FAS | Government Secrecy | News ||| Index | Search | Join FAS

Deputy Secretary of Defense
1010 Defense Pentagon
Washington, DC 20301-1010

The Honorable Jacob J. Lew
Office of Management and Budget
Old Executive Office Building
Washington, D.C. 20530

Dear Mr. Lew:

I am writing in response to your request for the Department of Defense's views on S.22 -- the Government Secrecy Reform Act. As you know, on numerous occasions during the previous Congress, DoD expressed to OMB its serious objections to a similar bill -- S.712. Following reintroduction of the bill in January, we again solicited the opinion of our security officials, records managers, and intelligence components on this legislation. The universal view throughout the Department is that S.22, like its predecessor, is deeply flawed from a policy perspective and would pose serious risks to the national security. In addition, this bill, if enacted, would be exceptionally expensive for DoD to implement.

The enclosed memorandum by DoD's General Counsel and Senior Civilian Official for Command, Control, Communications and Intelligence details DoD's numerous policy and budgetary objections to S.22. I fully share the concerns outlined in that memorandum, and want to emphasize some points in particular.

We strongly believe that the bill's proposed "public interest balancing test" would damage the national security, and we would recommend that the President veto any legislation that contains this standard for classifying information. When classifying information, DoD's exclusive focus must be, as set forth in Executive Order 12958, whether its unauthorized disclosure would damage the national security. The "public interest" in the content of the information should not be a consideration.

DoD is also gravely concerned that S.22 would provide the proposed Oversight Office and Review Board substantial authority over classification and declassification of information and special access programs. These matters should remain the exclusive responsibilities of the agencies charged with protecting national security. The Review Board -- a majority of whose members would be private citizens without any experience in government information security policy -- should not have the authority to overrule the Secretary of Defense on an issue of national security.

In addition, we are developing a cost estimate for implementation of S.22 in response to Congressional inquiries. Preliminary work on this estimate indicates that the budgetary impact of S.22 on DoD would be substantial. Due to the bill's stringent automatic declassification requirements and the other changes it would make to current policy, DoD would be required to develop a Department-wide information management system capable of tracking and retrieving virtually every piece of classified information -- including millions of frames of imagery -- that the Department creates. Such a system would cost several billion dollars. We also estimate that the bill would increase annual declassification review costs by several hundreds of millions of dollars.

In short, while DoD fully supports the goal of increasing the amount of information that is available to the public -- support that has been demonstrated in our implementation of Executive Order 12958 -- we believe that S.22 is deeply flawed legislation, which would seriously threaten the national security, and that it should not be supported by the Administration. This matter is of critical importance to DoD. I would welcome the opportunity to meet with you and other interested agencies to elaborate upon our concerns before an Administration position on this bill is adopted.

As stated


I. Background

The Government Secrecy Reform Act (S.22) is based on the report of the Commission on Protecting and Reducing Government Secrecy, a panel chaired by Senator Moynihan. In the 105th Congress, Senator Moynihan introduced S.712. On May 11, 1998, the Administration expressed "serious objections" to certain provisions of the bill but a "willingness to work with Congress on legislation in this area." On July 30, 1998, the General Counsel wrote to Senator Thurmond expressing DoD's serious concerns with S.712. The bill was unanimously reported by the Senate Governmental Affairs Committee. In September, 1998, the Office of Management and Budget circulated a proposed re-draft of S.712 (as reported) for comment. The General Counsel expressed DoD's strong opposition to this re-draft and provided OMB with a detailed set of suggested revisions to the bill. On September 17, 1998, Mr. Berger, Assistant to the President for National Security Affairs, wrote to various members of Congress, expressing the Administration's support for the legislation if six issues could be addressed to its satisfaction. The full Senate did not consider S.712 in the 105th Congress.

A revised version of the bill, S.22, was introduced by Senator Moynihan in January, 1999. Senators Lott, Daschle, Thompson, Collins and Schumer are co-sponsors. The bill has been referred to the Committee on Governmental Affairs but no action has been taken. Companion legislation has not yet been introduced in the House.

The new bill incorporates the Administration position on five of the six issues identified in Mr. Berger's letter, but retains the "public interest balancing test" to which Mr. Berger objected. The new bill retains a number of features to which DoD has previously objected in letters to OMB and the Congress.

II. Summary of the Bill

S.22 would establish a statutory basis for classification of national security information and substantially revise the current standards and procedures for classifying and declassifying information under Executive Order 12958.

Most notably, S.22 would change the standard for classifying information from one that focuses exclusively on the harm that unauthorized disclosure would cause to national security to a balancing test under which information could only be classified if the damage to national security outweighs the public interest in disclosure. The bill also would require original classification authorities to provide a detailed written justification for all classification decisions and a "concise explanation" for all derivative classification decisions. DoD created an estimated 2,090,648 classified decisions in 1998.

The bill would also establish a new Office of National Classification and Declassification Oversight ("the Oversight Office") and Classification and Declassification Review Board ("the Review Board"). The Oversight Office would be located in the National Archives and Records Administration. Its Director would be appointed by the President with the advice and consent of the Senate. The Office would have authority to oversee all classification and declassification activities of federal agencies, including special access programs. The Director of the Office would have the authority to order agencies to declassify information and the power to review all agency requests to postpone automatic declassification. Decisions by the Oversight Office could be appealed to the Review Board, a six member panel appointed by the President with the advice and consent of the President. Four of the Review Board's members must be private citizens who are distinguished social scientists or who otherwise have demonstrated experience in matters relating to national security, records management, or government information policy. Two members must be government employees with similar credentials. Decisions of the Review Board could be appealed to the President.

S.22 would create a stringent regime for automatic declassification of all classified information. Under the bill, information would be automatically declassified after no more than ten years, with two exceptions. First, with the concurrence of the Oversight Office, an agency could issue classification guidance permitting classification of certain information for up to 25 years. Second, agencies could seek from the Oversight Office a 15-year postponement of declassification. Any information that remained classified for 25 years under either of these provisions would be automatically declassified unless an agency determined that "extraordinary circumstances" required continued classification, that determination were certified to the President, and the Oversight Office concurred. The President would be required to establish a schedule for review of any information that had remained classified for more than 25 years.

III. Legal Concerns

We continue to object to the entire concept of comprehensive legislation governing Executive Branch procedures for protecting national security information. Even legislation that would merely codify current Executive Branch practices (which S.22 goes far beyond), would impinge upon the President's constitutional prerogatives in this area and create, in our view, a dangerous precedent for congressional involvement in the details and nuances of the classification process. Codifying our classification and declassification procedures would also eliminate the flexibility necessary for DoD to manage its extensive and complex classification and declassification programs. To provide one timely example, DoD and other agencies are in the process of requesting a three-year extension of Executive Order 12958's automatic declassification deadline for permanent historical records more than 25 years old. If S.22 were enacted and our classification and declassification practices became matters of statutory law, the ability to adjust Executive Branch policy to changing circumstances and practical realities would be lost.

We have three major policy concerns with S.22:

First, we continue to have strong objections to changing the standard for classifying documents from one that focuses exclusively on the harm to national security to one that balances national security concerns against the public interest in disclosure. We believe that the Administration should continue to insist upon the removal of this balancing test from the legislation, as in Mr. Berger's letter of last September. DoD's exclusive focus must be whether disclosure of information would damage the national security. If the Department concluded that such damage was likely, the information should not be released regardless of the "public interest" in the content of the information.

We also have grave concerns that inclusion of a national security/public interest balancing test in the legislation could lead to heightened judicial review of DoD classification decisions. Under current law, the courts generally defer to DoD's assessments of the harm that disclosure would cause to the national security. As the courts have noted, such deference is appropriate because courts generally lack expertise in issues of national security. It is likely, however, that courts would be less deferential with respect to DoD's assessment of the public interest in disclosure or to DoD's weighing of the competing interests at stake. We are also concerned that, under the proposed standard, courts might require agencies to grant security clearances to private attorneys to enable them to participate in proceedings concerning the balancing of competing factors.

Moreover, we doubt the above test could be applied by DoD personnel around the world in a consistently objective fashion. Our military and civilian personnel would lack an objective basis for assessing the "public interest" in disclosure or measuring when such a public interest "outweighs" a national security interest.

We are also concerned that enactment of a public interest balancing test might diminish foreign governments' confidence that we would be able to maintain the confidentiality of sensitive information they provide to us. We believe it is likely that foreign governments would react to the increased discretion S.22 grants to the judiciary by curtailing the flow of sensitive information to us to the detriment of our military, intelligence gathering and diplomatic activities.

Second, we do not believe that the proposed Oversight Office of Review Board should have the power to overrule classification decisions made by the Secretary of Defense. We are especially concerned with vesting this power in the Review Board, since a majority of its members would be private citizens, who would not be required to have any experience in national security policy, intelligence gathering, or military operations. This would be a substantial departure from current practice in which such decisions are made by the Interagency Security Classification Appeals Panel, a body composed of senior representatives from the Departments of Defense, State, and Justice, the Central Intelligence Agency, the National Security Council and the National Archives. Compared to these agency representatives, the private citizens who would sit on the Review Board are not likely to have the necessary information, perspective, or experience to substitute their judgment on national security decisions for those of the Secretary and agency officials that report to him. The fact that DoD could appeal a Review Board decision to the President does not allay our concern. As a practical matter, due to the time and effort an appeal to the President would require, appeals would rarely be taken, giving the Review Board de facto authority to overrule the Secretary of Defense on national security issues. We believe that, if such bodies are to be created, the decisions of both the Oversight Office and Review Board should be advisory and that the burden of appealing to the President (if an agency disagreed with a recommendation) should be the responsibility of the Review Board.

Third, we remain concerned that the legislation would give broad powers to the Oversight Office to "oversee" special access programs. The Deputy Secretary chairs DoD's Special Access Program Oversight Committee, which effectively oversees and manages all the DoD special access programs. DoD reports annually to Congress on all such programs. We do not believe that the Oversight Office should have the authority to prohibit the creation and continued classification of a special access program, subject only to an appeal to the Review Board (composed mostly of private citizens) or the President.

In addition to these three fundamental concerns, we have a series of important, but less serious, concerns with the proposed legislation:

IV. Budgetary Concerns

Since the introduction of S.22, DoD has been analyzing the legislation to determine the changes in our current classification, declassification, and information management practices that would be required to comply with the law if it were enacted. We believe that the changes would be significant and prohibitively expensive to implement. In response to congressional inquiries, we are in the process of developing a detailed Department-wide cost estimate. This estimate is not yet complete, but preliminary work indicates that S.22 would cost several billion dollars for DoD to implement.

S.22 would require DoD to change its declassification practices and information management policies in a variety of ways. Executive Order 12958 established 10 years as the standard classification period, but contains a number of categorical exemptions from 10-year classification, such as information that would reveal United States military plans. Approximately 55 percent of DoD's information falls within these exemption categories. As to the non-exempt materials, the Executive Order permits re-classification of documents if the classification period has lapsed but the documents should not be disclosed. Because this authority exists, it is not presently necessary for our components to review all 10-year documents prior to their declassification date. Furthermore, under the Executive Order, only permanent historical records greater than 25 years old are subject to automatic declassification. Certain categories of information are exempt from this requirement as well. The presence of the categorical exemptions enables much of DoD to use an inexpensive pass/fail system for declassification review, which allows large categories of information to be quickly declassified, but postpones detailed reviews of the exempt categories until a later date.

S.22 would radically alter this framework. First, the bill would eliminate all categorical exemptions. Permission from the new Oversight Office would be required to classify information for 25 years or to postpone declassification beyond 10 or 25 years. Second, the bill would eliminate the current authority to reclassify information. Thus, once a classification period lapsed (and no extension or postponement were obtained), the ability to protect the information would be lost. Third, all information would be subject to automatic declassification, not just permanent historical records as provided in the Executive Order. Thus, huge categories of information, including imagery, temporary records, and duplicate copies, would be subject to automatic declassification under S.22, whereas currently they are not part of the automatic declassification program.

Due to these changes, all of DoD would be required to perform detailed, page-by-page, declassification reviews of all of its classified documents, imagery, emails, and other information prior to their automatic declassification dates. To make such reviews possible, most of our Components would need to develop a comprehensive electronic information management system capable of tracking and retrieving information based on declassification date and other criteria. Until such a system reached operational capability, all classified documents would have to be scanned into a computer database to ensure that they could be retrieved for declassification review at the appropriate time. The costs of purchasing the hardware and software licenses for such a system and training virtually the entire DoD workforce how to use it would total several billion dollars. All of these costs would have to be incurred within five years of S.22's enactment.

Annual declassification review costs would also increase. Instead of using the pass/fail declassification review system (at a cost of $.40 to $1.00 per page), full declassification reviews would need to be performed at triple the cost. S.22's elaborate framework for extensions, postponements, and appeals would also require the same document to be reviewed on multiple occasions, adding to the total declassification costs. We estimate that S.22 would double the $172 million we annually spend on classification management.

These estimates do not include costs attributable to our components that collect substantial amounts of imagery, the declassification of which is currently governed exclusively by Executive Order 12951. For example, the National Imagery and Mapping Agency (NIMA) estimates that declassification of a single frame of imagery costs $47; it collects approximately 5 million frames per year. Annual declassification review costs for NIMA alone, therefore, could total hundreds of millions of dollars. Indeed, the declassification reviews required by S.22 would require more analysts to be dedicated to declassification than are currently allocated to performance of NIMA's national security mission.

S.22 gives the President discretion to establish procedures for declassification of documents created prior to the date of enactment. However, these procedures must be, "to the maximum extent practicable," consistent with S.22. If the Executive Order's procedures were retained for the billions of pages of classified documents that currently exist, no additional costs would be incurred. If, however, compliance with S.22 were required for declassification of either information greater than 25 years old or information created over the past 25 years, substantial costs would be incurred because all the information would have to be scanned into a database for tracking and retrieval purposes. Review costs would also be accelerated. For example, under the Executive Order, a document created in 1995 that would reveal weapons technology would not be subject to automatic declassification until 2020. Under S.22, that same document would have to be reviewed for declassification (or for seeking an extension) in 2005.

We believe there would be many other categories of costs resulting from S.22 that are difficult to quantify. The new justification requirements for original and derivative classification decisions would require DoD personnel to expend additional time on "justifications" every time a classified document is created. Classification guidance would need to be revised to accommodate the new balancing test. Interactions with the new Oversight Office would impose an additional regulatory burden on the Department. Freedom of Information Act litigation would almost certainly increase as well.

V. Conclusion

In short, although S.22 has the laudable goal of reducing the amount of information that must be withheld from public disclosure, we strongly recommend that DoD and the Administration not support S.22. The bill would seriously weaken our ability to protect national security information and would be prohibitively expensive to implement.

FAS | Government Secrecy | News ||| Index | Search | Join FAS