A New Executive Order on Classification Should Not Expand DoD Authority to Censor Diplomatic Info, Biden’s Classified Docs Underscore Need for Reform, and More: FRINFORMSUM 1/12/2023

DoD May Seek Expanded Authority to Classify Diplomatic Material in New EO on Classified National Security Information 

The National Security Archive has learned that the Pentagon is seeking sweeping authority to classify historic diplomatic material in a new Executive Order on Classified National Security Information, a move that would be a serious blow to policymakers and the public. A September 2022 Politico piece, “White House launches new war on secrecy,” reported that there is a new effort at the National Security Council to rein in the existing sprawling classification regime, focusing specifically on revising the current Executive Order, EO 13526. Hopes among the transparency community were cautiously optimistic with news that John Powers, an NSC veteran who serves as the Associate Director for Classification Management for the Information Security Oversight Office (ISOO), will advise the effort. Now, however, there is cause for serious concern. 

Archivist Bill Burr has written on the Defense Department’s “routine misuse” of the foreign relations exemption in the current EO (exemption 6). The Pentagon regularly and inappropriately cites it to withhold documents that are well over 50 years on the dubious grounds that their release would harm U.S. diplomacy. In addition to the fact that diplomatic matters are the purview of the State Department, the current EO clearly states that these historical records should be subject to automatic declassification, rather than ongoing secrecy. The only loophole for the ongoing withholding of historical records is under section 3.3 (h) (2), “in extraordinary cases” agencies can request permission to exempt “additional specific information.” In the Archive’ experience, the DoD does not meet this narrow threshold; instead, it often cites this exemption to inappropriately withhold information that has been previously declassified, further adding to concerns that a military agency is in a position to impose its views on U.S. diplomatic needs over the views of the State Department. The new EO should not give the DoD further leeway to needlessly withhold information, rather it should ensure the integrity of the declassification system by vesting the National Declassification Center with the authority to declassify historical records. 

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Classified Docs at Biden Sites Raise Fresh Questions About how to Improve the PRA and Reduce Overclassification 

News that classified documents were found President Biden’s office at the Penn Biden Center for Diplomacy in November 2022 – and at a second location in Biden’s personal residence in Wilmington, Delaware – has once again shone the spotlight on the inherent problems with the Presidential Records Act (which also covers the records of the vice president) and overclassification, even within presidential administrations that take records management seriously. It is possible, given the self-assessment nature of a president’s compliance with the PRA, that mistakes may be inevitable; however, introducing annual reporting requirements to the statute, as well as reducing rampant overclassification, which could be done by Executive Order, could help limit the number of times this happens by reducing the overall number of classified documents across the government.    

There appear to be significant differences between the classified records fiasco with the Trump administration and with the Biden documents. The first is the volume of records: Biden had around 10 documents from his tenure as Vice President with clearly-visible classification markings in the first reported document discovery (it remains to be seen how many were discovered in the second), while Trump had hundreds – and countless other unclassified records that should have been returned to the government once he left office. The other issue centers on how they handled the discovery that they improperly retained records: the Biden team notified NARA of the mistake and returned the documents as soon as they were discovered, whereas the Trump administration was served a grand jury subpoena for the records and possibly obstructed their return to NARA (and at this stage of the Trump investigation, the issue of classification is not of primary significance). 

It is unclear if the Biden documents would warrant front-page news if not for the Trump administration’s egregious mishandling of presidential records, including classified information, yet both raise serious concerns about the handling of national security information within the White House. The Hillary Clinton email saga also deserves a mention; while none of her emails were ultimately determined to be classified, all three revelations draw broader attention to lax records handling at the highest levels of government.

Vilém Prečan @ 90

The National Security Archive celebrates the 90th birthday of our longtime scholarly partner and moral inspiration, Vilém Prečan, this week with new, mobile-friendly publications of the four electronic briefing books he compiled and edited for the Archive, and the complete briefing book from the historic 1999 conference he organized with us on the Velvet Revolution of 1989.

Prečan’s distinguished career includes early landmark scholarship on Slovak history, the courageous documentation with “meticulous eyewitness accounts” of the Soviet occupation of Prague in August 1968, forced exile in the 1970s, the founding of the Czechoslovak Documentation Centre as the center of a large dissident network leading up to 1989, return to Prague as the first director of the new Institute of Contemporary History at the Academy of Sciences in the 1990s, and a key role in establishing the Václav Havel Library in 2004, among many other achievements.

From the Archive’s perspective, Vilém Prečan’s genius arises from two deep moral commitments. First is the urgency of skeptical inquiry that drives his lifelong challenge to authoritarianism. Second is the necessity of evidence, his insistence on preserving and publishing the primary sources that ground our mutual history and deflate polemics.

In Brief

• Mexico News Daily joins the Los Angeles Times and New York Times in naming  “After Ayotzinapa,” which investigates the 2014 forced disappearance of 43 Mexican college students, one of the best listens of 2022. The podcast is the result of a partnership between the Archive’s Kate Doyle, reporter Anayansi Díaz-Cortes, and Reveal News from the Center for Investigative Reporting. The six-part Spanish adaptation, Después de Ayotzinapa, was made possible thanks to Adonde Media and Animal Político.