Executive Order Preferred Over Congressional Action p. 20

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By: Debra Gersh Hernandez

Many witnesses at House hearing on proposed bill regarding
the classification of government documents suggest waiting
for expected Clinton order before getting lawmakers involved sp.

CONGRESS MAY HAVE the authority to legislate policy regarding the classification of documents, but witnesses at a recent Capitol Hill hearing suggested that lawmakers wait to see what is in an expected executive order from the president.
Since the 1940s, setting policy for classification of documents has come from executive orders issued by the president.
It followed, then, that policy was subject to change in each new administration; in fact, it changed three times during the past five administrations, one expert said. The current policy, being rewritten by President Clinton, was set by President Reagan in 1982.
Two bills, one in the House and one in the Senate, are seeking more stability and openness by relegating at least some of that policy authority to Congress.
The House Permanent Select Committee on Intelligence recently held a hearing on its bill, H.R. 3927, the Information Classification Act of 1994, sponsored by committee chairman Rep. Dan Glickman (D-Kan.).
The bills in the House and in the Senate ? S. 1885, the Security Classification Act of 1994, sponsored by Sen. Dennis DeConcini (D-Ariz.) ? are very similar. Both provide for set periods of classification, with limited renewals and automatic disclosure, as well as codify rules for initial classification (E&P, March 12, p. 14).
As Glickman pointed out in his opening statement, “In a report released late last year, the General Accounting Office estimated that in 1991, direct costs associated with protecting classified information exceeded $350 million.”
In later comments, Glickman said he did not doubt that White House officials were working on the executive order in good faith. “I fear they will be working on it in good faith for months and months and months,” he said.
Noting that at least two reports on classification were actively under review, CIA general counsel Elizabeth Rindskopf was among those who urged the committee to “defer any legislative action until the administration has finished its own review, which we will endeavor to do expeditiously.”
Nevertheless, Rindskopf’s testimony indicated that the bill raises separation of powers concerns, and she believes that such policy belongs in an executive order.
“An executive order is more flexible and allows an administration to ‘correct to windage’ when trying new ideas,” she stated in written testimony. “Executive flexibility is essential in a world where, with the end of the Cold War, our country faces threats not contemplated in the old bipolar world and perhaps not even yet apparent.”
Rindskopf outlined three concerns that she has with the proposal:
? Any declassification policy must recognize the CIA director’s “authority to protect intelligence sources and methods from unauthorized disclosure.”
? The process of reviewing sensitive information would be costly and resource-intensive, making it particularly “difficult to conduct in an era of downsizing and dwindling resources.”
? It is imperative that only the originating agency have the authority to release documents in order to prevent unauthorized disclosure of information that should be kept secret.
In addition, the CIA lawyer suggested that certain categories of information, such as sources and methods, be exempt from automatic declassification as mandated under the bill.
Rindskopf said she believed that there is an opportunity for shared responsibility between the legislative and executive branches in this area but the president must have significant responsibility.
While changes are under way, those changes could be frustrated if the executive is locked in by legislation, said John Elliff, director/counterintelligence and security programs, Office of the Deputy Assistant Secretary of Defense (Intelligence), Office of the Assistant Secretary of Defense (Command, Con-trol, Communications and Intelligence).
“It is clear to the Department of Defense that there is need to modify many of our existing security policies and practices,” he noted in written remarks. “There is a realization that there is an opportunity to introduce fundamental changes in a way that will not endanger national security but may result in cost savings as well as increased public disclosure.”
On behalf of the Defense Department, Elliff said it would be “premature” to discuss particular suggestions for legislation while the administration continues to review reports from the review task force and the Joint Security Commission, but he offered to testify again at a later date.
Scholars and legal experts told the committee that reform was needed, and they agreed that Congress has the authority to take action.
Congress previously has legislated policies and procedures regarding official secrecy that are similar to classification procedures established by presidential directives.
However, for more than 50 years, security classification policy and procedures have been set by executive orders from the president, explained Harold Relyea, a specialist in American national government in the Government Division of the Congressional Research Service at the Library of Congress.
“Only in the past couple of decades has Congress evidenced much interest in legislatively supplementing or displacing presidential executive orders prescribing security classification policy and procedure,” he stated in prepared testimony.
Relyea noted that legislating such policy “could result in a better-crafted product” and it could “bring an element of stability to this area of responsibility.”
He suggested, “Congress could legislate portions of a security classification program, establishing minimal standards and procedure and leaving the president or his agent discretion to prescribe additional operational details not inconsistent with statutorily mandated policy.”
The American Civil Liberties Union also urged the committee to hold off on legislation until the executive order has been drafted.
“When a draft order is presented to the committee, we urge you to review it carefully to ensure that it will adequately serve the public interest in disclosure of important government information and that it will not result in the continuation of undemocratic secrecy,” said Kate Martin, director of the ACLU’s Center for National Security Studies.
“If the proposed order does not accomplish these ends, the committee should proceed with legislation to protect the public’s right to know,” she said.
“On the other hand, should the provisions of the proposed order be adequate, we would urge the committee to then consider legislation to codify the president’s proposals in order to protect the public interest from future executive branch pressure.”
Martin said the ACLU sees “no constitutional impediment to enacting a statutory classification scheme to protect the public’s right to know . . . . Given bureaucratic and political pressures and the history of excessive secrecy over the past 45 years, we are convinced that in the end, statutory reform is the only true protection for the public’s First Amendment rights.”
Another reason for reworking classification regulations is public opinion, said Steven Aftergood of the Federation of American Scientists.
“Secrecy evokes public skepticism even when it is clearly justified,” he testified.
“If the classification system cannot be rendered responsive to the public interest, it will soon be useless. A secrecy system that continues to classify World War I documents or that keeps the aggregate intelligence budget an official secret or that routinely practices active deception will ultimately be defied and defeated by the American public,” Aftergood explained.

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