarks of J. William Leonard
Director, Information Security Oversight Office (ISOO)
American Historical Association Panel
January 9, 2004
On March 25, 2003, the President signed Executive Order 13292, further amending Executive Order 12958 on Classified National Security Information, originally promulgated in 1995. The principal purpose of the amendment was to provide agencies a then additional 3.5 years to address the remaining backlog of unreviewed 25-year-old classified records of permanent historical value prior to the onset of automatic declassification. The other changes were recommended by a broad consensus of interagency professionals in classification and declassification. They reflect 7 years of experience in implementing E.O. 12958, as well as new priorities resulting from the events of 9/11.
What is most notable about the new amendment is what does not change. The revision had left the classification/declassification regime originally established in 1995 largely intact. It has had an exceedingly limited impact on the way in which Government officials classify or declassify information. For example, with one very narrow exception, information that was classifiable the day after the President signed the amendment to the Executive order was similarly classifiable the day before. For all practicable purposes, the new amendment simply made more explicit that which was already implicit in the original E.O. 12958 framework.
What I consider to be the most significant accomplishment of this amendment is that it virtually institutionalizes automatic declassification as an essential element of the classification process. Furthermore, with the promulgation by my office of the revised implementing directive to the Order, for the first time we have a clear roadmap with respect to how the automatic declassification program will be fully implemented executive branch-wide. Furthermore, we have explicit metrics that will allow us to measure our success in achieving the President's direction to wholly implement the automatic declassification program by December 31, 2006.
For classifiers, the most notable change has been a simplification of the process and a resulting change in marking requirements. For those involved in the declassification process, in addition to providing more time to complete the review of 25-year-old records, the revision gives greater clarity to what records are subject to automatic declassification and under what conditions.
The following is a synopsis of the most significant changes included in the amendment:
- Deadline for Automatic Declassification Extended. The major innovation of E.O. 12958 was the introduction of automatic declassification of non-exempted information after 25 years, whether or not it had been reviewed for release. This provision was intended to force agencies to meet their obligation to conduct a systematic review for release of information at 25 years. As such, the original order was very successful in that it led to the declassification of some one billion pages of older historical records. The new amendment commits agencies to finish reviewing the backlog of classified records more than 25 years old, variously estimated at 400,000,000 pages, by the end of 2006 (Sec. 3.3(a)).
- Clarification of Documents Subject to Automatic Declassification. Before the current amendment, the language of E.O. 12958 was unclear as to what 25-year-old documents that had not been explicitly exempted from release were subject to declassification and under what circumstances. Moreover, even in blocks of retired records spanning a period of years, the language suggested that older documents would become automatically declassified before the file was subject to review.A number of changes have been made that clarify the question of what documents are automatically declassified at 25 years:
- records in a file block shall not be automatically declassified until the most recent record is 25 years old (Sec 3.3(e)(1));
- an additional five years is allowed for difficult to review records such as audio and video tapes (Sec. 3.3(e)(2));
- an additional three years is allowed for the release of records transferred or referred from another agency (Sec. 3.3(e)(3));
- an additional three years is allowed for newly discovered records (Sec.3.3(e)(4));
- Protecting Foreign Government Information. The amendment to E.O. 12958 contains the presumption that the unauthorized release of foreign government information exchanged in confidence will cause damage to the national security (Sec 1.1(c)). The practical consequence of this addition is limited since the original order contained such broad discretion in this area that an original classifier had the authority to classify such information all along. More importantly, the amendment makes it explicit that for foreign government information to be exempt from automatic declassification, the same standard as other information concerning foreign and diplomatic relations of the United States and a foreign government will be applied. Specifically, serious and demonstrable "impairment" or "undermining" of these relations or activities must be shown in order for the information to be exempted (Sec 3.3(b)(6)).
- Categories of Classifiable Information Clarified. Additional categories of information, specifically defense against transnational terrorism, infrastructures, and protection services, were explicitly spelled out as included in those that were eligible for classification. "Weapons of mass destruction" was added as a separate category. Arguably, all such information was already covered by the existing order (Sec 1.4 (e) (g) & (h)).
- Simplifying the Scheme. E.O. 12958 had been considered unduly complicated to administer because of separate criteria for original classification for up to ten years, for original classification from 10 to 25 years, and for extending classification beyond 25 years. To correct this, the separate set of criteria for withholding information between 10 and 25 years from date of origin has been eliminated. While the revised language maintains ten years as the norm for most original classification actions, there is now one set of criteria for classification up to 25 years (Sec. 1.4) and another for withholding beyond 25 years (Sec. 3.3(b)).
- Reclassification of Properly Released Material. As originally issued, E.O. 12958 prohibited the reclassification of information after it had been released to the public under proper authority and prohibited it entirely for documents more than 25 years old. This amendment restores the ability of the predecessor E.O. to reclassify such information and drops the prohibition on 25-year-old information, but only under "the personal authority of the agency head or deputy agency head" and only if the material may be "reasonably recovered." This change should have little impact; it was virtually unused when previously available, and my office will closely monitor its use. In fact, to date, we have yet to be notified by any agency that it has made use of this provision (Sec 1.7(c) & (d)).
- Continuing Ability to Exempt File Series. When E.O. 12958 was originally issued, it required that all record file series that were to be exempted from automatic declassification had to be declared to the President before the order went into effect. This has been changed so that an agency may now notify the President at any time of file series of records that qualify under the specific standards for exemption. This allows agencies that did not exist in 1995, or that did not have 25-year-old records at that time, to incorporate this provision into their declassification programs (Sec 3.3(c)).
- Authority of Director of Central Intelligence (DCI) Recognized. While intelligence sources and methods information will remain subject to the jurisdiction of Interagency Security Classification Appeals Panel (ISCAP), the amendment recognizes the special authority and responsibility of the DCI to protect such information. As such, this revision does authorize the DCI to veto ISCAP release conclusions, but only after full consideration by ISCAP. Furthermore, a decision by the DCI to bar release can still be appealed to the President by any member of ISCAP (Sec. 5.3(f)).
All of these provisions have been incorporated into a revised implementing directive for the Executive Order recently promulgated by my office. This directive contains a clear roadmap as to how the automatic declassification program will be implemented within the executive branch, along with explicit metrics which will allow us to know when we have fully implemented the program. The roadmap ensures the continued integrity of the classification system by promoting the removal from the system of safeguards of information that clearly no longer meets the standards for classification. Through historians and researchers such as you, it also contributes to an informed American citizenry, an essential element of our unique form of Government, which derives its just powers from the consent of the people.
In furtherance of implementing the Order, every executive branch agency has been required to develop an updated declassification plan. In this plan, agencies provide details as to how they plan to fully implement the automatic declassification program; i.e. how they plan to appropriately declassify, exempt, refer or delay by December 31, 2006, all agency classified records that have permanent historical value and that are more than 25 years old. Collectively, the above four courses of action constitute the road to successful implementation of the automatic declassification program.
The first course of action, outright declassification, is rather straightforward. Executive branch agencies have been reviewing many of their classified holdings and, as I indicated earlier, since initial implementation of E.O. 12958, have declassified well over a billion pages of previously withheld material. They have a little less than three years to complete this process for 25-year-old or older textual classified records. By December 31, 2006, all such records belonging to an agency shall become automatically declassified unless they have been appropriately exempted in accordance with the provisions of the Order, or referred to another agency if the information was originated by or otherwise affects the interests or activities of that other agency. It should be noted some agencies have already indicated that they will not be reviewing some of their material and instead will allow it to become automatically declassified on the appropriate date.
The second action course of action, exemption, is also rather straightforward. A basic precept of E.O. 12958 is that as a general rule, agencies have the unilateral authority to classify information only for a period of up to 25 years. Agencies can exempt from automatic declassification certain information that satisfies specific, more stringent standards, but only with the approval of the Interagency Security Classification Appeals Panel (ISCAP). They can also exempt from review for automatic declassification purposes certain file series that almost invariably contain information eligible for exemption, but only with the approval of the President. In both cases, the agency must not only have explicit authorization from either the President of the ISCAP, but must also designate a specific date or event for the eventual declassification of the information.
Appropriate referral to another agency is the third acceptable course of action for 25-year-old or older classified information. Agencies whose records contain information that affect the interests or activities of another agency cannot subject those records to automatic declassification without first referring the record to the other agency for review. However, agencies are obligated to identify such records prior to the onset of automatic declassification. Further, they are obligated to refer such records prior to the 25-year date and follow-up if they do not receive acknowledgement of referral from the other agency. The receiving agency then has up to an additional three years to review the records and either declassify or exempt as appropriate. If the information is not reviewed, it becomes automatically declassified no later than 28 years after origin. That means textual information currently 25-years-old or older subject to referral will be eligible for automatic declassification on December 31, 2009.
Fourthly, the amendment to the Executive order identified a number of instances in which the onset of automatic declassification can legitimately be delayed. In addition to cases involving referral to another agency, agencies can delay the onset of automatic declassification for up to an additional five years for special media such as microforms, motion pictures, videotapes, audiotapes, or comparable media. Thus, such special media records belonging to an agency that are 25-years-old or older will become automatically declassified on December 31, 2011, unless otherwise exempted. Such 25-year-old or older special media referred to another agency will be subject to automatic declassification by December 31, 2016, unless otherwise exempted.
Finally, automatic declassification can also be appropriately delayed for information contained in an integral file block. Such information shall be subject to automatic declassification on December 31st of the year that is 25 years from the date of the most recent record within the file block. So, for example, classified information in Presidential Libraries will be subject to automatic declassification 25 years from the end of each four-year administration.
While it is recognized that not all information becomes declassified precisely at the 25-year mark, this roadmap is, nonetheless, both predictable and executable - two key elements for success. Also, it helps ensure releases of information in a more coherent and contextual manner; for example, with records of a single Presidential administration being declassified all at once rather than piecemeal as a function of the calendar.
That said, I do not underestimate the challenges confronting agencies in meeting this suspense set by the President. Anyone who has followed the annual reports issued by ISOO will readily note that as of late, declassification activity in terms of both volume and resources is down from prior years. While this may be understandable in times of war when many agencies have to shift scarce resources to meet new and evolving threats, effective declassification is an essential element of an effective classification system. We cannot depend upon that system to protect today's sensitive secrets unless we regularly purge it of yesterday's secrets that no longer require protection in the interest of national security. Allowing such material to remain classified, in addition to contributing to an incomplete or distorted view of our history, also can have a corrosive effect on the efficacy of the classification system in general. In the final analysis, whether it is as current as today or 25 years old, what protects truly sensitive information from unauthorized disclosure is not the security markings on a document; rather it is the people who deal with the information and their belief in the integrity of those markings. To allow information that can no longer cause damage to national security to remain in the classification system, places all classified information at needless increased risk.
In this vein, I am the first to recognize that the devotion of additional resources to this challenge is not necessarily the most effective response. Rather, interagency process improvements, especially in the areas of joint training, increased empowerment of reviewers, and increased delegation of authority between agencies can go a long way to fulfilling the President's direction to achieve complete implementation of automatic declassification by December 31, 2006.