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A board meant to review declassification needs permission to do so. From the Winter 2007 issue of The News Media…

A board meant to review declassification needs permission to do so.

From the Winter 2007 issue of The News Media & The Law, page 34.

By Nathan Winegar

A government board created in part to make recommendations to the president about the need for classification of specific documents has been stalemated on that function less than a year into its existence.

The Public Interest Declassification Board, which began meeting in February 2006, was intended as an independent voice within the executive branch on various declassification issues.

But Congress included language in the statute governing the board that appears to require presidential authority before the board can consider whether a document referred to it by lawmakers should be classified.

Such bureaucratic niceties as asking permission to offer opinion have irked those who have been waiting nearly a decade for this board to assume its role as an advocate for the release of historically significant documents and for better systems to identify classified material that no longer needs its protected status.

‘Excessive secrecy’

The Public Interest Declassification Board (PIDB) is in many respects the brainchild of the late New York Democratic Sen. Daniel Patrick Moynihan.

Moynihan led a two-year commission that studied the issue of government secrecy and concluded in its 1997 report that “excessive secrecy has significant consequences for the national interest when, as a result, policymakers are not fully informed, government is not held accountable for its actions, and the public cannot engage in informed debate.”

One of the Moynihan commission’s recommendations was a PIDB-like independent entity within the executive branch that could oversee the classification and declassification process and make formal recommendations about whether specific pieces of information should be declassified.

The idea was that the independence of the board would allow it to cut through the bureaucratic and political forces that resulted in overclassification.

Congress mulled the recommendation for three years before passing the Public Interest Declassification Act in 2000, just as Moynihan was retiring his Senate seat.

For four years the board existed in the text of this legislation only — no members were named to the board until 2005.

Then, once the members were named, the board went unfunded until early 2006, when the board was about to expire because of a sunset provision in the law.

Finally, in February 2006, the board members were able to begin meeting to tackle their mandates, including studying the process for releasing classified information and suggesting improvements to make available historically important information that no longer poses a threat to national security.

The board’s early meetings have focused on gathering information directly from agencies as to how they run their declassification programs. This, according to Board Chairman and former CIA Inspector General L. Britt Snider, will be combined with testimony from citizens, academics and other experts who seek greater access to governmental information, culminating in a report issued to the president in late 2007.

“We see our role as being a prod in the system,” Snider said. “We see ourselves as a nonpartisan advocate for the public interest in getting the information out when it can be gotten out.”

‘An unnecessary requirement’

Aside from critiquing agency declassification systems, though, the board is also charged with making recommendations on specific pieces of classified information when referred by a member of Congress.

In the first test of the board’s authority on this point, which some observers call its most important purpose, the board has run into controversy.

In September, some senators on the Intelligence Committee invoked the authority of the board for the first time by referring to it a report on pre-Iraq war intelligence that the senators said had been overclassified by the intelligence agencies within the Bush administration.

Snider said the board is ready to investigate the matter but has been met with resistance by the White House. Though the Public Interest Declassification Act dates to 2000, it was amended in 2004. Specifically, five words were added to the beginning of Section 704(e), which now reads: “If requested by the president, the Board shall review in a timely manner certain records or declinations to declassify specific records, the declassification of which has been the subject of specific congressional request . . .”

Snider has written letters to several congressional committees seeking to have the law changed so that presidential approval is no longer a prerequisite to making recommendations on the classification status of documents referred to it by Congress.

“We thought it was an unnecessary requirement because the executive branch controls the documents anyway,” Snider said. “It is also unworkable.”

Nick Schwellenbach of the Project on Government Oversight said a failure to make specific classification recommendations renders the value of the entire board questionable.

“I don’t think it is a pointless entity,” he said. “But this is its most politically sensitive function and it is not even able to make a recommendation in the first place.”

Schwellenbach said it is up to Congress to back up the board it created if it intends for the PIDB to do meaningful work.

Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, has followed the glacial pace of the board’s development and said this latest controversy is exasperating, given what he considers is the need for an entity like the PIDB to help reduce the expense and resources government agencies devote to classifying information that does not threaten national security.

“There is something pathetic about the whole situation,” Aftergood said. “It is an artifact of the statute and not a reflection of the membership of the board — it is really stellar — people with great expertise and authority on classification, and if they have recommendations, we need to hear from them.”