Transforming Classification

Yesterday, the White House announced the declassification and release of records related to human rights abuses committed under Argentina’s 1976-1983 dictatorship.  The President committed to prioritizing the declassification of these records in March 2016, including the release for the first time of records from U.S. intelligence, law enforcement, and defense agencies.  You can view the records at https://icontherecord.tumblr.com/.

The declassified records originate from four Presidential Libraries operated by the National Archives and Records Administration.  The successful release of these 550 pages of records underscores the PIDB’s recommendation that agencies should continue to prioritize the declassification review of records from the Presidential Libraries.  From the standpoint of their historical significance, the records of former Presidents are, arguably, the most important records needed by the public to obtain an accurate and complete understanding of the nation’s history and role in the world.

The PIDB looks forward to the planned release of more records from this declassification project in 2017 and congratulates the Office of the Director of National Intelligence and the fourteen agencies and departments who participated in this successful release.

In anticipation of our public meeting this Thursday, December 8, 2016, we have asked our Civil Society participants to share comments and recommendations in the form of white papers.  You will find white paper submissions from Patrice McDermott at OpenTheGovernment.org, Nate Jones from the National Security Archive, Elizabeth Goitein from The Brennan Center for Justice, and Steven Aftergood from the Federation of American Scientists by clicking on the links below.  Thank you for your willingness to participate in this important discussion.

Please remember to REGISTER for the public meeting using Eventbrite.

Clarify and Delimit Scope of Classified “Methods,” by Patrice McDermott, OpentheGovernment.org 

“There’s classified, and then there’s classified:” Tangible Steps to Fix the Classification and Declassification System, by Nate Jones, National Security Archive

Eight Steps to Reduce Overclassification and Rescue Declassification by Elizabeth Goitein, The Brennan Center for Justice

Modernizing the National Security Classification and Declassification
Systems Through the Next Administration’s Executive Order by Steven Aftergood, Federation of American Scientists

For the Public Interest Declassification Board:

The former head of the Information Security Oversight Office, responsible for oversight of the US classification system, has acknowledged that classification officials joke that “you could easily classify the ham sandwich.”[1]  Barack Obama has summarized the tension between the public’s right to know and the necessity for the government to keep some secrets as: “There’s classified, and then there’s classified.”[2]  Certainly, much work remains for the Public Interest Declassification Board to meet its goal of “modernizing the national security classification and declassification systems.”  Here I suggest three achievable measures that the next Executive Order on Classification could take to reduce over-classification, improve declassification, and begin to rebuild the public’s trust that documents stamped as “secret” actually contain information that should be withheld from the public.

First, the next Executive Order should further improve the efficiency of the National Declassification Center and expand its authority.  The NDC has eliminated much—though certainly not all —of the National Archives’ backlog of historic documents.  Its “indexing on demand” program serves as a quick and efficient mechanism for researchers to request and usually receive previously classified records.  But further improvements are needed for the NDC to achieve its mission of “releasing all we can, protecting what we must.”  It must completely end its “pass fail” reviews where a single classified word in a document can cause it to “go to the back of the vault” and remain classified indefinitely.  It must also stop allowing multiple re-reviews by multiple agencies of historic documents.    The NDC should also, once again, adhere to the principle of automatic declassification; this principle, established in the current Executive Order[3] but not practiced, requires documents to be declassified without a review when they reach a certain age.  This is the only workable solution to the coming exponential avalanche of digital historic records.  The PIDB has correctly called these malpractices as “wasteful, expensive,“ and “unsustainable.”[4]  Fortunately, the NDC has taken note and begun to remedy them.

Once these inefficiencies are modified and the NDC is solidified as the government’s premier, most efficient declassification mechanism, it should expand to target not just classified documents accessioned to NARA but also those held by the Presidential Libraries. Declassifying documents held by the Presidential Libraries is the bureaucratic equivalent to passing a kidney stone.  For a member of the public to even see what is in the Library’s boxes a researcher must submit a Freedom of Information Act request (which usually takes years to process).  Even worse, any document that has ever been deemed classified is not even reviewed during this process and the researcher must submit a second Mandatory Declassification Review request (which again usually takes years), before possibly having the ability to access this critical history (even then, if it has been censored by an overzealous redactor, the MDR appeal process, again, usually takes years).[5] If the incoming administration is able to utilize the strength of the National Declassification Center to declassify all declassifiable material held by the Presidential Libraries, it will be an extremely beneficial accomplishment.

Second, the incoming administration’s Executive Order on Classification should finally fully realize the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document.[6]  This means that no sets of information—including any agency’s operational files—should be automatically exempted from declassification review.  The US government once used this specious claim to attempt to thwart the release of any President’s Daily Brief, ever.  Fortunately, under the current administration the Central Intelligence Agency and National Archives reversed course and released the PDBs from the Johnson and Nixon administrations —though many still have far too many redactions.  Unfortunately, agencies including the CIA continue to ignore the current Executive Order’s instruction that “No information may remain classified indefinitely” and refuse to even review other historically important operational files for release.

The current Executive Order also includes a provision which states that in “exceptional circumstances” an agency head may declassify “properly classified” information when she deems that “the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”  The language in the next Executive Order should be modified so that this common sense logic applies to all classification and declassification decisions, not merely “exceptional circumstances.”  While the fact that President Kennedy agreed to remove Jupiter Missiles from Turkey to end the Cuban Missile Crisis may be technically “properly classified,”[7] it is not a justifiable secret to keep from the public —and greatly harms the government’s ability to keep its true secrets.

Finally, the Public Interest Declassification Board should get into the declassification business.  The Board has done much good work by issuing guidance and recommendations, providing a forum for public insight, and improving classification and declassification from the inside.  But it has done little to actually declassify documents.  The next Executive Order on Classification –or if necessary, legislation– should empower the PIDB get its hands dirty.  The PIDB should have the authority to compel the NDC or another body to declassify the documents, including those referenced in this piece, that it deems in the public interest —there are trillions of them.

[1] Jonathan Abel, “Do You Have to Keep the Government’s Secrets?: Retroactively Classified Documents, the First Amendment, and the Power To Make Secrets Out of the Public Record,” University of Pennsylvania Law Review, Vol. 163, 2015.

[2] Michael D. Shear, “Obama Says Hillary Clinton Wouldn’t Intentionally Endanger U.S. With Emails,” New York Times, April 10, 2016.

[3] Executive Order 13526

[4] The Public Interest Declassification Boart, “Setting Priorities: An Essential Step in Transforming Classification,” December, 2014.

[5] In one startling case, it took the National Security Archive 12 years to win the release of a document held by the George H. W. Bush Presidential Library. See http://nsarchive.gwu.edu/NSAEBB/NSAEBB427/#_ftn12

[6] “Report of the Commission on Protecting and Reducing Government Secrecy,” 1997.

[7] Bill Burr, “Dubious Secrets of the Cuban Missile Crisis,” National Security Archive, February 21, 2014, http://nsarchive.gwu.edu/nukevault/ebb457/

A White Paper Submission to the PIDB:

Section 102(d)(3) of the National Security Act of 1947 (1) makes the Director of National Intelligence responsible for protecting intelligence sources and methods from unauthorized disclosure. The director has “very broad authority to protect all sources of intelligence information from disclosure.”(2)

As has been regularly noted, though, almost anything can serve as an intelligence source or method, including a subscription to the daily newspaper. And we have had confirmation since 2013 that assertions—that classified methods were so intertwined with policy discussions that the documents (in particular FISC orders) could not possibly be declassified, even in a redacted form—were not true. They could not be declassified—until they were.(3) Bulk collections of US persons communications records were declared unconstitutional by a three-judge panel for the United States Court of Appeals for the Second Circuit. The FISC has also found in several cases that the government’s surveillance, classified as a method, was unlawful.

Executive Orders on National Security Classification have routinely extended the permission to classify intelligence sources and methods. It is instructive to note that a predecessor order, EO 11652, issued by President Nixon in 1972, gave concrete examples of the sort of potential damage resulting from disclosure that would justify a “Top Secret” classification of the information to be withheld: “… the compromise of vital national defense plans or complex cryptologic and communication intelligence systems; the revelation of sensitive intelligence operations; and the disclosure of scientific or technological developments vital to national security.”(4)

The overbroad terminology and lack of specificity in subsequent Orders has given broad rein to the Intelligence Community. Indeed, twenty-five years later Senator Patrick Moynihan addressed this same issue in the 1997 Moynihan Commission report:

Underlying the rationale of “sources and methods” as the reason that information is kept secret is not the content of the information itself, but instead the way it was obtained. Yet the public and historians generally do not care how the information was collected; they want to know how it was used and what decisions it informed. Too often, there is a tendency to use the sources and methods language contained in the National Security Act of 1947 to automatically classify virtually anything that is collected by an intelligence agency–including information collected from open sources.

… Clarification through issuance of a directive by the Director of Central     Intelligence of the scope of and reasons for sources and methods protection would still ensure that sensitive information stays secret. At the same time, such a directive explaining the appropriate scope of that protection would help prevent the automatic withholding of all information that might relate in any manner, however indirectly, to an intelligence source or method.

National security classification should protect our democracy, not shield government actions that – too often consciously and deliberately – go around democratic practices and subvert constitutional protections. The vagueness and un-delimited scope of classified “intelligence methods” needs to be rectified in the next Executive Order to ensure that it does not permit these uses.

(1) 50 U.S.C.§ 403(d)(3)
(2) Central Intelligence Agency v. Sims, 471 U.S. 159, 168-169 (1985).
(3) seehttps://icontherecord.tumblr.com/post/70683717031/dni-announces-the-declassification-of-the
(4) see http://www.fas.org/sgp/library/quist2/chap_7.html

A White Paper Submission to the PIDB:

In a political climate where consensus is rare, there is remarkably little dispute about the need for classification reform. Officials from Democratic and Republican administrations agree that far too much information is unnecessarily classified and that the current declassification process is wholly inadequate to handle the oncoming wave of classified digital information. It is also clear that our dysfunctional classification system harms national security, as it inhibits information-sharing and invites carelessness.
Below are eight measures the next executive order could include that would go far toward reducing overclassification and rescuing declassification.

Reducing Overclassification
Overclassification is enabled by a lack of objective criteria to guide original classification decisions. While officials must be able to exercise discretion and judgment, these should not be unbounded. The classification categories listed in section 1.4 of the order are too broad to provide meaningful constraints. Moreover, the concept of “damage to the national security” is not defined and is extremely elastic. The next executive order should create a White House-led commission of senior agency officials charged with (1) tightening the criteria for classification, and (2) providing a definition of “damage to the national security” that sets an appropriately high bar.

Ensuring that the criteria are sufficiently specific will require addressing the treatment of “intelligence sources and methods.” Some agencies interpret the National Security Act to categorically bar public disclosure of sources and methods, without any further inquiry into their sensitivity. In fact, the law requires the Director of National Intelligence to protect against “unauthorized” disclosures only, and makes clear that the classification of sources and methods must be under appropriate legal authority. The next executive order should clarify that sources and methods may be classified only if they otherwise meet the criteria for classification.

Another problem lies in the guidance provided to derivative classifiers, whose role is not to exercise independent judgment but merely to carry forward original classifiers’ decisions. The topics in some agency classification guides are broad or vague, deputizing derivative classifiers to make their own assessments of national security harm. Many guides are outdated and thus unreliable. And classifiers are understandably overwhelmed by the sheer number of guides and topics. The next Fundamental Classification Guidance Review should be directed at addressing these problems.

A major source of overclassification is the absence of disincentives. In theory, agencies may penalize officials for improper classification, but there is little appetite to do so and no system in place to identify individual offenders. The executive order should direct agencies to implement an auditing system, such as the spot audits recommended by the Brennan Center, with mandatory consequences for repeated or intentional misuse of classification.

The classification of rules or legal interpretations that set binding standards for government conduct – i.e., “secret law” – engenders unique harms and constitutional concerns. The next executive order should impose a higher substantive bar for classifying legal authorities and implement additional procedural safeguards to ensure they are classified only in rare cases of clear necessity. The Brennan Center has developed specific recommendations along these lines.

Rescuing Declassification
The current executive order requires “automatic” declassification of information after 25 years unless it falls under certain exemptions. In fact, declassification is anything but automatic. Multiple agencies perform lengthy “equity” reviews, and the so-called “Kyl-Lott amendment” requires line-by-line review absent certification that the information is “highly unlikely” to contain nuclear information. As long as these impediments remain, declassification has no chance of keeping pace with classification. The next executive order should authorize the National Declassification Center to declassify records at 25 years without agency referral, and empower agencies to make broad categorical decisions about which records are “highly unlikely” to contain nuclear information.

Inexplicably, there is no system in place to identify and declassify information classified for less than 25 years, unless it is the subject of a Freedom of Information Act (FOIA) or Mandatory Declassification Review (MDR) request. Such information often languishes until the 25-year mark is reached. The next executive order should direct the implementation of a two-tiered system for declassifying information classified for less than 25 years. Where the declassification date is tied to the completion of specific operations or events, the document should be marked accordingly, and classification should be “self-cancelling” – i.e., declassification should happen electronically and without review. In all other cases, an electronic alert should trigger review when a document reaches the declassification date.

Finally, MDR has been highly effective in achieving declassification of information classified unnecessarily or for too long. However, it operates too slowly to be useful when the information sought relates to immediate public controversies. MDR lacks an expedited review mechanism like the one that exists under FOIA. The next executive order should rectify this and establish an expedited review track where the requested information would contribute to a significant current public conversation or debate.

A White Paper Submission to the PIDB:

Thank you to Chairman Morrison and to the Board for getting this conversation started.

Assuming that the next Administration will in fact prepare a new executive order on classification policy, I would like to propose two specific steps for consideration: (1) a new procedure for considering declassification of properly classified information, and (2) a new initiative to develop and test innovative information security measures.

1. A new provision for requesting declassification of “properly classified” information

I suggest modifying the current provision in Section 3.1(d) of E.O. 13526 to establish new procedures that would enable the public to seek declassification of properly classified information.

As things stand, information that is “properly classified” is exempt from the Freedom of Information Act. Likewise, mandatory declassification review does not extend to properly classified information. Classification challenges under Section 1.8 of the executive order only apply to information that is “improperly classified.”

It is true that Section 3.1(d) does currently permit discretionary declassification of properly classified information by the original classifier when “questions arise” about whether the public interest outweighs the need to protect the information. But it provides no procedures for actually raising such questions, or for third-party review of the original classification decision.

So there is a gap in current policy with respect to the possibility of declassification of properly classified information.

We know that properly classified information is sometimes of such profound public interest that withholding it is undesirable and counterproductive. That was the conclusion that was eventually reached by Director of National Intelligence James R. Clapper concerning the program to collect telephone metadata (known as the 215 program) that was revealed in 2013 by Edward Snowden. DNI Clapper determined in retrospect that early disclosure of the 215 program would have been the best move from all points of view.(1) Yet as an ongoing intelligence surveillance program, it was properly classified under the terms of the executive order, and there was no effective procedure for raising and reconsidering the question of its declassification.

Therefore, I propose that the next executive order should include a provision that would allow members of the public to initiate an appeal to an entity other than the original classifying agency – perhaps a new ISCAP-like body, or an enhanced PIDB with its own declassification authority – and to argue that a category of information that is currently and properly classified should nevertheless be reviewed for declassification and disclosure in light of a compelling public interest. The reviewing entity – which must be independent of the original classifier in order to provide a fresh, unbiased assessment – would be tasked to weigh that larger public interest and to render judgment about whether or not to sustain, or modify, the original classification.

What types of classified information might be subject to such procedures? Notionally, they include intelligence supporting a U.S. decision to engage in military operations, the conduct of detention and interrogation activities, the casualties arising from targeted killing operations, and other categories of information that may be squarely within the boundaries of information that is otherwise properly classified, but that are also of momentous public interest.

A process to enable deliberate declassification of such information should be incorporated in the next executive order.

2. Create a test-bed for new classification policies

Although President Obama spoke in 2009 of pursuing “a more fundamental transformation of the security classification system,” such a transformation has not yet occurred. In part, that is because the current system continues to serve a basic information security function and, in part, because superior alternative approaches have not been devised, tested or validated in practice so that they could be adopted.

It is time to undertake that task of creating the “next” national security classification system.

The current executive order is unlikely to be replaced all at once by an order that prescribes a wholly new and different system. Rather, new approaches may be chosen once they have been proven effective on a small scale. It will be necessary to “build a bridge” to the next classification system through trial and error.

So the next executive order should mandate  the development and testing of “next-generation” classification and declassification procedures on a trial basis.

Of course, it is not enough that these procedures be new and different. They must also meet other criteria such as: simplicity, cost-effectiveness, ease of use, responsiveness to oversight, robust error correction, minimized scope and duration of control (in the case of classification), and increased productivity (in the case of declassification).

Among the kinds of measures that could be evaluated and certified for broader use are emerging technological approaches to facilitating classification and declassification, radical reductions in formal controls on information, expanded authority to declassify, traceability of classification throughout the information life cycle, increased flexibility in authorized access, and so forth.

Who should perform such development and testing? The Department of Defense, which is the largest generator of classified information, would seem to be a logical choice.

Within DoD, there is a Strategic Capabilities Office (SCO) that is tasked to pursue “disruptive applications and new and unconventional uses of existing system and near-term technologies” including “program information management strategies, objectives and technologies.”(2)

While national security classification policy has not been considered part of the SCO portfolio up to now (and it may not want the job), this Office might be a good fit particularly because of its emphasis on practical innovation.

(1) See Eli Lake, “Spy Chief: We Should’ve Told You We Track Your Calls,” The Daily Beast, February 17, 2014; available at http://www.thedailybeast.com/articles/2014/02/17/spy-chief-we-should-ve-told-you-we-track-your-calls.html

(2) DoD Directive 5105.86, Director, Strategic Capabilities Office (SCO), November 14, 2016; available at http://www.dtic.mil/whs/directives/corres/pdf/510586_dodd_2016.pdf

We are pleased to forward the news that Mark A. Bradley was named as the new Director of ISOO, and therefore is the new Executive Secretary of the PIDB.  His new role will become effective December 25, 2016.

Mr. Bradley is currently the Director of FOIA (Freedom of Information Act), Declassification, and Pre-publication Review, National Security Division, Office of Law and Policy at the Department of Justice (DOJ). In that capacity, he chairs the DOJ’s Department Review Committee, serves as its Interagency Security Classification Appeals Panel (ISCAP) representative, sits on its Access Review Committee, which hears and decides security clearance revocation appeals, and handles a variety of other special assignments. While at the Department, he has also served as the Deputy Counsel for Intelligence Policy, the Acting Chief for Intelligence Oversight, and the Director of the National Security Division’s FOIA/Declassification unit. He has been a member of the Federal government’s Senior Executive Service since 2003.

Before joining the Department of Justice in November 2000, he served as Senator Daniel Patrick Moynihan’s legislative assistant for foreign affairs and intelligence matters and as his last legislative director. He co-drafted the legislation that established the Public Interest Declassification Board. Mr. Bradley, who remains a member of the District of Columbia Bar, has also worked as a criminal defense lawyer in the District of Columbia defending indigents accused of serious crimes.

The Society for History in the Federal Government awarded A Very Principled Boy, his biography of Soviet spy Duncan Lee, its 2015 George Pendleton Prize for being the best book written by a federal historian in 2014.

Mr. Bradley is a Phi Beta Kappa graduate of Washington & Lee University and holds an M.A. in Modern History from Oxford University, which he attended as a Rhodes Scholar, and a J.D. from the University of Virginia.

The PIDB extends its sincere congratulations and welcome to Mark in his new role at ISOO and on the PIDB!

Join us and REGISTER for the next public meeting of the PIDB!

When: Thursday, December 8, 2016 from 9:00 a.m. – 11:00 a.m.

Doors Open: 8:45 a.m.

Where: The Archivist’s Reception Room, Room 105, National Archives and Records Administration

Address: 700 Pennsylvania Avenue, NW, Washington, DC (Enter through the Pennsylvania Ave. Lobby)

The Public Interest Declassification Board (PIDB) will hold a public meeting to discuss recommendations for improved transparency and open government for the new Presidential Administration.  The PIDB is soliciting ideas for revising Executive Order 13526, “Classified National Security Information” in support of reducing over-classification, improving declassification, and ensuring a credible and transparent security classification system.  More details about our presenters will be available in the coming weeks.

We will allot time for questions and comments from the public.

This meeting is open to the public. However, due to space limitations and access procedures, we require individuals planning to attend the meeting to register on Eventbrite.

Attendees must enter through the Pennsylvania Avenue entrance. Please note we require one form of Government-issued photo identification (e.g. driver’s license) to gain admittance. For questions about accessibility or to request accommodations, please contact the PIDB staff at 202-357-5342 or pidb@nara.gov. One week advance notice will allow us to provide the best access accommodations.

Press may contact NARA’s Public Affairs Office at 202-357-5300.

Be sure to stay connected to the Board’s activities and look for more information about the Board on its website and its blog, Transforming Classification.  

Have questions about Public Meeting of the Public Interest Declassification Board? Contact the Public Interest Declassification Board.

The PIDB hosted a public meeting on Thursday, June 23, 2016 at the National Archives.  The meeting was an opportunity to engage publicly with White House leadership on progress in developing a technology investment strategy for the management of classified information.  The meeting was also a chance to hear comments from current and former members of the PIDB and have a dialog with civil society groups, government stakeholders and the public on the work of the PIDB.  You may view the meeting here and its transcript here.

Mr. John Fitzpatrick, Senior Director for Records Access and Information Security Management at the National Security Council, provided a summary of the progress he is making to instigate White House commitment to improving declassification through the use of technology.  Mr. Fitzpatrick provided an update on the collaborative work of the Classification Reform Committee and the Office of Science and Technology Policy to build a cross-agency program leveraging technology and altering long-standing policy and practice.  This is a challenge never before addressed at this level of government.  Mr. Fitzpatrick indicated the expressed interest of the President has incentivized the Executive Branch to complete the framework for the technology investment strategy in order to ensure the long-term sustainability of a new program in the years ahead.

The impetus for White House-level commitment in building a technology strategy stemmed from previous recommendations made by the PIDB.  The members have recommended in all of their previously published reports the need for the government to seriously commit to improved technology for the specific purpose of modernizing classification, declassification and records management.  In an effort to expand on these ideas, the PIDB published its newest white paper, The Importance of Technology in Classification and Declassification.  The white paper describes the work of the PIDB to study in-depth agency declassification technology initiatives.  It summarizes findings made by the PIDB’s Declassification Technology Working Group to understand how ready agencies are for managing classified information in the digital age and what challenges, barriers and opportunities exist for modernization across the government.  The narrative also makes more specific recommendations on next steps and addresses the needs of agencies, including the requirement of more resources to fund technology investment for these programs.

The public meeting was also an opportunity for the public to hear from the members.  Nancy Soderberg, the PIDB’s outgoing Chair, had an opportunity to provide observations from her time on the PIDB, including giving candid commentary on the need for immediate action by the White House to provide resources and solidify a policy and strategy for improved technology investment for classification, declassification and records management.  The PIDB’s Acting Chair, William Leary, also announced the impending appointments of new members James E. Baker and Trevor W. Morrison (who will also be the PIDB’s new chair).

The PIDB will continue its engagement with civil society groups and the public in the coming months as it begins discussing what policy recommendations it will make to the incoming Administration concerning transformation.  Please continue to remain engage with the work of the PIDB through its blog and website.