Declassifying Government Information p.89

By: Debra Gersh Hernandez President Clinton signs order reducing the amount of secrecy
permitted and releasing millions of classified documents sp.

PRESIDENT BILL CLINTON has signed an executive order that revamps the government's system for classifying documents.
Two years in the making, the order calls for a presumption of openness and will automatically declassify millions of documents while making it harder to classify material in the future.
"In issuing this order, I am seeking to bring the system for classifying, safeguarding and declassifying national security information into line with our version of American democracy in the post-Cold War world," the president stated.
The new executive order, which takes effect 180 days from its April 17 signing, replaces one signed by President Ronald Reagan in April 1982 that was much stricter.
"This order strikes an appropriate balance," Clinton's statement read.
"On the one hand, it will sharply reduce the permitted level of secrecy within our government, making available to the American people and posterity most documents of permanent historical value that were maintained in secrecy until now," he stated.
"On the other, the order enables us to safeguard the information that we must hold in confidence to protect our nation and our citizens," Clinton added, noting that the order "also will reduce the sizable costs of secrecy ? the tangible costs of needlessly guarding documents and the intangible costs of depriving ourselves of the fullest possible flow of information."
According to information from the White House, the cost of protecting national security information in government and industry is more than $16 billion per year.
The president pointed out a number of "firsts" in the new system: "Classifiers will have to justify what they classify; employees will be encouraged and expected to challenge improper classification and [will be] protected from retribution for doing so; and large-scale classification won't be dependent on the availability of individuals to conduct a line-by-line review."
The order also cites exceptions, when "the need to protect such information may be outweighed by the public interest in disclosure of the information," and stated that in these cases the information should be declassified.
Agency officials will be asked to weigh "whether the public interest in disclosure outweighs the damage to national security that might reasonably be expected from disclosure."
Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, called the presumption toward declassification "without a doubt, the most significant aspect" of the order.
"In the old executive order, it said if there was any doubt, it should be provisionally classified. Here, we have an order saying if there is any doubt, it should not be classified.
"That is a big change, and a very significant one," she said.
Under the new order, within the next five years there will be automatic declassification of documents more than 25 years old or of permanent historical value, even if the documents have not been reviewed.
Exemptions include confidential sources; cryptologic or weapons systems; information assisting the development and use of weapons of mass destruction; U.S. war plans in effect; diplomatic relations or international treaties; the ability to protect the president and other officials; and national security and emergency preparedness.
The automatic declassification "is very good," Kirtley said.
"We all could quibble about 25 years or 10 years, but at least there's been a move to something," she noted, that cannot be held up by complaints of personnel or resource shortages.
"In the past, the argument was made that 'We'd love to declassify it, but we simply don't have the people to do it,' "
she said, alluding to a requirement in the previous order that called for a line-by-line review before declassification.
"Now, when that 25th year comes, this will declassify it unless [the agency] takes some action to prevent disclosure," she noted.
Kirtley said she remains skeptical of some of the broad-based exemptions and was "a little disappointed to see some of the same, tired, old war-horse categories that are carry-overs from the Cold War."
Heartening was the edict that the secretary of state make an effort to compromise when it comes to releasing foreign government information, as opposed to hiding behind the stricter regulations of another nation, she added.
"That's new. We've never seen anything like that before. It's getting us closer to where we ought to be," Kirtley said.
Agency directors must notify the president, through the assistant to the president for national security affairs, of information that should be exempted. They must also come up with a plan, including target dates, for declassifying within one year at least 15% of the records affected by the order and for subsequent years until automatic declassification kicks in.
The Reagan order did not automatically declassify information and called on the National Archives to review classified material that was historically valuable after 30 years.
The classifying authority is instructed to establish, when feasible, a specific date or event for declassification. But when that cannot be done, information that is not exempted will be declassified after 10 years. The 10 years can be extended for periods not to exceed 10 years at a time.
Appearing on each classified document must be the level of its classification, the person who classified it, and the agency of its origin, declassification instructions (such as the date it is to be declassified), and a reason why it was classified, unless that would reveal classified information.
In cases where there is "significant doubt" about whether to classify information, it shall remain unclassified. Similarly, if there is doubt as to whether to classify a document as Top Secret, Secret or Confidential, it will be classified at the lower level.
Those given the authority by the order to classify documents are required to receive training for that task.
Further, the order states, "Authorized holders of information who, in good faith, believe that its classification status is improper, are encouraged and expected to challenge the classification status of the information in accordance with agency procedures."
Each agency head or director is ordered to establish procedures for such challenges, ensuring that the challenger is not subject to retribution, that there is a review by an impartial official or panel, and that individuals are aware of their right to appeal.
The responsibility for implementing and reviewing the order will fall to the Information Security Oversight Office in the Office of Management and Budget.
In addition, an Interagency Security Classification Appeals Panel will be established, to set the rules and procedures for considering classification appeals, and an Information Security Policy Advisory Council will provide ongoing advice from nongovernment officials.
Kirtley noted that while anything that moves the process out of the judicial arena could help bring it to a quicker resolution, she hesitated giving the panel her "wholehearted endorsement.
"Assuming it is up and operational with good people, it would be a good thing. I'm not sure that can happen," she said, pointing out that it is a whole new structure.
"From a pragmatic viewpoint, I'm not sure it will be able to work. More power to them if they can," Kirtley said.
Agency heads are instructed to "demonstrate personal commitment" to implementation of the order and commit the resources necessary, and sanctions will be levied for overclassification.
"I don't think we should ever underestimate the impact of agency heads," Kirtley said. "I do believe it is tremendously important. If they take that directive to heart and seek to implement it, it is possible the order will take effect quickly . . . . If they make it a priority, it is going to happen. That has great potential."
Kirtley also lauded the levying of sanctions against those who overclassify.
"There really does seem to be an attempt here to sanction employees who wrongfully withhold information, as well as those who wrongfully disclose information," she noted. "That's good."
The only categories of information to be considered for classification under the new order are military plans, weapons systems or operations; foreign government information; intelligence activities (including special activities), intelligence sources or methods, or cryptology; foreign relations or foreign activities of the U.S., including confidential sources; scientific, technological or economic matters relating to national security; U.S. government programs for safeguarding nuclear materials or facilities; and vulnerabilities or capabilities of systems, installations, projects or plans relating to national security.
"In no case," the order states, "shall information be classified in order to conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency; restrain competition; or prevent or delay the release of information that does not require protection in the interest of national security."


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