Wyden Engages White House on Classification Policy
Washington, D.C - In a letter laying out a series of principles and policy recommendations drawn from his years of challenging excessive government secrecy, U.S. Senator Ron Wyden commended the White House for initiating a landmark review of the nation's classification system. In his letter, Wyden states that protecting the nation from foreign threats often requires the U.S. government to operate in secret, but said that in too many cases "the natural bureaucratic tendency to avoid being second-guessed has triumphed over the public's right to know."
"I believe it would...be helpful to give officials with original classification authority more training and more specific guidelines about when and how information should be classified," wrote Wyden. "A 2006 audit by the Information Security Oversight Office found that only 64 percent of sampled records had clearly been properly classified, and this strikes me as an obvious indication that the officials doing the classifying could use more guidance and instruction."
In his three page letter, Wyden praises the President for his consideration of a National Declassification Center, a principal recommendation of the Public Interest Declassification Board, which Wyden worked to establish as part of the Intelligence Reform Act of 2004. "One of the primary problems with the declassification system as it exists today is that declassification is a secondary or tertiary responsibility for every agency involved… Creating an entity - even a small one - whose primary mission is assessing and improving the performance of the declassification system would greatly improve this situation."
The full text of the Senator's letter is below:
June 25, 2009
President Barack Obama
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
Dear Mr. President,
I read your recent memo ordering a review of policies regarding classified and sensitive information with great interest. I commend you for tackling this difficult but important issue. I have worked on a number of problems relating to overclassification and declassification over the years, and I would like to share some of my views and recommendations with you to assist your team's efforts.
In a democratic society, citizens rightly expect that their government will not arbitrarily keep information from them. Elected governments, unlike most dictators, are accountable to the public and elected leaders therefore have no inherent right to keep information from the public. In fact, when citizens have the right to vote, the public is ultimately responsible for all of the decisions made by the government and therefore needs as much information about government activities and public policy as possible, so that voters can make wise decisions.
Throughout our nation's history, Americans have vigilantly guarded this right to know, and have recognized very few legitimate limitations on this principle of openness. One limitation applies with regard to personal privacy - most Americans acknowledge that tax collectors need to have access to individuals' financial information, but they do not believe that their government has the need or the right to share this information openly.
Another limitation applies with regard to national security. The US government has an inherent responsibility to protect the nation from foreign threats, and it can be most effective if it occasionally allowed to operate in secrecy. Americans did not expect George Washington to publicize his strategy for the Battle of Yorktown, and they do not expect you to tell them every detail about troop movements in Afghanistan. Similarly, Americans generally accept that their government will sometimes rely on clandestine methods to learn information about foreign adversaries, and that these methods are more effective when their specifics remain secret.
But while secrecy can sometimes benefit national security, too much secrecy can undermine it. Excessive secrecy interferes with good decision making, because it means there are fewer people in position to evaluate and avoid bad decisions before they are implemented. And when information is treated as a source of power to be hoarded, instead of a resource to be shared, national security professionals are sometimes forced to do their jobs with incomplete facts. Moreover, when information is concealed to protect individuals from embarrassment, rather than to protect legitimate national security interests, then this allows past mistakes to be repeated.
I think it is clear that the balance between protecting legitimately sensitive information and protecting the public's right to know has been dramatically upset in recent years. Too often the Executive Branch has been allowed to develop an obsession with secrecy, and the natural bureaucratic tendency to avoid being second-guessed has triumphed over the public's right to know. Policymakers' efforts to improve information sharing have been impeded by a culture of concealment. And classification decisions have sometimes been made not to protect national security, but to protect individuals' political security.
This problem did not begin with your predecessor. It has been around for decades and has existed under the leadership of both political parties. But I believe that frustration with excessive secrecy has rightly peaked within the past few years, and this is why you were elected to restore principles of openness, accountability and transparency.
Based on the memo that outlines your review, I believe that you have pointed your team in the right direction. In particular, I am encouraged that you are considering the establishment of a National Declassification Center. As you are probably aware, the creation of a Declassification Center was one of the principal recommendations of the Public Interest Declassification Board in its December 2007 report, which is the best recent study on the strengths and weaknesses of the current declassification system.
One of the primary problems with the declassification system as it exists today is that declassification is a secondary or tertiary responsibility for every agency involved. These agencies are charged first and foremost with fighting wars, conducting diplomacy and gathering intelligence, and they quite naturally do not devote significant resources or leadership attention toward ensuring that the declassification system works properly and serves the public interest. Creating an entity - even a small one - whose primary mission is assessing and improving the performance of the declassification system would greatly improve this situation. As the Board noted, "Ultimate authority and control rest with the departments and agencies involved and, unsurprisingly, they do not all see (or execute) their responsibilities in the same way…What appears to be missing is a common understanding of the public interest and a common approach to effectuating it." A National Declassification Center could bring about this common approach and common understanding.
There are a number of other recommendations contained in the Board's report, and I would encourage your team to examine all of them. I worked for years to establish the Board and get it enough resources to function, and the "Improving Declassification" report by itself convinced me that this effort was worthwhile.
Of course, improving the declassification system will only address one facet of the problem. Preventing information from being unnecessarily classified, or overclassified, in the first place will also do a great deal to improve transparency and promote effective information sharing within government. It will also save time and money in the long run, since declassification is often a labor-intensive effort.
Your memo suggests that one way to reduce overclassification could be to implement more accountability for classification decisions, and I think this is an excellent place to start. I believe it would also be helpful to give officials with original classification authority more training and more specific guidelines about when and how information should be classified. A 2006 audit by the Information Security Oversight Office found that only 64 percent of sampled records had clearly been properly classified, and this strikes me as an obvious indication that the officials doing the classifying could use more guidance and instruction.
Additionally, I think that it would be useful to find ways to incentivize proper classification. Most national security officials have a natural instinct to protect information from being disclosed, and this understandably leads them to classify information more than necessary. Changing the current incentive structure and giving more agents and analysts the ability to challenge classification decisions could help balance out this natural tendency.
I would also encourage you to strongly consider restoring the presumption against classification that was removed from Executive Order 12958 in 2003. It is appropriate to give national security officials the discretion to determine what information needs to be classified, but it is also appropriate to give Presidential-level policy direction affirming that information should not be classified without a clear reason.
I am pleased that your memo mentioned the need to appropriately prohibit the reclassification of material that has been properly released to the public. I believe that the 2006 audit that I mentioned above plainly documents the harm that can occur without strong rules of this sort in place.
Finally, it is good to see that your review will examine procedures and practices regarding sensitive unclassified information. In recent years there has been an incredible proliferation of rules and standards regarding this type of information, and any comprehensive effort to reduce excessive secrecy will need to address this issue.
I recognize that there are also things that the Legislative and Judicial Branches can do to update classification policies and improve transparency. The Senate Intelligence Committee, on which I serve, is the custodian of records that date back over thirty years, and I believe that a declassification review of the oldest of these records would certainly be in the public interest. Within the Judicial Branch, the Foreign Intelligence Surveillance Court has issued a number of classified opinions, and a few of these opinions actually contain significant interpretations of law. In my view, there should be a regularized process in place to identify these key opinions and publish their core legal interpretations in a way that informs the public debate and protects national security interests. I look forward to working with my colleagues and your Administration on these issues.
Again, I commend you for your attention to this issue and I look forward to the results of your team's review. If there is any way I can be of assistance please do not hesitate to ask.
Sincerely,
Ron Wyden
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