(Updated Jan 4, 2009) Obama Executive Order on Classification: Reflects Public’s Comments, Makes a Commitment to Declassify Hundreds of Millions of Pages of Historical Materials, Sets the Stage for Reduction in Overclassification

(UPDATED January 4, 2009)

By now you may have heard that President Obama this week issued a new Executive Order governing Classified National Security Information. Elsewhere details have been reported about why the President had to take action on classification by December 31, 2009. That was the deadline for automatic declassification of large swaths of historical (more than 25 year old) records that were not ready, from certain agencies’ perspectives, for declassification. Even though this was essentially a legacy problem that developed under prior presidential administrations, the Obama Administration did not want to be seen as limiting transparency without also committing to improving transparency. Thus, last May, President Obama directed the National Security Advisor to oversee an interagency process to revise the Executive Order and improve the classification system.

This process involved a level of public input that has never before taken place during the revision of an EO governing classification of national security information. The National Security Advisor asked the Public Interest Declassification Board (PIDB), an advisory committee established by Congress that is comprised of presidential and congressional appointees, to solicit public input. The PIDB launched a web based blog discussion that solicited public comments, held a public hearing seeking recommendations, and reported the results to the National Security Advisor.

A leak of a draft of the EO in September led to criticism by a number of organizations because it lacked any commitment to declassification and public release of records and failed to include significant measures to address overclassification.  Significantly, the EO and an accompanying Presidential Memorandum issued this week include provisions that address some of the comments made by the public and reflect the recommendations that came about through the government’s engagement with the public. In that sense, even aside from the innovations present in the EO, this has been a truly historic process that demonstrates the feasibility of public collaboration in government policy.

The EO was accompanied with a Presidential Memorandum that states:

I expect that the order will produce measurable progress towards greater openness and transparency in the Government’s classification and declassification programs while protecting the Government’s legitimate interests, and I will closely monitor the results.  I also look forward to reviewing recommendations from the study that the National Security Advisor will undertake in cooperation with the Public Interest Declassification Board to design a more fundamental transformation of the security classification system.

The Memorandum goes on to commit that “a backlog of more than 400 million pages of accessioned Federal records previously subject to automatic declassification shall be addressed in a manner that will permit public access to all declassified records from this backlog no later than December 31, 2013.”  That would be an increase of the current 44 million pages declassified per year to 100 million pages per year.  And, instead of declassification resulting in no greater public access, the memorandum specifically commits to public access.

As to the EO itself, well, it holds great promise for decreasing overclassification. Some of the changes are summarized elsewhere, including on the White House Blog, but here are a few highlights:

1. In its preamble, the EO explicitly recognizes the importance of the free flow of information to the public.  It also references a commitment to open government, accountability of the classification system and effective declassification.
2. The new EO restores language that directs against classification when there is significant doubt about whether to classify and directs lower level classification if there is significant doubt about the proper level of classification.  Sections 1.1(b) & 1.2(c).  Although it may be hard to trace the impact of this sort of a shift, especially when it is explicitly not judicially enforceable, it sends the message that reflexive secrecy is not supposed to be the default position with respect to government information.
3. The EO ends the Central Intelligence Agency’s (CIA) veto power over declassification decisions reached by the Interagency Security Classification Appeals Panel (ISCAP), instead permitting any agency to appeal through the National Security Advisor to the President if there is an ISCAP decision to release records.
4. But, it the EO also increases intelligence community participation in ISCAP, by providing seats to both CIA and the Office of the Director of National Intelligence (ODNI).  ISCAP also includes members from the Department of Defense, the Department of State, the Department of Justice, the National Archives and Records Administration, and the National Security Advisor.  Four votes are needed to decide a declassification issue.
5. Eliminates language added during the Bush Administration that limited coverage of the Vice President by the EO to “the performance of Executive duties.”  That language was supposed to distinguish between the Vice President’s executive and legislative duties and appeared to suggest that the Vice President was, in part, not subject to regulation under the EO.
6. Establishes, for the first time, the principle that no information may remain classified indefinitely and that information may not be excluded from declassification based on type of record.  These are both important, given that some agencies have tried to argue that specific categories of documents, such as President Daily Briefs, can never be declassified, or that very ancient secrets cannot be declassified.
7. Nonetheless, the EO preserves the role of the original classifying agency in declassification.  This allows every agency with an “equity” in the record to have an opportunity to review the record prior to declassification and has accounted for a significant amount of backlog in the declassification system.
8. In general, it sets up a scheme whereby records must be designated for declassification at 10 or 25 years, unless they include confidential or intelligence source information or key WMD design concepts.  Such exempted information may be classified for up to 50 years.  In extraordinary cases, the information may be classified for up to 75 years upon approval of ISCAP.
9. Puts in place greater accountability for Original Classification Authority and Derivative Classification Authority activity:  It requires delegations of OCA to be reported (by name or position) to the Information Security Oversight Office (ISOO).  Section 1.3(c)(5) . It suspends OCA for those that do not receive annual classification training.  Section 1.3(d).  Such training is to include avoidance of overclassification and declassification training.  It makes clear that classification challenges are not limited to those raised within the classifying agency.  Section 1.8(b).  It requires that derivative classifiers be identified by name and position, or personal identifier, on each document they classify.  Section 2.1(b)(1).  It also requires a listing of source materials on each document rather than attached to the official file or record copy.  Section 2.1(b)(3)(B).  It also requires that derivative classifiers use classified addenda (previously only required of OCAs).  Section 2.1(c).  It suspends derivative classification authority for those who do not receive training at least every 2 years.  Section 2.1(d).
10. Sets up procedures that may improve classification decisionmaking and may reduce overclassification, including by directing a fundamental classification policy review at each classifying agency.  This will include review of classification guides, original classification authorities, and evaluation of classified information to determine whether it meets the standards for classification.  The initial review is to be completed within two years of the effective date of the EO.  The EO tries to incorporate lessons learned from ISCAP decisions on declassification by directing agencies to consider those decisions in their automatic, systematic, and mandatory review declassification programs.  The President’s memorandum also directs a review of the OCA’s and a reduction in thenumber of people authorized to originally classify information.
11. The EO alters the standard for classification, reclassification, and the classification categories in a number of ways:  It states the damage standard for classification (“unauthorized disclosure could reasonably be expected to cause identifiable or describable damage…”) in the enumeration of the classification categories. Section 1.4.  This may clarify for classifiers that the damage standard is an essential part of the classification assessment. It extends prohibitions and limits against classification beyond the act of initial classification.  Section 1.7(a).  It strengthens checks and balances on reclassification, especially for records already transferred to the National Archives and Records Administration.  Sec. 1.7(c)(4).
12. The EO both tightens and broadens the standards for exemption from automatic declassification by requiring a “clear[] and demonstrabl[e]” expectation that the records would disclose an intelligence source (which appears to be more broadly defined) or an intelligence method, which is slightly narrowed to relate only to those currently in use, avilable for use, or under development.   It also now permits exemption of historical war plans that may reveal tactical or operational elements used in active plans.
13. Creates a National Declassification Center (NDC) that would establish a more efficient and collaborative declassification system.  Although it still allows each agency to control declassification of its own information, it does indiciate that agencies will lose their right to object of they do not respond to an equity referral within 1 or 3 years depending on the nature of the referral.  The EO describes a system of prioritization by the NDC that would be based on researcher interest and likelihood of declassification.
14. Excludes documents that must be submitted for pre-publication review from mandatory declassification review procedures and excludes them from classification challenges.
15. Removes information concerning foreign nuclear programs that is no longer Restricted Data (RD) from automatic declassification.
16. Limits the length of integral file blocks to 10 years in length.
17. Provides standards for non-documents (artifacts) and provides that no information may be excluded from automatic declassification based solely on the physical type of the document/record in which it is found.

We will continue to provide analysis as we digest the changes.  In addition, it is likely that several public engagement processes will be commenced to solicit public input on the implementation of the EO that we will let you know about here.