Obama declassification order rolls back Bush secrecy legacy

On Dec. 29, President Barack Obama issued Executive Order 13526, setting new standards for how “national security” information is to be kept secret by federal government agencies. The Obama order replaces Executive Order 12958, issued by President Clinton in 1995 and amended by President Bush in 2003. Obama’s order makes several significant changes to the policies of the two previous presidents, most notably in the treatment of historical materials more than 25 years old.

Clinton’s 1995 order provided simplified criteria for classifying information, universally applicable across the federal government. It set time limits on how long information could be classified, and required periodic declassification reviews. Its most dramatic provision, for “automatic declassification,” set a five-year time limit for agencies to review materials more than 25 years old, and transfer them to the National Archives. Any materials not reviewed by the five-year deadline were to be “automatically” declassified in bulk. This was intended as an enforcement tool, and to provide an incentive for agencies to put a higher priority on the boxes of old paperwork that were constantly piling up. Bill Clinton extended the deadline just before it was due, handing the problem to his successor, George Bush.

Although the Bush presidency is seen as secretive, and is noted for the “Ashcroft Memorandum,” instructing federal agencies to be less cooperative in processing Freedom Of Information Act (FOIA) requests, Bush made few changes to Clinton’s executive order on secrecy. The only provision worth note was one extending the deadline for automatic declassification for eight more years, beyond his term and into the term of Barack Obama. Obama has also extended the deadline to declassify 25-year-old records, which has now drifted from April of 2000 to December of 2013.

The 25 years run from the date of classification of the record. 2013 is the year by which the backlog of old records must be declassified. In 2013, only records classified more than 25 years earlier will be subject to automatic declassification—if they have not been reviewed since then. For example, there could be a record classified 26 years earlier, but if by 2013 they did get around to reviewing it, and classified it for 25 more years, then it would not be automatically declassified.

Although some believers in automatic declassification may feel cheated by the apparent slackness, did anyone really believe that millions of pages of classified materials would be declassified in bulk, simply because agencies don’t have the resources to process them?

Instead of trying to enforce this provision, Obama put the responsibility for declassification where it belongs, at the US National Archives, by creating a “National Declassification Center” there. This should be good news for historians. Archivists have an entirely different attitude about secrecy than do intelligence agency officials. It’s their job to make materials available to the public, and they’re far more realistic about the dangers posed by ancient writings. Intelligence chiefs, on the other hand, consider the public release of old records to be, at best, a nuisance. And some agencies, such as the Central Intelligence and National Security Agencies, are downright hostile when it comes to public access to their old records. So, a more favorable interpretation of Obama’s deadline extension would be to see it as a way to make “automatic declassification” workable.

One interesting innovation in Obama’s order was to combine the concepts of public access to government records (FOIA) with the sharing of classified information among competing intelligence agencies (connecting the dots). Difficulties in the latter are blamed for disasters ranging from the terrorist attack of Sept. 11, 2001, to the Japanese attack on Pearl Harbor on Dec. 7, 1941. This conceptual shift is reflected in the Preamble to Obama’s order, which emphasizes “the responsibility to provide information both within the government and to the American people.”

Agencies are encouraged to segregate classified details into appendices, and to attach them to summaries that can be more widely circulated. There is also a revision of the legal definition of the “need-to-know.” This is a standard used to control the dissemination of classified information. The new order emphasizes the prospective recipient’s use for the information, rather than resting on a determination made by the so-called “owner” of the information. Although it is often assumed that secrecy equates to security, for information to be of any use, the right people have to be aware of it. Making certain information more available may actually increase our security, by drawing attention to it and making it a priority.

Another change in the order was to set ultimate time limits for different categories of classified information. Generally speaking, classified information falls into a few basic categories: intelligence sources and methods, military weapons, war and emergency preparedness plans, physical security for government officials and buildings, information received confidentially from foreign governments, and information bearing on foreign relations. Although the initial period for classifying information is set to a maximum of 25 years, certain categories of information may be classified for longer. Information concerning sources and methods, military weapons, and foreign relations may be classified for a period of 50 years. The identities of confidential sources, and details about weapons of mass destruction may be kept secret for a period of 75 years. And even these deadlines can be extended ad hoc by an inter-agency panel. But this is still an improvement over the previous secrecy orders, which set no limits at all.

Obama’s order also requires agencies to periodically review the guidance they provide to agencies on how information is to be classified and declassified. Often times, contract employees do this tedious work, and the results can be inconsistent. It’s a common experience of FOIA requesters that when multiple copies of a document are released, entirely different information may be redacted from the various copies. And some categories seem to defy definition. For example, nearly every document produced by the State Department relates to foreign relations, yet State Department records are the most accessible of any at the National Archives.

Finally, the Order contains a kind of “anti-Ashcroft” provision. If there is “significant doubt” whether information should be classified, the presumption is that it should not be. A presumption against classification is just what Obama’s secrecy order should have.

So with all these positive reforms, who’s to complain? Journalists, for one. Most of the reforms in the Obama order apply only to historical materials, which are, by definition, more than 25 years old. The order does little to improve public oversight over the government’s ongoing activities. The need for oversight is far greater for managing current affairs than it is for resolving historical mysteries. Compare the interest in revealing detainee photos from Abu Ghraib prison, with learning more about the Second World War. There’s no indication that Obama wants any of today’s scandals investigated on his watch. But maybe that is too much to ask.

Paul Wolf for World War 4 Report

See our last post on the politics of the GWOT.

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