Proposed Obama Order Takes Us Back to the Reagan-era

Updated below:

In today's Secrecy News, Steve Aftergood provides access to an August 4 draft of the executive order (pdf) that was prepared by an interagency task force in response to a May 27 memorandum from the President. As noted in Secrecy News, the draft is still subject to revision, and has not yet been formally transmitted to the White House for review and approval.

Aftergood provides an excellent analysis of the draft and I agree it has a number of notable improvements to the current framework. I will not repeat such observations here. However, there is one point he makes that I believe merits further expansion. Specifically, the draft order affirms that "no agency may declassify information that originated in another agency... without the consent of the originating agency" (section 3.1f). Similarly, the order goes on to state that "... records containing classified information that originated with other agencies or the disclosure of which would affect the classified interests of activities of other agencies ... shall be identified ... for referral to those agencies" (section 3.3(d)(3)). Finally, even the National Declassification Center proposed in this draft order at the specific direction of the President will not have the authority to declassify such information but the information will instead be "referred" back to the "originating agency" (section 3.3(d)(3)(A).

This provision, rather than "demonstrating our commitment to open government" as heralded in the preamble to the draft order, actually hearkens back to the era of Ronald Reagan who set forth one of the most regressive classification policies in history when he promulgated Executive Order (E.O.) 12356, the predecessor to Bill Clinton's E.O. 12958. In Reagan's order, "information shall be classified as long as required by national security considerations" (section 1.4(a)) and would be marked with " the date or event for declassification, or the notation 'Originating Agency's Determination Required,'" commonly referred to as OADR (section 1.5(a)(4)).

Clinton's 1995 order withdrew this significant impediment to the timely declassification of information and, except for information that revealed the identity of a confidential human source or a human intelligence source, required that a specific date or event be established for the declassification of all classified information, even that information originally exempt from automatic declassification. Furthermore, once the specific date or event for declassification was established, no further authorization was required from the "originating agency."

However, George W. Bush's revision to E.O. 12958 in 2003 effectively gutted this provision and led to a de facto re-institution of OADR. Specifically, the Bush order stated that "records containing information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies shall be referred for review to those agencies and the information of concern shall be subject to automatic declassification only by those agencies." These words are echoed practically verbatim in the proposed Barrack Obama order.

In carrying forth this particular provision into the rewrite, just about every other declassification provision in the proposed Obama order becomes moot. Nothing of substance gets declassified unless the originating agency determines that it should be declassified. Not only is this concept regressive, it also defies common sense.

For example, thousands of times every day, individuals from one agency will use "information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies" when creating documents. For example, an analyst at DoD may routinely create documents which use information originated by the CIA, or otherwise affects the CIA's interests. Sometimes the newly created documents created are treated as unclassified; other times they are treated as classified. How those documents are treated is entirely dependent upon the DoD analyst, the individual creating the documents, not the agency that originated the information or whose interests are affected by the information.

In this example, the entire "front-end" of the classification system, when the information is most current and presumably most sensitive, is based upon the premise that whenever the analyst creates a document, even if the analyst uses information belonging to or affecting the interests of another agency, the analyst will take the proper action to classify or not to classify the record. The analyst's actions in this regard will be based upon classification guidance provided by the agency to which the information belongs or who is otherwise affected by the information -- in this case, the CIA. The analyst is never required to submit the newly created document to the CIA for their review prior to promulgation to ensure that the classification designation is correct.

Notwithstanding the above, in this example, decades later, even though the DoD analyst created the document, per the proposed Obama order, neither that analyst, nor any other DoD official would be permitted to declassify the document, even with declassification guidance provided by the CIA. Instead, while the classification system employs a practical, risk management approach to classification on the "front-end" employing delegation through classification guidance, it refuses to mandate the same delegation through classification guidance on the "back-end," when the information is presumably less sensitive.

While this proposed order is a long way from true reform of the existing classification system, it should, at the very least, not represent a return to the regressive Reagan-era approach to declassification. President Obama would be well-served if he was presented with a proposal that, as a minimum, permitted agencies, to include the National Declassification Center, to declassify information based upon declassification guidance provided by the agency that originated the information or whose interests are otherwise affected by the information. Such a risk management approach has consistently worked for the "front-end"of the classification process; there is no reason why it cannot work for the "back-end" of the process.

As noted previously, the President has committed to making his administration the most open and transparent in history. Hopefully, he was not referring only to the history of this millennium.

Update:

The proposed new order regarding classification referenced above is in response to the President's May 27 memorandum which, among other things, directed that any recommendations and proposed revisions address:

Appropriate classification, safeguarding, accessibility, and declassification of information in the electronic environment, as recommended by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction and others (emphasis added).

From the Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction

The DNI should move toward a culture of “stewardship” of intelligence information instead of ownership. Federal government information belongs to the nation and is entrusted to the Intelligence Community in order to pursue the nation’s best interest.

From the report of the "9-11 Commission:"

The culture of agencies feeling that they own information they gathered at taxpayer expense must be replaced by a culture in which the agencies instead feel they have a duty to the information -- to repay taxpayers' investment by making that information available.

From the proposed new order in response to the President's direction:

No agency may declassify information that originated in another agency... without the consent of the originating agency. ... Records containing classified information that originated with other agencies or the disclosure of which would affect the classified interests of activities of other agencies ... shall be identified ... for referral to those agencies.

Perhaps some agencies didn't get the memo?