[Intelforum] Secrecy News -- 04/22/11
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from the FAS Project on Government Secrecy
Volume 2011, Issue No. 38
April 22, 2011
Secrecy News Blog: http://www.fas.org/blog/secrecy/
** MOST AGENCIES ARE OUT OF COMPLIANCE WITH SECRECY POLICY
** COURT REJECTS AGENCY'S NATIONAL SECURITY CLAIM
** R.I.P. -- JEANNE SCHAUBLE, MICHAEL RESNICK
** VARIOUS NEW ITEMS FROM CRS
MOST AGENCIES ARE OUT OF COMPLIANCE WITH SECRECY POLICY
Most executive branch agencies failed to meet a December 2010 deadline set
by President Obama to issue implementing regulations for his December 2009
executive order on national security classification policy, dealing a
setback to the Administration's classification reform agenda.
Despite last year's presidential deadline, "As of March 15, 2011, only 19
of 41 agencies have issued their implementing regulations in final form,"
according to the latest Annual Report to the President from the Information
Security Oversight Office (ISOO), made public today.
"Given that less than half of agencies have issued implementing
regulations in the 15 months since the President issued the order and the 9
months since ISOO revised the government-wide implementing regulations for
the order, it is clear that the means by which agencies modify and issue
implementing regulations are not sufficient to accommodate changes in
national security policy," the ISOO Report said.
"ISOO sees this as the biggest impediment to implementing the reforms
called for by the President and as a real threat to the efficient and
effective implementation of the overall classification system."
Among other things, the delayed implementation of the executive order
means that many agencies have still not begun to perform the Fundamental
Classification Guidance Review that requires them to seek out and eliminate
obsolete classification requirements.
ISOO Acting Director William A. Cira said that even with the lag in
implementation, many agencies were actually moving faster to adopt the new
classification order than they had done in the past. For example, after
President Clinton issued executive order 12958 in April 1995, the
Department of Defense did not issue an implementing regulation for nearly
two years. Following President Bush's 2003 executive order 13292, the
Department of Defense never got around to issuing an updated regulation at
On the other hand, no previous President had personally set a deadline for
agencies to adopt implementing regulations, as President Obama did in a
December 29, 2009 memorandum. This creates the awkward and disturbing
circumstance that most affected agencies are now out of compliance with a
direct presidential order.
That's true, said Mr. Cira of ISOO, but it should be understood as a
reflection of antiquated bureaucratic procedures, not as deliberate agency
defiance of the President.
"In a lot of agencies, especially the larger ones, the bureaucratic
processes for publishing formal regulations tend to be quite difficult and
time consuming," he said. "This can be just as frustrating for those people
in the agency that have drafted the regulation and are trying to get it
through the approval process as it is for anyone outside the agency."
The ISOO annual report is one of very few published sources of official
data on classification and declassification activity in the government.
This year, for example, the report said that agencies generated 224,734
original classification decisions in FY2010, a hefty 22.6 percent increase
from the year before.
But the impact of the annual reports is hard to establish. In recent
years, the President has not even acknowledged receipt of the report, much
less engaged with its findings.
COURT REJECTS AGENCY'S NATIONAL SECURITY CLAIM
In Freedom of Information Act litigation, courts will almost always defer
to a government agency when it asserts that national security requires that
certain information remain classified. Judges say they are reluctant to
"second guess" agency national security experts, and there is a substantial
body of case law that discourages them from doing so.
But earlier this month, Judge Richard W. Roberts of the DC District Court
considered an agency's national security claim, found it unpersuasive, and
In that FOIA case, Center for International Environmental Law vs. the
Office of the United States Trade Representative, the plaintiff sought a
USTR document concerning the U.S. negotiating position on the Free Trade
Agreement of the Americas. USTR said the document was classified because
the international negotiations were confidential and the document's
disclosure would result in damage to U.S. foreign relations.
"USTR argues that release of document 1 would constitute a breach of its
agreement with the other nations participating in the FTAA negotiations.
[USTR] states that [t]here is an understanding among the 34 participating
governments, consistent with longstanding practice in multiparty trade
negotiations, that they will not release to the public any negotiating
documents they produce or receive in confidence in the course of the
negotiations unless there is a consensus among the 34 governments to do
But remarkably, the judge didn't buy it, particularly since it was a
question of releasing a U.S. document, not a foreign document.
USTR "has not shown it likely that disclosing document 1 would discourage
foreign officials from providing information to the United States in the
future because those officials would have no basis for concluding that the
United States would dishonor its commitments to keep foreign information
confidential," he concluded.
"Although a court must defer to agency affidavits predicting harm to the
national security, '[d]eference... does not mean acquiescence'," Judge
Roberts wrote. See the April 12, 2011 Memorandum Opinion here:
The ruling that international negotiations cannot necessarily be used as a
pretext for classifying U.S. government information may have important
ramifications in other policy areas.
So, for example, the U.S. government currently makes less information
about the makeup of the U.S. nuclear arsenal under the New START Treaty
than it previously did under the START regime, observed Hans Kristensen of
FAS last month.
Although such stockpile information is generated and is regularly
exchanged with the government of Russia under the provisions of New START,
it is currently classified and has still not been made publicly available.
If it became necessary to challenge the classification of this information
in court, then Judge Robert's new ruling might offer an apt precedent.
"Although the Constitution permits the judiciary to play a role in judging
government secrecy claims and Congress has repeatedly endorsed that role,
most prominently in the Freedom of Information Act, judges have been
reluctant to question Executive Branch secrecy," observed Meredith Fuchs in
a 2006 law review article that argued for a more active judicial role in
reviewing classification decisions. "Without judicial intervention..., the
incentives on the Executive Branch to overreach far outweigh any checks on
R.I.P. -- JEANNE SCHAUBLE, MICHAEL RESNICK
We were sad to learn, belatedly, of the recent deaths of two familiar
figures in the rather small world of government secrecy policy.
Jeanne Schauble, the longtime director of declassification at the National
Archives, died last October. She helped oversee and implement the
declassification of more than a billion pages of historical records since
1995. Her NARA colleague Michael Kurtz said last year that "she set a high
standard for government service."
Michael Resnick was Senior Director of Information Sharing Policy at the
White House until his death from cancer in February. If the current policy
on Controlled Unclassified Information is not a disaster -- and so far,
it's not -- that is largely because Mr. Resnick was willing to engage in
sometimes heated discussions with public interest groups and to reconsider
his own position.
As far as we could tell, no obituaries for Ms. Schauble or Mr. Resnick
appeared in any national newspaper. They weren't famous. But they were
honest, honorable and skilled public servants. Anyone who crossed their
paths will remember them.
VARIOUS NEW ITEMS FROM CRS
New reports from the Congressional Research Service on various topics
"Non-Governmental Organizations' Activities in North Korea," March 25,
"Turkey-U.S. Defense Cooperation: Prospects and Challenges," April 8,
"FY2011 Appropriations in Budgetary Context," April 14, 2011:
"Judicial Discipline Process: An Overview," April 7, 2011:
"Effects of Radiation from Fukushima Daiichi on the U.S. Marine
Environment," April 15, 2011:
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
The Secrecy News Blog is at:
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