Managing Secrecy: Security Classification Reform - The Government Secrecy Act Proposal

98-298 GOV

CRS Report for Congress

Received through the CRS Web

Managing Secrecy:

Security Classification Reform—The

Government Secrecy Act Proposal

Revised July 8, 1998

Harold C. Relyea

Specialist in American National Government

Government Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT

The end of the Cold War, heightened interest in effecting greater economy and better

management in security classification operations, and the considered recommendations of

a national study commission on official secrecy have all contributed to the proposed

Government Secrecy Act (H.R. 1546/S. 712), introduced on a bicameral, bipartisan basis

to establish, for the first time, a statutory mandate for security classification and

declassification. This report follows the development and progress of this legislation and

will be updated as events warrant.

Managing Secrecy: Security Classification Reform—The

Government Secrecy Act Proposal

Summary

The end of the Cold War, heightened interest in effecting greater economy and

better management in government operations, and the considered recommendations

of a national study commission on official secrecy have all contributed to legislation

reforming the security classification program and giving it a statutory foundation.

Largely prescribed in a series of successive presidential executive orders issued over

the past 50 years, security classification policy and procedure provide the rationale

and arrangements for designating information officially secret for reasons of

protecting the security of the nation.

Legislating a statutory security classification system was first recommended in

1973 by the House Committee on Government Operations in its third report to the

93rd Congress. Proponents of such a proposal view it as the mandating of a program

in accordance with constitutionally prescribed legislative procedure. The resulting

statute would also afford Congress a stronger role in oversight of the program,

including its efficiency and economy of operation. Prior to the 105th Congress, the

prospect of legislating a statutory basis for classifying information was most recently

considered by a House committee in 1994.

Current bipartisan and bicameral reform efforts concentrating on the proposed

Government Secrecy Act (S. 712/H.R. 1546) evidence renewed congressional interest

in establishing a statutory mandate for security classification and declassification.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Classification History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Congressional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Reform Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Legislation Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pro/Con Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pros . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Responsible Information Protection . . . . . . . . . . . . . . . . . . . . . . . . . 11

Balanced Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Automatic Declassification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Cons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Nebulous Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Stronger Congressional Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Managerial Uncertainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Legislative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Additional Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Managing Secrecy:

Security Classification Reform—The

Government Secrecy Act Proposal

The end of the Cold War, heightened interest in effecting greater economy and

better management in government operations, and the considered recommendations

of a national study commission on official secrecy have all contributed to legislation

reforming the security classification program and giving it a statutory foundation.

The current reform proposal, the Government Secrecy Act (S. 712/H.R. 1546), has

been introduced in the 105th Congress on a bipartisan, bicameral basis by the

congressional members of the Commission on Protecting and Reducing Government

Secrecy. The background context of this legislation, the issues attending it, and its

progress in the present Congress constitute the content of this report.

Introduction

The protection of government information vital to the defense and security of

the nation has long been a matter of federal policy and practice. Several

arrangements have been developed in this regard, including encryption, document

registry, and security classification. The last of these is the practice of designating

information officially secret in accordance with policy criteria and, usually, at one of

three levels of sensitivity—Top Secret, Secret, or Confidential. Consequently, such

information may be available to authorized individuals, that is, those who have been

granted a security clearance for the level of information sensitivity involved and who

have a “need to know” or, in other words, require access in order to perform their

duties.

As the history of security classification policy indicates, Congress long deferred

to armed forces regulations as a basis for establishing the principles and practices of

official secrecy. In 1857, the President was statutorily empowered

to prescribe such regulations, and make and issue such orders and instructions,

not inconsistent with the Constitution or any law of the United States, in relation

to the duties of all diplomatic and consular offices, the transaction of their

business ..., the safekeeping of the archives, the public property in the hands of

all such officers [and] the communication of information ... from time to time,

as he may think conducive to the public interest.1

1

11 Stat. 52, at 60.

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With the arrival of the 20th century, Congress enacted criminal punishments for

the improper disclosure of national defense secrets in 19112 and, again, in 1917.3 It

was also in 1917 that both the Commissioner of Patents4 and the President5 were

statutorily authorized to make secret those patent applications which, if disclosed,

might be “detrimental to the public safety or defense, or may assist the enemy or

endanger the successful prosecution of the war.”

In 19466 and in 1954,7 Congress legislated the required protection of certain

atomic energy information, denominated Restricted Data, from the moment of its

creation. Generally speaking, Restricted Data was understood to have military or

weapons production value. Because such information is “born secret,” an affirmative

determination of the government is necessary for it to be removed from its privileged

status.

In 19478 and, again, in 1949,9 Congress required the Director of Central

Intelligence to protect “intelligence sources and methods from unauthorized

disclosure.”

Classification History

Security classification principles and procedures, as noted above, were initially

expressed in armed forces regulations, the first such directive creating a prototype

security classification system appearing in early 1912. Security classification policy

assumed a presidential character in 1940. The reasons for this late development are

not entirely clear, but it probably was prompted by desires to clarify the authority of

civilian personnel in the national defense community to create official secrets, to

establish a broader basis for protecting military information in view of growing

global hostilities, and to manage better a discretionary power of increasing

importance to the entire executive branch.

Relying upon a 1938 statute concerning the security of armed forces

installations and equipment and “information relative thereto,”10 Franklin D.

Roosevelt issued the first presidential security classification directive, E.O. 8381, in

March 1940. However, the legislative history of the statute which the President

relied upon to issue his order provided no indication that Congress anticipated that

such a security classification arrangement would be created.

2

36 Stat. 1084.

3

40 Stat. 217.

4

40 Stat. 394.

5

40 Stat. 411, at 422.

6

60 Stat. 755, at 766.

7

68 Stat. 919, at 940.

8

61 Stat. 495, at 498.

9

63 Stat. 208, at 211.

10

52 Stat. 3.

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Other executive orders followed. E.O. 10104, adding a fourth level of classified

information, aligned U.S. information security categories with those of our allies in

1950. A 1951 directive, E.O. 10290, completely overhauled the security

classification program. Information was now classified in the interest of “national

security,” and classification authority was extended to non-military agencies which

presumably had a role in “national security” policy.

Criticism of the 1951 order prompted President Dwight D. Eisenhower to issue

a replacement, E.O. 10501, in November 1953. This directive and later amendments

to it, as well as E.O. 11652 of March 8, 1972, and E.O. 12065 of June 28, 1978,

successively narrowed the bases and limited discretion for assigning official secrecy

to agency records.

Shortly after President Ronald Reagan issued E.O. 12356 on April 2, 1982, it

was criticized for reversing the limiting trend set by prior security classification

orders of the previous 30 years by expanding the categories of classifiable

information, mandating that information falling within these categories be classified,

making reclassification authority available, admonishing classifiers to err on the side

of classification, and eliminating automatic declassification arrangements.

With the democratization of many eastern European countries, the demise of the

Soviet Union, and the end of the Cold War, President William Clinton ordered a

sweeping review of Cold War rules on security classification in general and of E.O.

12356 in particular with a view to reform.11

Many began to suspect that the security classification program could be

improved when the Department of Defense Security Review Commission, chaired

by retired General Richard G. Stilwell, declared late in 1985 that there were “no

verifiable figures as to the amount of classified material produced in DoD and in

[the] defense industry each year.” Nonetheless, it was concluded that “too much

information appears to be classified and much at higher levels than is warranted.”12

The cost of the security classification program became clearer when the General

Accounting Office reported in October 1993 that it was “able to identify

governmentwide costs directly applicable to national security information totaling

over $350 million for 1992.” After breaking this figure down—it included only $6

million for declassification work—the report added that “the U.S. government also

spends additional billions of dollars annually to safeguard information, personnel,

and property.”13

11

Tim Weiner, “President Moves to Release Classified U.S. Documents,” New York Times,

May 5, 1993, p. A18.

12

U.S. Department of Defense, Department of Defense Security Review Commission,

Keeping The Nation’s Secrets (Washington: DOD, 1985), pp. 48-49.

13

U.S. General Accounting Office, Classified Information: Costs of Protection Are

Integrated With Other Security Costs, GAO report GAO/NSIAD-94-55 (Washington:

October 1993), p. 1.

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Established in April 1993, President Clinton’s security classification task force

transmitted its initial draft order to the White House seven months later. Circulated

among the departments and agencies for comment, the proposal reportedly

encountered strong opposition from officials within the intelligence and defense

communities.14 More revision of the draft directive followed.

As delay in issuing the new order continued, some in Congress considered

legislating a statutory basis for classifying information in the spring of 1994.15 In the

fall, the President issued an order declassifying selected retired records at the

National Archives.16 Then, after months of unresolved conflict over designating an

oversight and policy direction agency, a compromise version of the order was given

presidential approval on April 17, 1995.17

Congressional Interest

Only in the past quarter century has Congress evidenced interest in

supplementing or displacing presidential executive orders prescribing security

classification policy and procedure. Legislating a statutory security classification

system was first recommended in 1973 by the House Committee on Government

Operations in its third report to the 93rd Congress.18 The following year, various

bills to effect this proposal were introduced in both houses of Congress, and several

days of hearings on them were held by committees of jurisdiction.19 Proponents of

such bills view them as mandating a program in accordance with constitutionally

prescribed legislative procedure. The resulting statute would also afford Congress

a stronger role in oversight of the program, including its efficiency and economy of

operation. Prior to the 105th Congress, the prospect of legislating a statutory basis

14

See David C. Morrison, “For Whose Eyes Only?” National Journal, vol. 26, Feb. 26,

1994, pp. 472-476; Tim Weiner, “U.S. Plans Overhaul on Secrecy, Seeking to Open

Millions of Files,” New York Times, Mar. 18, 1994, pp. A1, B6; R. Jeffrey Smith, “CIA,

Others Opposing White House Move to Bare Decades-Old Secrets,” Washington Post, Mar.

30, 1994, p. A14.

15

See U.S. Congress, House Permanent Select Committee on Intelligence, A Statutory Basis

for Classifying Information, hearing, 103rd Cong., 2nd sess., Mar. 16, 1994 (Washington:

GPO, 1995).

16

See E.O. 12937, in Federal Register, vol. 59, Nov. 15, 1994, pp. 59097-59098.

17

See E.O. 12958, in Federal Register, vol. 60, Apr. 20, 1995, pp. 19825-19843.

18

U.S. Congress, House Committee on Government Operations, Executive Classification

of Information—Security Classification Problems Involving Exemption (b)(1) of the

Freedom of Information Act (5 U.S.C. 552), 93rd Cong., 1st sess., H. Rept. 93-221

(Washington: GPO, 1973), p. 104.

19

See U.S. Congress, Senate Committee on Government Operations, Legislation on

Government Secrecy, committee print, 93rd Cong., 2nd sess. (Washington: GPO, 1974);

U.S. Congress, Senate Committee on Government Operations, Government Secrecy,

hearings, 93rd Cong., 2nd sess., May 22, 23, 29, 30, 31, and June 10, 1974 (Washington:

GPO, 1974). Also see U.S. Congress, House Committee on Government Operations,

Security Classification Reform, hearings, 93rd Cong., 2nd sess., July 11, 25, and Aug. 1,

1974 (Washington: GPO, 1974).

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for classifying information was most recently considered by a House committee in

1994.20

That Congress might legislate in this area had been suggested in a 1973 majority

opinion of the Supreme Court.21 Earlier, in a 1952 concurring opinion in the

Youngstown case, Associate Justice Robert H. Jackson had observed that there is a

“zone of twilight” in which the President and Congress “may have concurrent

authority, or in which its distribution is uncertain.”22 Security classification policy

and procedure would appear to occupy such a “zone of twilight.”

Reform Proposals

The security classification system modifications—including a statutory mandate

for the program—embodied in the proposed Government Secrecy Act (S. 712/H.R.

1546), the reform bill offered in the 105th Congress, derive from the

recommendations of the Commission on Protecting and Reducing Government

Secrecy. This temporary study panel was mandated in Title IX of the Foreign

Relations Authorization Act, Fiscal Years 1994 and 1995. The provision establishing

the commission was included in a version of the authorization legislation developed

by the Senate Committee on Foreign Relations which was introduced as an original

bill (S. 1281) on July 23, 1993, the same day the committee report on the measure

was submitted.23 The commission’s mandate cleared the conference committee, was

approved by both Houses, and became law when the President signed the

authorization legislation on April 30, 1994.24

Established for a two-year period, the commission was charged:

(1) to examine the implications of the extensive classification of

information and to make recommendations to reduce the volume of

information classified and thereby to strengthen the protection of

legitimately classified information; and

(2) to examine and make recommendations concerning current

procedures relating to the granting of security clearances.

Popularly known as the Commission on Government Secrecy, its 12 members

included:

20

U.S. Congress, House Permanent Select Committee on Intelligence, A Statutory Basis for

Classifying Information, hearing, 103rd Cong., 2nd sess., Mar. 16, 1994 (Washington: GPO,

1995).

21

Environmental Protection Agency v. Mink, 410 U.S. 73, at 83 (1973).

22

Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579, at 637 (1952).

23

Congressional Record, daily edition, vol. 139, July 23, 1993, pp. S9367, S9372.

24

108 Stat. 382; the commission’s charter appears at 108 Stat. 525 and is reproduced in

U.S. Commission on Protecting and Reducing Government Secrecy, Report of the

Commission on Protecting and Reducing Government Secrecy (Washington: GPO, 1997),

Appendix B.

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! Four members appointed by President Clinton—John M. Deutch, then

Director of Central Intelligence and previously Deputy Secretary of Defense;

John D. Podesta, Assistant to the President at the White House Office;

Richard K. Fox, Jr., a career foreign service officer and former Senior Deputy

Inspector General of the Foreign Service; and Ellen Hume, a veteran national

journalist and executive director of the Public Broadcast System’s Democracy

Project;

! Two

members appointed by Senate Majority Leader George

Mitchell—Senator Daniel P. Moynihan and Harvard University national

security and international affairs professor Samuel P. Huntington;

! Two members appointed by Senate Minority Leader Robert Dole—Senator

Jesse Helms, Ranking Minority Member and later chairman of the Committee

on Foreign Relations, and Alison B. Fortier, a Lockheed Martin Corporation

missile defense program director and former senior director of the National

Security Council staff under President George Bush;

! Two members appointed by Speaker of the House Tom Foley—

Representative Lee Hamilton, long a member and then chairman of the

Committee on Foreign Affairs, and Maurice Sonnenberg, an investment

banker with expertise in foreign policy, international trade, and foreign

investment, and an adviser to government officials on matters in these areas;

and

! Two members appointed by House Minority Leader Robert Michel—

Representative Larry Combest, a member and then chairman of the Permanent

Select Committee on Intelligence, and Martin C. Faga, a senior vice president

and general manager at the MITRE Corporation and former director of the

National Reconnaissance Office and Assistant Secretary of the Air Force for

Space.25

The statutory charter of the Commission on Government Secrecy provided that

the panel’s leaders be elected by its members from among themselves. This was

done at the commission’s initial meeting on January 10, 1995. Senator Moynihan

was chosen to be chairman and Representative Combest was elected vice chairman.

The commission held 13 en banc meetings, the first of which occurred on

January 10, 1995, when leaders were elected and commissioners were formally

introduced to one another. At the next meeting, on March 30, the commissioners

were officially sworn in and initial witnesses were heard. In May, June, and July, the

commission received the views of additional witnesses and its senior staff. A

meeting in October was devoted to staff presentations; an expert witness was heard

at a December session. In March and April 1996, the commission held a monthly

25

Profiles of the members of the commission appear in U.S. Commission on Protecting and

Reducing Government Secrecy, Report of the Commission on Protecting and Reducing

Government Secrecy, Appendix D.

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meeting with industry representatives. These industry deliberations were the panel’s

first hearings outside Washington, D.C.

The commission conducted a “Public Access Roundtable” at the National

Archives and Records Administration in May 1996. In July, November, and

December, the panel held monthly meetings to discuss, draft, and revise its final

report.26 On March 3, 1997, the commission’s final report was transmitted to

President Clinton and to the leadership of the House and the Senate.

In meeting the objectives of its charge, the commission, as stated in its final

report, sought “to promote both the effective protection of information where

warranted and the disclosure of information where there is not a well-founded basis

for protection or where the costs of maintaining a secret outweigh the benefits.”27

The panel expressed concern that the security classification system had become so

vast, so complex, and so burdensome that its ability to secure properly information

which should be protected had suffered.

The commission did not appear to believe that the reforms effected by E.O.

12958, issued by President Clinton in April 1995, produced the proper policy

balance, saying, “although the current executive order on classification places a

greater burden on those who seek to classify information, existing incentives still

tend to promote secrecy over openness.” What the panel found was “a system which

neither protects nor releases national security information particularly well.”28

In making its investigation, however, the commission admittedly “did not try to

examine every facet of the security system.” Some areas, such as “the myriad of

physical and technical security measures used to safeguard information,” had been

recently and thoroughly scrutinized, in its view, by other study panels. The

maintenance of secrecy in the legislative and judicial branches was also disregarded,

“except in areas that relate to the classification, declassification, personnel security

and information systems security criteria and procedures developed by the Executive

Branch.” Similarly, the panel did not probe “the impact of various government

security requirements on the private sector—including patent, trade secret, and other

invention secrecy rules and export control laws and regulations—except where they

relate directly to the protection of government secrets.”29

In addition, the commission did not address certain issues “best considered in

the context of a broader examination of intelligence roles and missions,” such as “the

appropriate status of the U.S. intelligence budget, role and conduct of covert actions,

procedures for intelligence sharing with allies and international organizations, and

26

Formal meetings of the commission, the activities and presentations of individual

commissioners and of commission staff, and the sources consulted by commission staff are

outlined in U.S. Commission on Protecting and Reducing Government Secrecy, Report of

the Commission on Protecting and Reducing Government Secrecy, Appendix F.

27

Ibid., p. 1.

28

Ibid.

29

Ibid., p. 3.

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relationships between intelligence and law enforcement objectives.” Again, these

matters, in the panel’s view, had been recently and thoroughly scrutinized by other

study bodies.30

The commission’s final report, transmitted to the President and the

congressional leadership and released to the public in early March 1997, offered 16

recommendations, unanimously approved by the commission.31

! Statutorily establish the basic principles of security classification and

declassification programs.

! Implement within one year a single set of security standards for special access

programs.

! Take certain specific actions to enhance the proficiency of classifiers and

improve their accountability by requiring additional information on the

rationale for classification, by improving classification guidance, and by

strengthening training and evaluation programs.

! Base classification decisions, including the establishment of special action

programs, on a range of factors in addition to damage to the national security,

such as the cost of protection, vulnerability, threat, risk, value of the

information, and public benefit from release.

! Assign

responsibility for classification and declassification policy

development and oversight to a single executive branch body, designated by

the President and independent of the agencies that classify.

! Statutorily mandate a central office—a National Declassification Center—at

an existing agency to coordinate federal declassification policy and activities.

! Clarify, through the issuance of an intelligence community directive by the

Director of Central Intelligence, the appropriate scope of sources and methods

protection as a basis for the continuing classification of intelligence

information.

! Restructure agencies’ records management programs and systematic

declassification programs to maximize access to records that are likely to be

the subject of significant public interest.

! Establish, by statute or regulation, five specified guiding principles as the

essential elements of an effective personnel security system.

30

31

Ibid.

The report was made available electronically at the Government Printing Office website,

http://www.access.gpo.gov/int.

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! Allow individuals in both government and industry holding valid security

clearances to move from one agency or special program to another without

further investigation or adjudication.

! Eliminate current requirements for neighborhood interviews and for

interviewing educational

investigation.

references

in

every

security

background

! Achieve greater balance between the initial security clearance process and

programs for continuing evaluation of cleared employees.

! Congress and the executive branch should reevaluate the requirement to

utilize a new financial disclosure form and consider staying its

implementation until there is further evaluation concerning how it would be

used and whether its benefits exceed its cost.

! Certain specified actions should be taken to encourage research on the

polygraph, to assess the credibility of the polygraph, and to identify potential

technological advances that could make the polygraph more effective in the

future.

! Revise the Computer Security Act of 1987 in certain specified ways to reflect

the realities of information systems security in the Information Age.

! Develop an information systems security career path across the federal

government.

Legislation to further the commission’s first, third, fourth, fifth, and sixth

recommendations was introduced in both houses of Congress on May 7, 1997. The

House legislation (H.R. 1546) was offered by Representative Hamilton for himself

and Representative Combest; the Senate proposal (S. 712) was introduced by Senator

Moynihan for himself and Senator Helms.32 The bills, denominated the Government

Secrecy Act of 1997, are identical.

Legislation Summary

32

Section 1:

provides the short title, the Government Secrecy Act of 1997.

Section 2:

states that the purpose of the act is to promote the effective

protection of classified information and the disclosure of

information where there is not a well-founded basis for

protection, or where the costs of maintaining a secret outweigh

the benefits.

Section 3:

expresses seven congressional findings, including the issuance

of the report of the Commission on Government, recommending

See Congressional Record, daily edition, vol. 143, May 7, 1997, pp. H2350, S4110S4114.

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that the volume of information classified be reduced and the

protection of classified information be strengthened; states that

the absence of a statutory framework has resulted in unstable

and inconsistent classification and declassification policies,

excessive costs, and inadequate implementation; states that

American taxpayers incur substantial costs—more than $5.2

billion in 1996—as several million documents are classified

each year; and states that the prospect that a statutory foundation

for the classification and declassification of information is likely

to result in a more stable and cost-effective set of policies, a

more consistent application of rules and procedures, and an

opportunity for greater oversight by Congress of classification

and declassification activities.

Section 4:

authorizes the President, in accordance with the act, to protect

from unauthorized disclosure, information in the possession and

control of the executive branch, when there is a demonstrable

need to do so in order to protect the national security of the

United States; directs the President to ensure that the amount of

information classified is the minimum necessary to protect the

national security; provides requirements for the establishment of

standards and procedures for classifying and declassifying

information; and requires each head of an agency that is

responsible for the classification and declassification of

information to submit to Congress each year a report describing

the application of the classification and declassification

standards and procedures of that agency during the preceding

fiscal year.

Section 5:

directs the President to establish within an existing agency a

National Declassification Center to (1) coordinate and oversee

the declassification policies and practices of the federal

government and (2) provide technical assistance to agencies in

implementing such policies and practices, in accordance with

the act; establishes the National Declassification Advisory

Committee to provide advice to the center and to make

recommendations concerning declassification priorities and

activities; and mandates annual reports by the center to the

President and Congress on its activities during the preceding

fiscal year, and on the implementation of agency declassification

practices and its efforts to coordinate those practices.

Section 6:

states that nothing in the act shall be construed to authorize the

withholding of information from Congress.

Section 7:

provides definitions of several terms used in the act.

Section 8:

states that the act shall take effect 180 days after the date of its

enactment.

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Constitutionality

The major threshold consideration concerning the enactment of a statutory

security classification-declassification program is the question of whether or not such

legislation breaches the separation of powers doctrine of the Constitution. Some may

contend that the President has long set security classification policy and practice

through executive orders, their issuance being an exercise of both Chief Executive

and Commander in Chief authority. Congressionally adopted legislation in these

matters not only creates a policy clash, but also encroaches upon the President’s

authority to determine such information protection arrangements.

Proponents of legislation establishing basic security classificationdeclassification policy and practice contend that such a proposal recognizes that

information protection arrangements fall in Justice Jackson’s “zone of twilight”

noted earlier. It is, in brief, a shared power. Moreover, Congress has previously

legislated in these matters, in regard to atomic energy information and intelligence

sources and methods, without constitutional question. Also, the Supreme Court

seems to have recognized congressional authority to legislate in this area.33 Finally,

the statutory classification-declassification program proposed in the Government

Secrecy Act was directly and unanimously recommended by a national study

commission which counted a high level intelligence and defense official of the

Clinton Administration and a senior Clinton White House staff assistant as members.

Pro/Con Considerations

Pros

Responsible Information Protection. The legislation makes the application

of security classification to official records on a standard of “demonstrable need to

... protect the national security of the United States” by requiring that classifying

officials identify themselves on documents marked for secrecy protection, and by

authorizing challenges to the need for secrecy protection.

Balanced Perspective. The legislation encourages a balanced perspective in

classification actions with a balancing test: classifiers shall “weigh the benefit from

public disclosure of the information against the need for initial or continued

protection of the information under the classification system.”

It also

institutionalizes expert views and assessments of classification/declassification

operations in an advisory committee with members selected on a bipartisan,

bicameral basis with presidential involvement.

Automatic Declassification. The legislation seeks to foster the efficiency,

economy, and integrity of the classification system by establishing automatic

33

See the discussion and citations in footnotes 6-9, 21, and 22 of this report.

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declassification schedules of 10- and 30-year maximums, while still permitting the

continued protection of a very limited quantity of records for a period longer than 30

years.

Cons

Nebulous Standard. The legislation specifies that classification may occur “in

order to protect the national security of the United States.” The “national security”

term is defined in the legislation to mean “the national defense or foreign relations

of the United States.” These terms, on their face and without further specificity, are

both ambiguous and overly broad. Their use would appear to be contrary to the

expectations of the Commission on Protecting and Reducing Government Secrecy,

which urged “that classification actions ... no longer be based solely on damage to the

national security” and encouraged that consideration, in this regard, be given to

factors such as “the cost of protection, vulnerability, threat, risk, value of the

information, and public benefit from release.”34

Stronger Congressional Role. The legislation authorizes the President to

establish unilaterally a National Declassification Center “within an existing agency.”

Congress is not provided any role in this action, even in the event the President

places the center in a seemingly inappropriate agency, such as one heavily engaged

in classification operations. Moreover, there is no allowance for a congressional

authorization of appropriations for the center, or Senate confirmation of the official

directing the center

Managerial Uncertainty. The legislation authorizes the establishment of a

National Declassification Center “to coordinate and oversee the declassification

policies and practices of the Federal Government” and to provide “technical

assistance,” but does not indicate where in the federal government similar

responsibilities for coordinating and overseeing classification policy and practice are

vested. If the legislation assumes that the Information Security Oversight Office

(ISOO), created by E.O. 12958 mandating the existing classification program, will

continue, inefficiencies and managerial conflicts seem likely to result. If the

legislation assumes the demise of ISOO, then responsibility for coordinating and

overseeing classification policy and practice is uncertain.

Legislative Action

Introduced in the Senate on May 7, 1997, as S. 712, the legislation was read

twice and referred to the Committee on Governmental Affairs. That same day, the

committee held a hearing on the report of the Commission on Government Secrecy.35

34

U.S. Commission on Protecting and Reducing Government Secrecy, Report of the

Commission on Protecting and Reducing Government Secrecy, p. C-1.

35

See U.S. Congress, Senate Committee on Governmental Affairs, Report of the

Commission on Protecting and Reducing Government Secrecy, hearing, 105th Cong., 1st

(continued...)

CRS-13

Introduced in the House on May 7, 1997, as H.R. 1546, the legislation was

referred to the Committee on Government Reform and Oversight, with some portions

also referred to the Permanent Select Committee on Intelligence and the Committee

on National Security for a period to be subsequently determined by the Speaker.

Within the Committee on Government Reform and Oversight, the bill was referred

to its Subcommittee on National Security, International Affairs, and Criminal Justice

on May 13. Executive comment on the legislation was requested from the

Department of Defense, the agency responsible for the largest number of

classification actions annually, on May 20.

In a March 3, 1998, colloquy on the Senate floor, both the Majority Leader and

the Minority Leader announced they were cosponsoring the legislation.36 The Senate

Committee on Governmental Affairs held a hearing on S. 712 on March 25.

Witnesses included Edmund Cohen, director of information management, Central

Intelligence Agency; Bill Leonard, director of security programs, Department of

Defense; Bryan Siebert, director of the Office of Declassification, Department of

Energy; Steven Garfinkel, director of the Information Security Oversight Office,

National Archives and Records Administration; Jeremy Gunn, executive director and

general counsel, President John F. Kennedy Assassination Records Review Board;

and Steven Aftergood, director of the Project on Government Secrecy, Federation of

American Scientists.

On June 17, the Committee on Governmental Affairs met to consider S. 712 and

adopted substitute language for the original text. The committee then ordered the bill

to be reported favorably with the amending language. The reported legislation,

according to a committee summary of the substitute text:

! Provides a statutory basis for [a] national security information classification system

by specifically authorizing the President to protect information from disclosure when

there is a demonstrable need to do so in order to protect U.S. national security

(similar to underlying bill);

! Authorizes the President to establish categories of information that may be

classified; categories must be developed by notice and comment (similar to

underlying bill);

! Authorizes agencies to implement the Act and the President’s categories by

establishing standards and procedures for classifying and declassifying information

(similar to underlying bill);

! Limits classification only to cases in which the harm to national security reasonably

expected from disclosure of the information outweighs the public interest in the

disclosure of the information (similar to underlying bill);

! Establishes criteria to guide agency classification decisions for conducting ther

balancing test between the harm to national security and the public interest in

35

(...continued)

sess., May 7, 1997 (Washington: GPO, 1997).

36

See Congressional Record, daily edition, vol. 144, Mar. 3, 1998, pp. S1249-S1253.

CRS-14

disclosure; the national security criteria are taken directly from the Clinton

Executive Order [E.O. 12958] and have been applied by agencies since 1995; the

public interest criteria are newly developed for the substitute (these criteria are not

in the underlying bill);

! Mandates written justification for original and derivative classification decisions

(similar to underlying bill);

! Establishes procedures similar to those of the current Clinton Executive Order on

declassification of information classified under the Act: the general rule is that

information will be subject to declassification review 10 years after classification;

at that time, information will either be declassified or it can be protected for another

15 years. At 25 years, it will be subject to another declassification review and must

be declassified at that time unless “extraordinary circumstances” require that it

remain classified. Information that remains classified beyond 25 years will be

subject to periodic review for declassification on a schedule established by the

President. The bill also provides a procedure in which agencies can, at the time of

classification, exempt information from the initial 10-year review if “there is no

likely set of circumstances under which declassification would occur” at the 10-year

review; such information would receive its initial declassification review at 25 years

(this process is derived from the current Executive Order and builds on the

provisions of the underlying bill, but is significantly more detailed);

! Makes a conforming amendment to exemption 1 of the Freedom of Information Act

[5 U.S.C. 552(b)(1)] (similar to underlying bill);

! Transfers the Information Security Oversight Office from the [National] Archives

to the Executive Office of the President, changes its name to the Office of National

Classification and Declassification Oversight, and beefs up its functions and

oversight responsibilities (not in underlying bill);

! Establishes a Classification and Declassification Review Board similar to the current

interagency review panel established by the Clinton Executive Order to hear agency

appeals from decisions of the Director of the Oversight Office (entirely new

provision not in underlying bill);

! Provides for appeal of Review Board decisions to the President and precludes

judicial review of agency classification and declassification decisions (entirely new

provision); [and]

! Clarifies that nothing in the bill shall be construed as authorizing the withholding of

information from Congress (similar to underlying bill).37

The bill now awaits Senate floor consideration.

37

U.S. Congress, Senate Committee on Governmental Affairs, “Summary of Committee

Substitute to S. 712,” undated.

Additional Reading

U.S. Commission on Protecting and Reducing Government Secrecy, Report of the

Commission on Protecting and Reducing Government Secrecy (Washington:

GPO, 1997).

U.S. Congress, House Permanent Select Committee on Intelligence, A Statutory

Basis for Classifying Information, hearing, 103rd Cong., 2nd sess., Mar. 16,

1994 (Washington: GPO, 1995).

U.S. Congress, Senate Committee on Governmental Affairs, Report of the

Commission on Protecting and Reducing Government Secrecy, hearing, 105th

Cong., 1st sess., May 7, 1997 (Washington: GPO, 1997).

U.S. General Accounting Office, Classified Information: Costs of Protection Are

Integrated With Other Security Costs, GAO report GAO/NSIAD-94-55

(Washington: October 1993).

U.S. Library of Congress, Congressional Research Service, Commission on

Protecting and Reducing Government Secrecy: A Brief Overview, by Harold C.

Relyea, CRS report 97-770 GOV (Washington: Aug. 11, 1997).

U.S. Library of Congress, Congressional Research Service, Security Classification

Policy and Procedure—E.O. 12958: The Clinton Administration Directive, by

Harold C. Relyea, CRS report 97-771 GOV (Washington: Aug. 12, 1997).