Obama's New Classification Policy: the Good and the Bad

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Steven Aftergood reviews Obama’s new classification Executive Order and finds much to be happy about.

For the first time, each executive branch agency that classifies information will be required to perform “a comprehensive review” of its internal classification guides to validate them and “to identify classified information that no longer requires protection and can be declassified.”  The new requirement is one of the most potentially significant features of an Executive Order on national security classification policy that was signed by President Obama last week.

There are more than two thousand agency classification guides currently in use and they constitute the detailed operating instructions of the classification system.  If the so-called Fundamental Classification Guidance Review (set forth in section 1.9 of the new Order) is faithfully implemented by the agencies, it should eliminate numerous obsolete classification requirements and effectively rewrite the “software” of government secrecy.

Other outstanding features of the new Executive Order 13526 include the establishment of a National Declassification Center to coordinate and streamline the declassification process (section 3.7);  the adoption of the principle that “No information may remain classified indefinitely” (section 1.5d);  and the elimination of an intelligence community veto of declassification decisions made by the Interagency Security Classification Appeals Panel. This veto authority had been granted by the Bush Administration in 2003.

But the Order contains many dozens of other changes in language that are subtle but important.  So, for example, section 3.1g states that “no information may be excluded from declassification… based solely on the type of document or record in which it is found.”  What this simple formulation does (or is expected to do) is to eliminate the permanent classification of the President’s Daily Brief (PDB), the daily intelligence compilation that is delivered to the President each morning.  The CIA has long argued that by virtue of being presented to the President, the information contained in PDBs is inherently and permanently classified.  Now it’s not.

[snip]

Some of the changes suggest previously unsuspected problems or issues.  Section 4.1c states curiously that “An official or employee leaving agency service may not … direct that information be declassified in order to remove it from agency control.”  There may be a story behind that new provision, but I don’t know what it is.  Section 3.1h states for the first time that classified “artifacts” and other classified materials that are not in the form of records shall be declassified in the same way as classified records.

I wonder whether they’re considering “CIA officer’s classified identity” to be an artifact in that last bit?

But Aftergood notes some areas in which Obama’s EO supports more secrecy.

Not all of the changes are in the direction of increased disclosure.  Section 4.3 authorizes the Attorney General, as well as the Secretary of Homeland Security, to establish highly secured Special Access Programs, an authority reserved in the previous Executive Order to the Secretaries of Defense, State, Energy and the then-Director of Central Intelligence.  Sections 1.8c and 3.5g exclude material submitted for prepublication review from classification challenges and mandatory declassification review.

This one is actually quite concerning. Remember that a lot of Bush’s most secret–arguably illegal–programs (like his torture program, his domestic surveillance program, and his assassination program) may have had aspects that were SAPs. Letting DHS and DOJ institute them seems to increase the risk of domestic SAPs.

Also, while I could be misreading this, but this passage would seem to explicitly prevent someone–oh, say, the Vice President–from declassifying a CIA officer’s identity without either the assent of the CIA Director or written permission to do so.

PART 3 — DECLASSIFICATION AND DOWNGRADING

Sec. 3.1.  Authority for Declassification. (a)  Information shall be declassified as soon as it no longer meets the standards for classification under this order.

(b)  Information shall be declassified or downgraded by:

(1)  the official who authorized the original classification, if that official is still serving in the same position and has original classification authority;

(2)  the originator’s current successor in function, if that individual has original classification authority;

(3)  a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or

(4)  officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency.

Of course, given the OLC judgment that EOs can be pixie dusted at will, this may not prevent someone from doing what Cheney did to Valerie Plame. But at least there seems to be the intent to prevent such attacks.

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  1. SaltinWound says:

    Yes, my concerns are pixie dust and enforcement mechanism. As usual, I am assuming there is no enforcement mechanism but hope I am wrong.

    • fatster says:

      You’re looking for the clever means they’ve built into “the good and the bad” to hide the ugly, too, aren’t you? We’ve been so conditioned to be suspicious of anything they do!

  2. emptywheel says:

    Well, this does explicitly empower the ISOO (the role that Bill Leonard had before Cheney chased him out) to complain about improper classification. So I do think it’s is qualitatively better than Bush had on that front. Plus, it all seems to be better written, meaning someone like Cheney wouldn’t have big loopholes like Cheney used.

  4. emptywheel says:

    Yeah, it is a bit sad. Click through to read Aftergood’s entire piece–it’s clear they backed down from giving real leverage to either ISOO and/or the declassification center.

  5. earlofhuntingdon says:

    Sec. 3.1(3) might be construed, to include the VP among those officials classed as a “supervisory official” of the original classifier.

    That’s a stretch, but one Addington or Yoo would reach for. Ordinarily, that language would refer to an official within the classifying agency. Even if refers to the entire chain of command, that would end at the president, not the VP. He is outside the chain of command until he assumes the president’s powers under applicable law, unless the president specifically delegates to him one of his delegable powers. Pixie dust aside, that should be in writing.

    Given a normal reading, you would be correct. What’s normal in Washington nowadays?

      • earlofhuntingdon says:

        I did think Sec. 3.1(3) a little cute in referring to “a supervisory official” without framing it by referring to someone inside the classifying agency. That leaves open a reference to the entire chain of command, up to and including the president.

        Some 2000 or so agencies having classification authority and there are multiple levels of reporting up a lengthy chain of command. That leaves a lot of cutouts between a classifier and the president.

        Those sorts of abuses/opportunities are routinely considered among drafters of rules and legislation. This is an EO, so its language has not been battered about by lobbyists and committee staffers on the Hill. Its language should be presumed to be what the president and his staff want, rather than a creature of compromise among opposing forces.

  6. earlofhuntingdon says:

    This sort of review of classified material is not completely new. Earlier ones have taken years and been shot through with holes, including process rules that give virtual veto powers to a single interested agency. One extreme example is that they are still debating the release of presidential papers from several generations ago.

  7. earlofhuntingdon says:

    This is an appealing step in the direction of more open government and I hope it has more than symbolic meaning. But this sort of review is unlikely to have any public effect during this president’s tenure. As an EO, a later president (or this one) could change, revoke or make exceptions to it at will, in writing or via pixie dust.

    • earlofhuntingdon says:

      Condi Rice, travel guide. I hope those famous high heels don’t bite or bind on the rocks and desert sands.

      I’d like to think this EO is well-intentioned. These sorts of initiatives often have several godfathers. This EO will certainly make for several years work inside the federal government. Outsourcing firms, cataloguers and analysts will be happy, assuming they are budgeted for. If not, this initiative will go slow, if at all.

      This EO also provides programmatic cover to ferret out Bush era and earlier secrets the president may fear are out there, but isn’t sure. Lots of other purposes may be behind it, too, including Obama’s sense of order and need to rationalize and sustain the status quo he finds himself working with.

    • skdadl says:

      What — no Mrs Thatcher?

      The person who should lead that trip (except I’m sure he would eschew such an environmentally destructive way of conducting it) is Neal Ascherson, author of the wonderful book The Black Sea, which totally turned my head around about the way I was taught early European history. I’d go if he was tour guide.

    • Mary says:

      I guess she’ll be able to visit with her friend Gen Dostum in the Ukraine. Maybe share some boiled cabbage human flesh recipes with her old State Dept pals with diplomatic cover who helped facilitate the “interrogations” by the Ukraine gov. Heck, maybe she and Dostum will even compare notes between her delux cruise accomodations and his shipping container accomodations.

      Filth – that woman is just filth.

  9. Leen says:

    Thanks ew. This morning on the Rehm show Reuel Marc Gerecht said that the “modernizing” going on in the middle east has not been “bloody” What a mother fucking racist. Excuse me folks. Just can not believe our MSM has the same liars who have been proven wrong again and again on to spew their disregard for the lives of Muslims. Gerecht is a flat out racist

  10. Mary says:

    Do they define a “supervisory official?” I’m thinking the President would always, ultimately, based on the concept of the privilege, have declassification authority, so I’m not sure that the change would prevent a President from insta-secretly declassifying and telling his VP to “get it out there.” fwiw.

    Btw – the AG has no business setting up SAP programs. Period. That’s nuts.

    • earlofhuntingdon says:

      I think that’s right.

      I see the issue as being what other, lower level “officials” this language covers. In normal, outside the Beltway parlance, it would refer to the immediate supervisor of the original classifying official. The language is intentionally broader than it needs to be to say that, so it includes others up the chain. Unless “a supervisory official” is defined elsewhere, “up the chain” stops with el presidente.

      • Mary says:

        And nothing is done to deal with the issue of an EO v. Statute and illegal activiity. IOW, the EO might allow the President to declassify and have the VP get it out, but the IIPA and the NSA don’t necessarily jive with his EO, and the whole judicially constructed basis (since it’s not guaranteed in the Constitution) of the privilege has always been approached as not allowing for classification of illegal activity. So what do you do when the Exec branch takes it up on itself to issue “Secret Law” with EOs sub-ing for legislation and OLC memos subing for case law, and then secretly act on its secret laws and circumvent the need for overt Presidential pardons set forth in the constitution by instead setting up an extra-constitutional program of covertly agreed upon non-prosecution issued by the Exec as legislator, interpreter and enforcer?

        • earlofhuntingdon says:

          True, this EO doesn’t deal with pixie dust or the EO process. The only good news is that orderly Obama would probably rather not use verbal pixie dust. That doesn’t stop him from using classified EO’s, however.

          I gather from FAS that this EO did result from fairly wide and even limited public comment, though it is more charitable on the ideas that the WH rejected than I would have been. As always, the proof of the pudding is in eating it. Let’s see what this does rather than what it says.

    • emptywheel says:

      Ah, but I’m increasingly convinced that 1) Bush didn’t give Cheney authority in the case of Plame, and 2) certainly didn’t do so in writing.

      In other words, short of inserting himself into the chain of command (which he did do, after on, on 9/11 when he issued a shoot down order), Cheney couldn’t out Plame as easily.

      • earlofhuntingdon says:

        Many of your regular readers would agree: Cheney assumed command without written instructions from his putative boss. I would say he never let go of it.

        Bush, the cuckolded president, never acknowledged the insurrection. Salving his ego, he claimed that his job was to delegate his job to others, so that it got done. Few Freudian slips have been more accurate.

        Having placed his unwritten delegation of authority so squarely inside the structure that maintains the former president’s ego, I think Cheney concluded he had little to worry about from Shrub disavowing that delegation. It would only happen if doing so would keep Shrub out of jail. With shields like executive privilege and a new president committed to averting his eyes and his DoJ from the prior administration, Cheney’s gambit may prove successful. Though if I were he, I wouldn’t plan too many foreign vacations.

      • quake says:

        Ah, but I’m increasingly convinced that 1) Bush didn’t give Cheney authority in the case of Plame, and 2) certainly didn’t do so in writing.

        Don Corleone didn’t give his consigliere (Tom Hagen) any instructions in writing either, so there was no evidence against him (unless the consigliere ratted him out). We shouldn’t necessarily assume Cheney acted on his own, rather than on Bush’s orders. Bush wasn’t intellectual, but was cunning.

  11. scribe says:

    FWIW, I would suspect the classified “artifacts” would be tangible things as opposed to documents (or their electronic replacements – discs and tapes). A artifact would therefore be something like the machines the government built to mimic/replicate the Japanese “Purple” code machines, the better and faster to decode Japanese coded messages. Last time I read about them, those machines, built in the late 30s- early 40s time frame, have never been seen publicly and were still classified Top Secret.

    Maybe they’ll even bring out that funny box that guy named Jones – the one with the bullwhip – brought back from the desert. The one marked “Do not open”.

    • RHIL says:

      A artifact would therefore be something like the machines the government built to mimic/replicate the Japanese “Purple” code machines, the better and faster to decode Japanese coded messages. Last time I read about them, those machines, built in the late 30s- early 40s time frame, have never been seen publicly and were still classified Top Secret.

      The “Purple” code machine and an Enigma machine, among others, are on display at the NSA Cryptologic Museum.

      Located adjacent to NSA Headquarters, Ft. George G. Meade, Maryland, the Museum houses a collection of thousands of artifacts that collectively serve to sustain the history of the cryptologic profession. Here visitors can catch a glimpse of some of the most dramatic moments in the history of American cryptology: the people who devoted their lives to cryptology and national defense, the machines and devices they developed, the techniques they used, and the places where they worked.

      For folks interested in such stuff, the museum is worth a visit if you are in the Baltimore area. They also have a library.

  12. Mary says:

    “certainly didn’t do so in writing”

    But basically this was already a requirement. Through a more circuitous path, but still a requirement. If there was a pressing urgency that prevents the writing from being generated contemporaneously, the President still had to go back and produce it later (remember I kept asking why there didn’t seem to be any push by the intel committees to require copies of those findings/authorizations that were admitted to in the Fitzgerald filings?)

    And under the old EO (and it was basically Clinton, not Bush, who first included the VP references) Cheney didn’t have declassification authority absent Presidential participation either – he had no classification authority over the CIA officer identities (or NIE work product) so he didn’t have the derivative declassification authority there, nor as a supervisor, and so under even the old order he would have been exercising such authority in connection with powers delegated to him by the President IMO. See the OLC opinion on delegations from Gonzales as AG to Goodling and Sampson for the OLC position on what the AG (and President, but pretty direct reference in that opinion, have to do vis a vis a writing on delegation). So I’m not sure (jmo) that it changes things much, fwiw

    BTW – I really tend to think Bush did in some way give Cheney the ok. I think there was too much participation by Fleischer and Rice and Hadley and Rove who were all seemingly working on outing that info for it to be just an OVP project. Again, jmo, fwiw.

    • earlofhuntingdon says:

      Bush and Cheney both hated putting things in writing. Too much to read for Shrub, too much paper trail for Dick.

      So I agree that Shrub eventually authorized leaking Plame’s name, as he did most other things Dick did, at least when he heard about them. Everyone Cheney or Shrub would have talked to would have joined the chorus that the president could act without the lawyerly step of putting it in writing, and that he could ratify Cheney’s prior acts, probably on a blanket basis. (If you had a different opinion, you weren’t asked or didn’t keep your job.)

    • bmaz says:

      We will see. My own gut take is that these prosecutors were told to do what it took to make a case by the top of DOJ because the WH said to get it done. Previously the Bush DOJ had indicated the case was likely not prosecutable and, due to the fucked up circumstances coupled with the weird structure of the law and the gaping holes in it, the Bushies were actually pretty much right. I think Obama made some promises to the Iraqi government, and I also think he wanted to avoid international jurisdiction for not having tried to prosecute, and so he ordered it be done. In this regard, there was no possible way to get an indictment and move to a trial that did not have the taint of the original State Dept. bogus actions including, most notably, the Garrity letters. I am going to guess that, for this reason, the prosecution team gets protected.