In defense of disclosure
From the Winter 2011 issue of The News Media & The Law, page 12.
There’s one thing government access advocates and anti-leak advocates agree on: too much information held by the federal government is classified.
In October, members of the press, the non-profit access community and the federal government met in Washington, D.C., to discuss their sometimes allied concerns on the current state of overclassification.
J. William Leonard, former head of the Information Security Oversight Office at the National Archive and Records Administration, said he often warned of the dangers of overclassification in the executive branch and pointed to WikiLeaks’ release of documents from the Iraq and Afghanistan wars.
Although he said he thought WikiLeaks’ actions were reckless, he added that the released documents clearly underscore the overzealous manner in which the government uses the classification system.
“If you go through [the WikiLeaks documents], there’s absolutely no discernment between the classification assigned to an auto accident versus the classification assigned to information that would in fact disclose a local national who is cooperating with coalition forces,” Leonard said.
“There has been rightful condemnation on the leak by some of our government’s leaders, but I’ve yet to see any of our government leaders accept responsibility for what is directly under their control, and that is the reckless manner in which this critical national security tool is in fact applied,” he said.
Leonard, who reported to former President George W. Bush on classification issues, also said many executive departments and agencies have not been adhering to the classification standards required under the Freedom of Information Act and they often mark documents as classified without justification, a problem that simply goes unchecked.
“Even though the standards are relatively minimal, there are standards that have to be met, and one of the things that I’m constantly chagrined at is how often I encounter agencies just simply asserting classification,” Leonard said. “And even more distressing is when other branches of government, be it the judicial or the legislature, just automatically [defer] to that assertion.”
Mark Mazzetti, a national security correspondent for The New York Times, said that “there is no doubt there’s overkill” in classification. “I’ve seen stories of mine turned into a government document and stamped classified,” he said.
Michael Isikoff, an investigative reporter for NBC Nightly News, said that by merely asserting classification without sound reasoning, many government agencies are obstructing the free flow of information that runs counter to American ideals.
“We shut down any reasonable conversation in a democracy if we just use ‘it’s classified’ as the yardstick for whether or not there should be public disclosure,” he said.
“Overclassification hurts the credibility of the classification system and makes leaks more prevalent,” said Gabriel Shoenfield, a senior fellow at the Hudson Institute, a think tank based in Washington, D.C.
Beyond the concerns of the government and the news media, open government advocates, many of whom research and report on government secrecy issues, also have grave concerns for the impact of overclassification on public discourse.
“It adds expense, it reduces the efficiency of government operations and it deprives the public and the political process of information that would otherwise be available,” said Steven Aftergood of the Project on Government Secrecy at the American Federation of Scientists. “When information is legitimately classified, then we accept that it will not be available. But when it’s overclassified, when it’s unnecessarily withheld, then we end up distorting the political process and impeding public deliberation.”
Aftergood said that although a major resurgence of overclassification occurred during the Bush era, the problem has survived for years within the executive branch and it will not disappear in the near future without dramatic changes not only in policy, but also in ideology.
“It actually pre-dated [former U.S. Attorney General John] Ashcroft and it survived him. I think overclassification in some respects is the path of least resistance. It requires little thought, and it entails no penalty. So without some countervailing pressure and some compelling leadership, there’s no reason to think that it would decline,” he said.
Aftergood said he also believes that, despite President Barack Obama’s goals for creating a more open executive branch, policies conducive to secrecy are still pervasive.
“In some areas, it’s as bad as it has been for the past decade or more. If you look specifically at state secrets policy, there has been no meaningful shift in the current administration from where we were previously,” he said.
But while individuals from a wide range of fields recognize that overclassification is rampant within federal and state agencies and departments, disagreement still remains on the root cause of the problem and the remedies needed to solve it.
Improvements under Obama
Despite remnants of Bush-era secrecy that still characterize the daily business of the federal government, Aftergood and Nate Jones, FOIA director for The National Security Archive, remain hopeful about some of the changes in the classification process put forth by the Obama administration.
In December 2009, Obama issued Executive Order 13526, which “prescribes a uniform system for classifying, safeguarding, and declassifying national security information.”
In his order, which establishes the types of information executive departments and agencies can classify in the name of national security under FOIA Exemption 1, Obama recognized the need for an informed citizenry as a key element of successful democracy.
“Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation’s progress depends on the free flow of information both within the Government and to the American people,” the order said.
“Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities,” the memo said.
Aftergood said that, in effect, the executive order calls for a “fundamental classification guidance review” requiring each federal department or agency that classifies information to go through its classification guides and procedures in order to identify and declassify information that does not need to be withheld from the public.
“It’s a focused, systematic attempt to combat overclassification,” he said. “It’s the first time anything like this has really been done. And it has the potential to significantly reduce the scope of what gets classified. It’s a process that’s supposed to last two years and to conclude in June of 2012, so it’s not just a pro forma exercise; it’s supposed to be a real review. And it might just work.”
Jones also expressed optimism about the possible benefits of Obama’s executive order and said that the spirit of openness that has been rekindled under the current administration has made the job of openness advocates much easier.
“At the National Security Archive, one of the most helpful things that we can do is pick up the phone and call, and just talk to the people processing the request to see what we really want. That saves them work, and gets us what we’re really looking for,” he said. “More open communication and more of an effort to work with requesters” has been a significant improvement.
Jones also said that merely having the president and his administration discussing the importance of open government is an important step in itself.
“Obama said the FOIA is a profound commitment to open democracy . . . Even just having that spirit and having the president say that — rather than having the attorney general saying, ‘withhold anything that you can,’ it helps,” he said.
However, Jones said that much work needs to be done for this proclaimed commitment to reach all levels of the classification system.
“It hasn’t trickled down to the nuts and bolts of actually declassifying the documents,” he said. “But if these guides are updated to really instill in the people actually doing the classifying or withholding that [the new standards] are different than the previous administration, and the people actually change their practices, I think that would be the big victory.”
Aftergood also cautioned that Executive Order 13526 is only the first run at a process that will have to be repeated on a consistent basis in order to make the changes a lasting and permanent element within the federal government.
“It’s a new approach that can pay high dividends. Will it solve the problem once and for all? Almost certainly not,” he said. “Once the initial review is done, then the next review will be due. So the process will never quite be finished.”
Beyond the executive order, the government recently has made other strides toward addressing overclassification.
“There have been some real changes,” Aftergood said. “Intelligence budget disclosure, disclosure of the size of the U.S. nuclear weapons arsenal — that is something new and unprecedented in 2010.
“Not because nobody thought of it before — people have been asking and urging and begging for it for 20 years at least, and it’s always been rebuffed — but now it’s a fact, and I think that counts as real progress in my book.”
In another effort to address the problem of government secrecy, Obama released Executive Order 13556 in November calling for a uniform program for managing unclassified information that is subject to protections from full disclosure under FOIA known as Controlled Unclassified Information, or CUI.
Much like Obama’s previous order, this order calls for a uniform approach to how executive departments and agencies redact information in unclassified documents, which Jones said would greatly help requesters of such information.
“Instead of having 90-some different CUI markings, [which] would ultimately hurt openness, there’s one uniform method that we think will be very beneficial to giving the public one fair method to get the documents they’re requesting.”
Mandatory declassification review
Despite such steps toward a greater transparency under Obama, Jones said that ultimately, the FOIA is not the best means for national security reporters to gather information.
He said that intelligence agencies tend not to give out a lot of information through FOIA and the request process takes a long time, which is not conducive to the quick turnaround that daily newspapers require.
The method for obtaining classified documents is a process called Mandatory Declassification Review. MDR requests can be made to individual agencies to release a document that has been withheld from the public. The agency must then review the request and can either release the document or deny disclosure, Jones said. The requester then has the opportunity to appeal the denial to the Interagency Security Classification Appeals Panel, which can override the agency’s decision.
“It’s kind of the only place where uniform standards exist, and it’s always good to appeal your case all the way there because it means that you actually get a fair shake and almost a standardized process,” Jones said, adding that the MDR process “shows that standardization is good from the requester’s point of view.”
Addressing overclassification, one agency at a time
A common argument made by many advocates for change in the classification system is that no uniform standard for classifying documents exists across the nearly 100 departments and agencies within the executive branch and that such a system would solve much of the overclassification dilemma.
However, Aftergood said he believes that a uniform classification standard would not only be incredibly difficult to achieve, but the differences between various executive agencies also make it an impractical endeavor.
“How do you compare the classification of the construction of a stealth bomber, to the name of an intel source in Afghanistan, to a conversation between diplomats at the U.N.? These are really distinct issues that can’t be measured on the same scale,” Aftergood said. Rather, he believes these issues must be addressed at the individual agency level.
“What can be done is for each of those [classification standards] to be reviewed on its own terms and to eliminate those that serve no legitimate purpose,” he said.
According to Aftergood, the main problem with classification currently is the way that individual agencies’ classification guides are written, which he refers to as “the software that runs the classification system” and that “specify exactly what information should be classified at what level.”
Jones said he also believes that a uniform standard for classification isn’t likely or practical because of the vast differences across federal departments and agencies.
“The federal government is not uniform; it’s 90-some different agencies with 90-some different agency heads,” Jones said.
Like Aftergood, Jones also believes that focusing change on individual agencies and rewriting classification guides is the best possible step the government could make toward solving the problem. And while many agency heads have begun to implement changes in response to Obama’s push for openness in government, the process is moving slowly and has yet to reach all levels of the executive branch.
“It really takes a trickle-down effect, and we’re beginning to see it, especially at the agency head level, but it hasn’t trickled down all the way to the people actually doing the declassifying,” he said.
A new wave of overclassification
Some open government advocates were optimistic that the federal government would permanently move towards a presumption of openness after the Clinton administration enacted strong classification reforms.
However, evidence shows that the pendulum has steadily swung back toward overclassification in the 21st century as fears about terrorism have come to dominate U.S. foreign policy.
Examples abound in the years since the so-called “War on Terror” began that demonstrate the extent of material executive officials have been willing to classify in the name of national security:
• The Defense Intelligence Agency blacked out portions of a 1975 biographic data report on former Chilean dictator Augusto Pinochet when the documents were released under the federal Freedom of Information Act in 2003, claiming that the disclosure of the redacted material was a threat to national security, according to the National Security. Some of the redacted information included Pinochet’s liquor preferences: “scotch and pisco sours.” The same document had been previously declassified by President Bill Clinton in 1999 and published in a book by the National Security Archive.
• The Department of Energy classified its intelligence budget in 2005 and reclassified all earlier intelligence budgets, claiming national security exemptions under the Freedom of Information Act, according to The Reporters Committee for Freedom of the Press’s Homefront Confidential.
• In 2009, the U.S. Air Force refused to release in their entirety documents detailing why, during the 1973 Arab-Israeli war, the Nixon administration raised the U.S. military alert to DEFCON 3, the third-highest condition of defense readiness, according to the National Security Archive. The Air Force claimed releasing such information would still cause “serious damage to the national security.”
• Last September, the Pentagon purchased and destroyed 10,000 copies of the controversial Afghan war memoir “Operation Dark Heart.” A redacted version of the book was released weeks later. Examples of the redacted information include: a well-known nickname for the National Security Agency; the location of the CIA’s training facility at Camp Peary, Va.; the commonly used abbreviation SIGINT, which stands for “signals intelligence”; and the author’s cover name in Afghanistan, as well as the source of this cover name, a character from the 1949 John Wayne movie, “The Sands of Iwo Jima.”
The future of the classification system
Aftergood and Jones believe that in an era where journalists and government watchdogs spend most of their efforts trying to determine why information has been classified and in getting those documents released, the new executive orders under Obama are a much-needed step on a lightly trodden path.
However, Obama’s push for openness also comes at a time where the U.S. is still involved in two wars abroad and where the mass release of sensitive information by WikiLeaks has threatened the likelihood for greater disclosure and the passage of a federal reporter’s shield law.