New law requires review of declassification decisions

The 2000 Defense Authorization Act, passed by Congress and signed into law by President Clinton in early October, contains provisions that potentially slow down the declassification of historical documents. Enactment of the measure came on the heels of a report from the National Archives and Records Administration that 131 percent more pages had been declassified during the last three years than in the prior 16 years combined.

One central declassification provision requires review of approximately 600 million pages of documents that have been declassified since 1995. A second limits the amount of money that the Department of Defense can spend on declassification efforts.

On April 17, 1995, President Clinton signed Executive Order 12958, which was entitled “Classified National Security Information” and which took effect on Oct. 14, 1995. A portion of the order requires the automatic declassification of most historically valuable information that is 25 years old or older.

Before Clinton signed the order, records deemed “classified” retained their status indefinitely and federal agencies needed to demonstrate why a document previously determined to be “classified” should be released to the public. Under Clinton’s order, all documents classified 25 years ago or earlier would be declassified before April 2000, except where an agency head and an interagency panel determined that documents fell into an exception to declassification.

In late August 1999, the National Archives and Records Administration’s Information Security Oversight Office issued its fiscal year 1998 Report to the President. According to Director Steven Garfinkel’s letter to Clinton, which accompanies the report, executive branch agencies reported declassification of more than 193 million pages during fiscal year 1998 of records that have permanent historical value.

“In three years under your Executive order, the agencies have declassified 131 percent more pages than in the prior 16 years combined,” Garfinkel wrote to Clinton, describing the approximately 600 million documents that have been declassified under the order.

Garfinkel’s letter also noted that executive branch agency heads had reduced by more than 100 the number of people responsible for classifying documents. Clinton had asked the agency heads to reduce the number of classifiers when he signed the order, according to Garfinkel’s letter. The report itself stated that the CIA accounted for 40 percent of all classification decisions, with the Department of Defense coming in with 29 percent.

Garfinkel cautioned, however, that his office remains concerned about a continuing increase in the number of documents that are being categorized as “classified.” However, he attributed the increase to an upsurge in recent military, intelligence, and foreign relations activities and the reporting of electronic transmissions like e-mail rather than to actual increases in the numbers of classified programs.

In early October, five weeks after ISOO issued its report, Clinton signed into law the 2000 Defense Authorization Act, provisions of which affect the declassification effort that has taken place since 1995. One provision mandates that all of the approximately 600 million documents declassified since 1995 must be reviewed again for a determination of whether any nuclear weapons data were inadvertently released into the public domain.

That provision was not contained in the House of Representatives’ version of the legislation. It was inserted into the Senate version via an amendment sponsored by Sens. Trent Lott (R-Miss.) and John Kyl (R-Ariz.) and then included in the final version passed by both bodies and signed by the president.

The act also provides a spending cap of $51 million for declassification at the Department of Defense. The House version had limited spending for declassification activities to $20 million while also limiting the Department of Energy’s spending to $8.5 million. No limit on the Department of Energy was included in the signed legislation.

According to Federation of American Scientists Project Director Steven Aftergood, the act’s declassification provisions will have severe consequences for the movement to declassify older documents. “New classification activity at the Department of Energy and elsewhere will be significantly impeded as declassifiers are sent back to the National Archives to re-examine the vast quantity of records that were previously declassified,” Aftergood wrote in the October 1999 edition of the Secrecy & Government Bulletin.

He added that the 600 million pages that had been declassified during the last three years had transformed a previously entrenched bureaucracy in Washington. “Now, with congressional intervention, it seems that the glory days of declassification have come to an end,” Aftergood wrote.

But Garfinkel said that he was not pessimistic about the effects of the act on declassification. He noted that he believes this period of time will be remembered as an extraordianry one for the declassification effort, and that neither the re-review provision nor the expenditure limit will have a devastating effect. (Public Law 106-65)