“Declassification-As-Usual” Mindset Responsible for the National Declassification Center’s Languid Pace

Just 362.9 million pages to go.

On December 29, 2009, President Obama created the National Declassification Center (NDC) and instructed it to review the entire 400 million page backlog of historic documents at the National Archives (NARA) for declassification by December 31, 2013.  Three years later, a mere 22.6 million pages (5.8 percent of the backlog) has been made available to researchers.  Despite the president’s instruction for a new type of declassification process at the NDC, the continued “declassification-as-usual” mindset is responsible for the Center’s languid pace.

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In September 2010, President Obama stood on the floor of the United Nations and challenged governments to embrace openness and transparency.  One year later, the United States and Brazil launched the Open Government Partnership, a global initiative in which 46 countries have signed on to take concrete action on specific programs to become “more open and accountable to their people.”

This September, the United States presented its National Action Plan which listed eight new open government initiatives.  However, unless the Obama administration can regain control of its federal bureaucracy, at least one initiate –the National Declassification Center– already looks doomed for failure.

President Obama announced the creation of the National Declassification Center on December 29, 2009.  In his memorandum to each executive agency and department, the president explained –clear as day– that the 400 million page backlog of historic (25 years old or older) records mothballed at the National Archives, “shall be addressed in a manner that will permit public access to all declassified records from this backlog no later than December 31, 2013.”

"...No later than December 31, 2013."

The president understood that the inefficient and wasteful multiple-review system –in which any agency can claim the right to censor any document, leading to multiple unnecessary reviews– was a primary reason for this growing backlog at the Archives.  He instructed, “further referrals of these records are not required except for those containing information that would clearly and demonstrably reveal [confidential human sources or key WMD design concepts].” (Emphasis added.)

Unfortunately, the president may have to sit across from the world leaders he made his pledge to and explain to them that he has failed to force the security establishment of his government to review and declassify these historic documents.

The most recent bi-annual report from the National Declassification Center shows that three years since the president ordered the creation of the Center, and two years after the Center has been up and running, only 22.6 million pages (only 5.8 percent of the backlog) have completed processing!! As Steve Aftergoood of Secrecy News points out, even a tenfold increase in productivity will be insufficient to process this backlog of historic documents by 2013.

The key reason for this slow rate of processing appears to be that the National Declassification Center –which includes declassifying personnel from various government agencies– has not followed Obama’s instructions to avoid unnecessary referrals and re-reviews of the documents.

Again, the president’s clearly stated: “In order to promote the efficient and effective utilization of finite resources available for declassification, further referrals of these records are not required except for those containing information that would clearly and demonstrably reveal [confidential human sources or key WMD design concepts].”  (Emphasis added.)

Apparently –and opposed to the president’s instructions– a document must be reviewed at least twice, and often times more before it can be released to the public.  The metrics in the National Declassification Center’s report –which are a bit opaque and incomplete– paint the following picture of how a document could eventually end up on the shelves at NARA:

• In the two years that the National Declassification Center has been functional, it has assessed 275 million pages for “quality assurance.”  Seeminly, this means that they are reviewing these documents for a “highly unlikely certification under the ‘Kyl-Lott’ [no WMD information] provisions.”  More on this below, but the Kyl-Lott provision stems from a fear that, somehow, a nuclear blueprint (or other less sensitive nuclear information) could have possibly gotten into a box of records from anywhere.   For example, applications to marry Vietnamese citizens during the Vietnam War had to achieve “Kyl-Lott certification” before they could be viewed by the public.  (Of course, it is incredibly unlikely that nuclear information could be accidentally placed in a box and escape review –especially considering the safeguards originally placed on documents containing nuclear information.)  Still, this fear is the reason that the NDC has decided to screen each and every record in the backlog to “certify it” as highly unlikely that there is nuclear weapons information before it can review it for declassification.

• Astonishingly, apparently 154.4 million pages “failed” this screening.  154.4 million pages (39.6 percent of the total backlog!) “may” have WMD information.  I would be surprised it even one percent of these documents actually had any WMD information.  And I suspect even a smaller (non-existent?) sliver of that one percent actually contains information that would truly be harmful to US national security.

• Then, of the 120.6 million pages that passed this “quality assurance” screening, only 22.6 million (18.7 percent of subset and 5.6 percent of the total backlog) have been released to the public.  The Center’s report does not provide a breakdown.  It simply says that 98 million remaining pages are either 1) in the final indexing queue (hopefully!), 2) have been excluded for Department of Energy sensitivities (and were apparently reviewed for them twice!), or 3) were exempted from automatic declassification by an agency.  It would have been extremely helpful if they Center had provided numbers for these three categories.  But, alas.

A note on the statistics: These statistics, garnered from the Center’s most recent bi annual report, were pretty convoluted and hard to understand.  This is my best effort to distill and explain them.  I would certainly welcome any further clarification and/or explanation in the comments from a member of the Center… or anyone.

Criticism of the slow pace should not be misconstrued as criticism of the NARA and agency staff whose expertise is key in getting these historic documents declassified.  A review of the NDC’s report shows that it is the “declassification-as-usual” process –including multiple reviews of documents– that is to blame for the slow rate of release, not the work of the declassifiers.  To achieve the president’s goal, our expert declassifiers  must be empowered with more latitude and authority to make more declassification decisions, more quickly.

The report states several times that the National Declassification Center’s slow pace in review and declassification is due primarily to “prior failures by agencies to address the RD[Restricted Data/FRD[Formerly Restricted Data]-related requirements.”  I referred to these “requirements” above as  Kyl-Lott certification.  It’s complicated; but here is a brief run down, for more see this chilling 2001 account.

Restricted Data and Formerly Restricted Data (which despite its name is still restricted–stupid, I know) are designations spelled out in the 1954 Atomic Energy Act.

Restricted Data was defined in 1954 as information concerning the development or design of nuclear weapons.  Most concede this information should remain classified–although nuclear blueprints are currently available on the internet, and the withholding of nuclear secrets from archives did not stop the A.Q. Khan network or (allegedly) Iran from building nuclear weapons.

The case for censoring Formerly Restricted Data –defined as primarily as information about the use and location of nuclear weapons– is a much harder case to make.  Here is a video showing every nuclear explosion, ever.  And here is a list of all the 27 countries that had a US nuke on their soil during the Cold War.  I cannot see how protecting these facts –already well-known– prevents harm to US national Security.

The Kyl-Lott amendments were passed during the uproar after the 1999 Wen Ho Lee “spy” scandal.  (Lee was eventually convicted of only one of fifty-nine counts, and that was a plea settlement; he won a $1.6 million settlement against the US government and news organizations for leaking his name; and the federal judge apologized to him and excoriated the government for its misconduct and misrepresentations to the court.)  But during the hysteria over the threat of Chinese nuclear espionage –even though China already had a sizable nuclear arsenal– some thought that the president’s executive order on classified information did not do enough to protect Restricted Data and Formerly Restricted Data, as defined in 1954.

Hence, the Kyl-Lott amendments passed Congress.  The amendments required a Department of Energy re-review of all information “not highly unlikely to contain RD/FRD” throughout all US National Archives and presidential libraries, and mandated that all agencies do a “Kyl-Lott” review for RD/FRD before declassifying documents in the future.

Of course, the Kyl-Lott amendments are an extremely large reason that the 400 million page backlog even exists at the National Archive.  (In one report to Congress, the DOE found 40(!) pages of RD/RFD –my guess is FRD– in the 52 million that they reviewed.)  And I’m quite sure that Obama correctly diagnosed this inefficient, burdensome –and arguably unnecessary– review as a primary reason for the 400 million page backlog.

That’s why his memorandum about the National Declassification Center instructed the Secretary of Energy (as well as  other Secretaries) to “provide the Archvist of the United States with sufficient guidance to complete this task [of reviewing and declassifying 400 million pages of historic documents by 2013].” (Emphasis added.)

It’s also telling that Obama instructed agencies to exempt only documents which would “clearly and demonstrably” reveal (a) identities of human intelligence sources (which no one is contesting) or (b) key design concepts of weapons of mass destruction — he does not mention FRD.

I can think of at least two ways that the National Declassification Center could (and still can) comply with the Kyl-Lott Amendments while following the President’s order to review and declassify the backlog by 2013.

One is simply to certify the vast bulk of the documents as “highly unlikely to contain RD/FRD” (this is, in fact, what they are!) and review them normally.  I suspect this is what the president intended when he instructed the “efficient and effective utilization of finite resources.”

Or, failing that, by refusing to review every document two times (once for Kyl-Lott certification and once for declassification review), and instead review every document one time with the same reviewer checking for RD/FRD and a general declassification review.  (I’m certain every reviewer is intelligent enough to be trained to review for two things.)  Yes, of course, this process would be different than the current equity-based review system –which leads to review after review after review of the same documents…. and a 400 million page backlog.  That’s the point. That’s why Obama attempted to change the failed “declassification-as-usual” process.

And the entrenched US national security establishment rebuked his instructions.  As Steve Aftergood wrote,

“The looming failure to comply with an explicit presidential order is a sign of the growing autonomy of the secrecy system, which to a surprising extent is literally out of control.”

"Sorry guys..."

Will Obama sit across the table from 46 heads of state this April at the annual Open Government Partnership conference and explain to them that since he could not coral the security interests of his state to deliver on one of his Open Government commitments, he understands if they renege on theirs as well?

Hopefully, the White House will get involved with the National Declassification Center and force it to begin churning out documents.  Hopefully, the president will explain that when he issues an executive order, he expects his agencies –even the entrenched security agencies– to follow it.  The clock is ticking.