From the Spring 2003 issue of The News Media & The Law, page 16.
By Rebecca Daugherty
Since President George W. Bush took office, reporters who cover national security issues had been expecting new rules that dictate what information will be classified. Information that is classified by a presidential executive order is not available under the federal Freedom of Information Act.
The new directive, signed by Bush in March, came in the form of an amendment, not a replacement, to President Bill Clinton’s 1995 order. It makes a few significant changes to the classification process, but leaves most of the Clinton order intact. That means that Clinton Executive Order 12,958 is still in effect, as amended by Bush’s order.
A key change is removal of language ordering that information be declassified if there is “significant doubt” that disclosure could harm national security. The Clinton order, at least on paper, reversed a long-standing unwritten policy of “if in doubt, don’t give it out” that had resulted in unwieldy stores of classified information.
The amendment creates a presumption that release of foreign government information will damage national security if the other country has not authorized disclosure.
The amendment also allows reclassification of records that already have been disclosed or declassified if the head of the agency rules that it is necessary and the information can be reasonably recovered.
In a purely administrative change, drafters of the amendment changed the word “information” to “record” where protection and review of information hinges on an agency’s ability to physically safeguard information. However, the actual protection against disclosure still refers to “information.” This means that segregable portions of records that would not harm national security can be released after the removal of classified information.
The amendment makes a few other changes, but retains most of the language in the 1995 Clinton order.
The 1995 Clinton executive order on classification was the first issued since 1982, and responded to increasingly frequent complaints that vast overclassification of records was crippling the ability of outside researchers and even of federal agencies to understand national security matters.
The Bush amendment delayed the release of information set for automatic disclosure in April 2003 to release in 2006. The approaching deadline for these disclosures drove the timing of the new directive. But the new order leaves intact the actual requirements for automatic declassification of most records after 10 or 25 years, which were established by the Clinton order.
It also does not change another creation of the Clinton order. The Interagency Security Classification Appeals Panel will continue to review challenges to classification. Its record is better than the record for declassifying records sought through the Freedom of Information Act. It has ordered declassification in 70 percent of the cases it has heard.
But under the new executive order, the director of the Central Intelligence Agency has new veto power over decisions by the ISCAP to declassify CIA records. The CIA veto power is narrow and not necessarily final (provisions in the new order allow for presidential review of the veto) but it represents an additional check on ISCAP decisions calling for information to be disclosed.
Bill Leonard, director of the Information Security Oversight Office, said the attorneys and others that the revisions represent a “change in tone.”
ISOO is a small government office attached to the National Archives and Records Administration that oversees classification throughout the federal government. Its staff is working on a directive due in September that will tell federal agencies how to implement the new executive order.
Leonard’s characterization of the order as a “change in tone” mirrors a description by Justice Department attorneys of the differences between the directions of current Attorney General John Ashcroft and his predecessor Janet Reno to federal agencies on how they should respond to Freedom of Information Act requests.