President Obama has issued a new executive order on “Classified National Security Information” (the Order) that addresses the problem of over-classification in numerous ways and will allow researchers to gain timelier access to formerly classified records. Among the major changes are the following:
While the Government must be able to prevent the public disclosure of information that would compromise the national security, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment.
President Obama’s new Order strikes a careful balance between protecting essential secrets and ensuring the release of once sensitive information to the public as quickly and as fully as possible. It also comes after extensive online engagement with the public where more than 150 detailed and helpful comments from various stakeholders were received through the White House website.
This new Order replaces Executive Order 12958 that was issued by President Clinton in 1995 and later amended by President Bush in 2003. The President also issued a memorandum to heads of departments and agencies that directs additional steps agencies should take as they implement the Order.
On January 21, 2009, President Obama signed a memorandum to the heads of executive departments and agencies, calling for the Government to become more transparent and collaborative. In a May 27 memorandum, he directed the National Security Advisor to lead a review of EO 12958 and recommend revisions that improve transparency, openness, and interagency collaboration in the Government’s treatment of national security information. The May 27 memorandum identified six priorities for this review:
(i) establishing a National Declassification Center (NDC) to facilitate collaborative declassification review among government officials;
(ii) addressing the problem of over-classification;
(iii) facilitating the sharing of classified information among appropriate parties;
(iv) appropriately prohibiting reclassification of previously declassified material;
(v) specifying appropriate procedures for classification, safeguarding, accessibility, and declassification of information in the electronic environment; and
(vi) otherwise improving openness and transparency in the Government’s classification and declassification program, while affording necessary protection to the Government’s legitimate interests.
The new Order takes numerous steps to address the six priorities set forth in the President’s May 27 memorandum. First, the Order establishes the NDC within the National Archives to streamline declassification processes, facilitate quality-assurance measures, and implement standardized training regarding the declassification of records determined to have permanent historical value. The Archivist of the United States will develop priorities for declassification activities under the NDC’s purview, with input from the general public and after taking into account researcher interest and the likelihood of declassification.
Second, the Order takes steps to address the problem of over-classification. It greatly strengthens the requirements for training and oversight of all original classification authorities and the much larger number of derivative classifiers. It also directs that information not be classified (or be classified at a lower level) when “significant doubt” exists about the need to classify it. The new EO also tightens the standards for keeping information classified for more than 25 years.
Third, the Order facilitates greater sharing of classified information among appropriate parties, including State, local, and tribal governments. It calls for the greatest possible access to classified information by authorized persons. The Order also significantly modifies the “third agency rule” to permit re-dissemination of classified documents by receiving agencies without the approval of the originating agency, except when the originating agency has indicated on the documents that such prior approval is required.
Fourth, the Order significantly tightens restrictions on reclassification of information after its declassification and release under proper authority, particularly with respect to records that are in the legal custody of the National Archives. Fifth, the Order enhances the appropriate classification and declassification of electronic information by mandating the use of standardized electronic protocols and formats.
Finally, the new Order adopts a number of additional changes in standards, procedures, and deadlines designed to promote greater openness and transparency in the Federal Government’s classification and declassification programs. For example, it directs agencies to align their declassification activities with the priorities established by the NDC and strengthens the standards agencies must meet to exempt any record from automatic declassification at 25 years.
The Implementation Memorandum. The supplemental memorandum directs the heads of executive departments and agencies to take certain actions to implement more effectively the classification and declassification procedures established by the new Order. The memorandum instructs the Director of the Information Security Oversight Office to publish a periodic status report on agency implementation of the Order.
The memorandum also directs agencies, under the direction of the NDC, to take steps to eliminate the backlog of more than 400 million pages of accessioned Federal records previously subject to automatic declassification in order to permit public access to these records no later than December 31, 2013.
In addition, the memorandum stresses the principle that delegations of original classification authority must be held to the minimum necessary to implement the EO. These delegations should be made only to those individuals or positions with a demonstrable and continuing need to exercise original classification authority.
Lastly, in order to promote new technologies to support declassification, the memorandum directs the Secretary of Defense and the Director of National Intelligence to support research to assist the NDC in addressing cross-agency challenges associated with declassification.
Here are some other changes in the executive order that advance the President’s agenda of greater openness and transparency:
1. Establish a National Declassification Center (NDC) – Section 3.7
2. Take Effective Measures to Address the Problem of Over-Classification
3. Facilitate Greater Sharing of Classified Information Among Appropriate Parties
4. Appropriately Prohibit Reclassification of Information
5. Enhance Appropriate Classification and Declassification of Electronic Information
6. Take Other Steps Necessary to Provide Greater Openness and Transparency in the Government’s Classification and Declassification Programs
William H. Leary is Special Adviser to the National Security Advisor and Senior Director for Records and Access Management, National Security Staff