Minority Leader, Nancy Pelosi Announces Appointment of John F. Tierney to the PIDB

On July 11, 2017, the House of Representatives Minority Leader, Nancy Pelosi announced the appointment of John F. Tierney to serve a three-year term as a member of the Public Interest Declassification Board.   The members of the PIDB look forward to working with Mr. Tierney as they continue their efforts to improve declassification and modernize the classification system. You may access a biography of Mr. Tierney here.

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State Department Releases Historically Significant Records on Human Rights Abuses in Argentina

Yesterday, President Trump presented Argentine President Mauricio Macri with a CD containing approximately 3,300 pages of records relating to human rights abuses committed in Argentina between 1975 and 1984.  The documents are part of a comprehensive interagency project by 14 Government departments and agencies to search their archives and identify and review for public access records documenting these abuses.  They have been long sought by the Government of Argentina and researchers.

The documents released today are grouped into two collections.  The first group contains newly available information from previously withheld documents.  They were originally reviewed by the State Department in 2002 but reviewers determined they could not be released to the public at that time.  They provide new details on U.S. policies, information on specific abuse cases, and U.S. efforts to end abuses.  These documents are integrated into a database titled, “Argentina Declassification Project” and can be viewed here.

The second group of documents consists of records identified by State Department historians as they compiled the Foreign Relations of the United States (FRUS) South America, 1977-1980 volume.  They document high-level policy discussions and deliberations as the Carter administration sought to deal with the Argentine dictatorship.  These documents were identified for inclusion in the Argentina and Latin American Region chapters and can be viewed here.

The Public Interest Declassification Board (PIDB) has long recommended the importance of prioritizing records for declassification.  In 2012, we wrote our report to the President on Transforming the Security Classification System and focused on this recommendation in our 2014 report to the President titled Setting Priorities: An Essential Step in Transforming Declassification.  The recommendations in these reports advocated that the best use of department and agency resources should be spent on reviewing relevant topics of historical interest. The PIDB commends the cooperative effort by all departments and agencies undertaking exemplary projects like this one which are of great historical value and should become a prototype for the declassification of significant government information.

Other Links of Interest

The Department of State publicized these documents with a press release as well as through a DipNote blog post

IC on the Record has publicized the release on their official blog.

The release was publicized in Argentina, including in the Buenos Aires Herald, an English language newspaper.

In the U.S. the National Security Archive blogged about it and posted an Electronic Briefing Book here.

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The Importance of Sunshine Week

This week is Sunshine Week, an annual initiative that seeks to educate the public about the importance of openness in government.  Each year during mid-March, organizations dedicated to advocating for a more open government hold events around the nation to
discuss the various ways we can hold our government accountable to the people by limiting secrecy and advancing the free exchange of information.

The PIDB supports these Sunshine Week events, including one being held today at the National Archives and Records Administration.  The event features a variety of panelists, including the Archivist of the United States and the Librarian of Congress, as well professionals from the Office of Government Information Services and civil society groups, who will discuss the importance of increasing the public’s ability to access government information.

As a Presidential Advisory body, the PIDB will continue its role of advising the President, Executive Branch officials, and Congress on ways to bring sunshine to the security classification system in the interest of our national security.  We believe, and have reiterated in every report written, the need for limiting secrecy to the absolute minimum necessary to achieve our national security initiatives.
Indeed, sharing information as soon as is possible brings credibility and transparency to the security classification system, ideals we know are necessary for its successful functioning.  As current events have demonstrated, the credibility of our government is a major factor in its ability to do its job effectively.  Transforming and modernizing classification and declassification across government so they function more effectively in today’s digital information environment is critical to reducing over-classification and improving access to information that no longer requires protection.
Sunshine Week is also an opportunity to commemorate the tenure of one of our longest serving members, Sanford Ungar.  Sandy completed his third appointment as a member of the PIDB in early March.  Among his many accomplishments while on the PIDB, Sandy was instrumental in developing the recommendations for all three PIDB Reports to the President, including the latest Setting Priorities report, which focuses on the prioritization of historical records of interest in declassification review.  Sandy’s experience as a journalist and historian helped shaped many of his insights while a PIDB member.  His dedicated service to the nation will not be forgotten and we wish him all the best in the next chapter of his professional and personal life.  We are thankful the PIDB will have Sandy as an enduring resource to call upon as we continue our work in promoting a more open government.  On behalf of the members, past and present, we thank Sandy for his contributions and congratulate him on his tenure as a member of the PIDB.
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Join Us at the “Free Speech Legacies: The Pentagon Papers Revisited” Symposium February 16-17, 2017

Please join PIDB member Sanford Ungar at the “Free Speech Legacies: The Pentagon Papers Revisited” symposium on February 16-17, 2017 at Georgetown University.   The event is free and you can register at tinyurl.com/freespeechlegacies.

Mr. Ungar orchestrated the symposium, which will feature a variety of distinguished panelists, including Floyd Abrams, Martin Baron, David Cole, David Sanger, Bob Woodward, and others.

The symposium will commence Thursday evening at 7:30 p.m. with a public dialogue between Mr. Ungar and Daniel Ellsberg on the importance of the Pentagon Papers when originally published in 1971 and today.  We hope to see you at the symposium.  You can view more information about the legacy of the Pentagon Papers here.

 

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What We Heard and Learned at the Public Meeting

On December 8, 2016, the PIDB held a public meeting to hear and discuss recommendations for improved transparency and open government for the new Presidential Administration. The meeting was an opportunity to also solicit ideas for revising Executive Order 13526, “Classified National Security Information” from our internal and external government stakeholders, including leaders of civil society.  You may view a recording of the meeting here.

The meeting began with an introduction of the PIDB’s two newest members, Mr. Trevor Morrison and Judge James Baker, accompanied by remarks from Mr. Morrison who will serve as the new chair.  Mr. Morrison described the PIDB’s work plan for 2017, including the desire to frame recommendations to the new Administration that support three specific policy initiatives:  reducing over-classification, improving declassification, and ensuring a credible and transparent security classification system.  The Archivist of the United States, Mr. David Ferriero, provided a welcome and update on the open government initiatives promoted at the National Archives, including the work of the Archives to fulfill its mission to “make access happen.”

The PIDB was pleased to have Mr. Alexander Joel, Chief of the Office of Civil Liberties, Privacy and Transparency for the Office of the Director of National Intelligence, serve as the keynote speaker at the meeting.  Mr. Joel described the four principles of transparency established by the Director of National Intelligence and his role in the stand-up of the Intelligence Transparency Council, which seeks ways to implement transparency initiatives into the processes and practices of agencies within the Intelligence Community (IC).  Mr. Joel also spoke at length about the issues of compliance and impact of transparency in the IC, and he discussed the costs of transparency, in terms of fulfilling the mission of the IC and in ensuring its credibility to the public it serves.

Ms. Sheryl Shenberger, Director of the National Declassification Center (NDC), provided comments on the successes of the NDC in building and refining its processes to both retire the NDC’s 351 million page backlog and to maintain a steady declassification review program of the new accessions received at the NDC each year.  She provided her thoughts on ways the NDC’s authorities and role may expand to continue building upon the successes it has achieved to date.

Leaders of civil society shared thought pieces on recommendations for the new Administration concerning secrecy and the need for limiting classification to the minimum necessary for national security imperatives.  We heard from Dr. Patrice McDermott of OpentheGovernment.org, Mr. Nate Jones from the National Security Archive, Ms. Elizabeth Goitein from the Brennan Center for Justice, and Mr. Steven Aftergood from the Federation of American Scientists.  You may view the white papers drafted by these presenters here.

The members wish to thank those who presented and who attended the public meeting for their interest in the work of the PIDB.  They are pleased to enjoy a healthy relationship with the civil society community and its leaders and hope to facilitate more conversation around the need to improve declassification and better manage classified information as a government.

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Prioritization of Presidential Library Records: The Argentina Declassification Project Releases Records Online

Yesterday, the White House announced the declassification and release of records related to human rights abuses committed under Argentina’s 1976-1983 dictatorship.  The President committed to prioritizing the declassification of these records in March 2016, including the release for the first time of records from U.S. intelligence, law enforcement, and defense agencies.  You can view the records at https://icontherecord.tumblr.com/.

The declassified records originate from four Presidential Libraries operated by the National Archives and Records Administration.  The successful release of these 550 pages of records underscores the PIDB’s recommendation that agencies should continue to prioritize the declassification review of records from the Presidential Libraries.  From the standpoint of their historical significance, the records of former Presidents are, arguably, the most important records needed by the public to obtain an accurate and complete understanding of the nation’s history and role in the world.

The PIDB looks forward to the planned release of more records from this declassification project in 2017 and congratulates the Office of the Director of National Intelligence and the fourteen agencies and departments who participated in this successful release.

 

 

 

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12/8 Public Meeting Preview: Comments from Civil Society Participants

In anticipation of our public meeting this Thursday, December 8, 2016, we have asked our Civil Society participants to share comments and recommendations in the form of white papers.  You will find white paper submissions from Patrice McDermott at OpenTheGovernment.org, Nate Jones from the National Security Archive, Elizabeth Goitein from The Brennan Center for Justice, and Steven Aftergood from the Federation of American Scientists by clicking on the links below.  Thank you for your willingness to participate in this important discussion.

Please remember to REGISTER for the public meeting using Eventbrite.

Clarify and Delimit Scope of Classified “Methods,” by Patrice McDermott, OpentheGovernment.org 

“There’s classified, and then there’s classified:” Tangible Steps to Fix the Classification and Declassification System, by Nate Jones, National Security Archive

Eight Steps to Reduce Overclassification and Rescue Declassification by Elizabeth Goitein, The Brennan Center for Justice

Modernizing the National Security Classification and Declassification
Systems Through the Next Administration’s Executive Order by Steven Aftergood, Federation of American Scientists

 

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“There’s classified, and then there’s classified:” Tangible Steps to Fix the Classification and Declassification System by Nate Jones, National Security Archive

For the Public Interest Declassification Board:

The former head of the Information Security Oversight Office, responsible for oversight of the US classification system, has acknowledged that classification officials joke that “you could easily classify the ham sandwich.”[1]  Barack Obama has summarized the tension between the public’s right to know and the necessity for the government to keep some secrets as: “There’s classified, and then there’s classified.”[2]  Certainly, much work remains for the Public Interest Declassification Board to meet its goal of “modernizing the national security classification and declassification systems.”  Here I suggest three achievable measures that the next Executive Order on Classification could take to reduce over-classification, improve declassification, and begin to rebuild the public’s trust that documents stamped as “secret” actually contain information that should be withheld from the public.

First, the next Executive Order should further improve the efficiency of the National Declassification Center and expand its authority.  The NDC has eliminated much—though certainly not all —of the National Archives’ backlog of historic documents.  Its “indexing on demand” program serves as a quick and efficient mechanism for researchers to request and usually receive previously classified records.  But further improvements are needed for the NDC to achieve its mission of “releasing all we can, protecting what we must.”  It must completely end its “pass fail” reviews where a single classified word in a document can cause it to “go to the back of the vault” and remain classified indefinitely.  It must also stop allowing multiple re-reviews by multiple agencies of historic documents.    The NDC should also, once again, adhere to the principle of automatic declassification; this principle, established in the current Executive Order[3] but not practiced, requires documents to be declassified without a review when they reach a certain age.  This is the only workable solution to the coming exponential avalanche of digital historic records.  The PIDB has correctly called these malpractices as “wasteful, expensive,“ and “unsustainable.”[4]  Fortunately, the NDC has taken note and begun to remedy them.

Once these inefficiencies are modified and the NDC is solidified as the government’s premier, most efficient declassification mechanism, it should expand to target not just classified documents accessioned to NARA but also those held by the Presidential Libraries. Declassifying documents held by the Presidential Libraries is the bureaucratic equivalent to passing a kidney stone.  For a member of the public to even see what is in the Library’s boxes a researcher must submit a Freedom of Information Act request (which usually takes years to process).  Even worse, any document that has ever been deemed classified is not even reviewed during this process and the researcher must submit a second Mandatory Declassification Review request (which again usually takes years), before possibly having the ability to access this critical history (even then, if it has been censored by an overzealous redactor, the MDR appeal process, again, usually takes years).[5] If the incoming administration is able to utilize the strength of the National Declassification Center to declassify all declassifiable material held by the Presidential Libraries, it will be an extremely beneficial accomplishment.

Second, the incoming administration’s Executive Order on Classification should finally fully realize the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document.[6]  This means that no sets of information—including any agency’s operational files—should be automatically exempted from declassification review.  The US government once used this specious claim to attempt to thwart the release of any President’s Daily Brief, ever.  Fortunately, under the current administration the Central Intelligence Agency and National Archives reversed course and released the PDBs from the Johnson and Nixon administrations —though many still have far too many redactions.  Unfortunately, agencies including the CIA continue to ignore the current Executive Order’s instruction that “No information may remain classified indefinitely” and refuse to even review other historically important operational files for release.

The current Executive Order also includes a provision which states that in “exceptional circumstances” an agency head may declassify “properly classified” information when she deems that “the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”  The language in the next Executive Order should be modified so that this common sense logic applies to all classification and declassification decisions, not merely “exceptional circumstances.”  While the fact that President Kennedy agreed to remove Jupiter Missiles from Turkey to end the Cuban Missile Crisis may be technically “properly classified,”[7] it is not a justifiable secret to keep from the public —and greatly harms the government’s ability to keep its true secrets.

Finally, the Public Interest Declassification Board should get into the declassification business.  The Board has done much good work by issuing guidance and recommendations, providing a forum for public insight, and improving classification and declassification from the inside.  But it has done little to actually declassify documents.  The next Executive Order on Classification –or if necessary, legislation– should empower the PIDB get its hands dirty.  The PIDB should have the authority to compel the NDC or another body to declassify the documents, including those referenced in this piece, that it deems in the public interest —there are trillions of them.

[1] Jonathan Abel, “Do You Have to Keep the Government’s Secrets?: Retroactively Classified Documents, the First Amendment, and the Power To Make Secrets Out of the Public Record,” University of Pennsylvania Law Review, Vol. 163, 2015.

[2] Michael D. Shear, “Obama Says Hillary Clinton Wouldn’t Intentionally Endanger U.S. With Emails,” New York Times, April 10, 2016.

[3] Executive Order 13526

[4] The Public Interest Declassification Boart, “Setting Priorities: An Essential Step in Transforming Classification,” December, 2014.

[5] In one startling case, it took the National Security Archive 12 years to win the release of a document held by the George H. W. Bush Presidential Library. See http://nsarchive.gwu.edu/NSAEBB/NSAEBB427/#_ftn12

[6] “Report of the Commission on Protecting and Reducing Government Secrecy,” 1997.

[7] Bill Burr, “Dubious Secrets of the Cuban Missile Crisis,” National Security Archive, February 21, 2014, http://nsarchive.gwu.edu/nukevault/ebb457/

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Clarify and Delimit Scope of Classified “Methods,” by Patrice McDermott, OpentheGovernment.org

A White Paper Submission to the PIDB:

Section 102(d)(3) of the National Security Act of 1947 (1) makes the Director of National Intelligence responsible for protecting intelligence sources and methods from unauthorized disclosure. The director has “very broad authority to protect all sources of intelligence information from disclosure.”(2)

As has been regularly noted, though, almost anything can serve as an intelligence source or method, including a subscription to the daily newspaper. And we have had confirmation since 2013 that assertions—that classified methods were so intertwined with policy discussions that the documents (in particular FISC orders) could not possibly be declassified, even in a redacted form—were not true. They could not be declassified—until they were.(3) Bulk collections of US persons communications records were declared unconstitutional by a three-judge panel for the United States Court of Appeals for the Second Circuit. The FISC has also found in several cases that the government’s surveillance, classified as a method, was unlawful.

Executive Orders on National Security Classification have routinely extended the permission to classify intelligence sources and methods. It is instructive to note that a predecessor order, EO 11652, issued by President Nixon in 1972, gave concrete examples of the sort of potential damage resulting from disclosure that would justify a “Top Secret” classification of the information to be withheld: “… the compromise of vital national defense plans or complex cryptologic and communication intelligence systems; the revelation of sensitive intelligence operations; and the disclosure of scientific or technological developments vital to national security.”(4)

The overbroad terminology and lack of specificity in subsequent Orders has given broad rein to the Intelligence Community. Indeed, twenty-five years later Senator Patrick Moynihan addressed this same issue in the 1997 Moynihan Commission report:

Underlying the rationale of “sources and methods” as the reason that information is kept secret is not the content of the information itself, but instead the way it was obtained. Yet the public and historians generally do not care how the information was collected; they want to know how it was used and what decisions it informed. Too often, there is a tendency to use the sources and methods language contained in the National Security Act of 1947 to automatically classify virtually anything that is collected by an intelligence agency–including information collected from open sources.

… Clarification through issuance of a directive by the Director of Central     Intelligence of the scope of and reasons for sources and methods protection would still ensure that sensitive information stays secret. At the same time, such a directive explaining the appropriate scope of that protection would help prevent the automatic withholding of all information that might relate in any manner, however indirectly, to an intelligence source or method.

National security classification should protect our democracy, not shield government actions that – too often consciously and deliberately – go around democratic practices and subvert constitutional protections. The vagueness and un-delimited scope of classified “intelligence methods” needs to be rectified in the next Executive Order to ensure that it does not permit these uses.

(1) 50 U.S.C.§ 403(d)(3)
(2) Central Intelligence Agency v. Sims, 471 U.S. 159, 168-169 (1985).
(3) seehttps://icontherecord.tumblr.com/post/70683717031/dni-announces-the-declassification-of-the
(4) see http://www.fas.org/sgp/library/quist2/chap_7.html

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Eight Steps to Reduce Overclassification and Rescue Declassification by Elizabeth Goitein, The Brennan Center for Justice

A White Paper Submission to the PIDB:

In a political climate where consensus is rare, there is remarkably little dispute about the need for classification reform. Officials from Democratic and Republican administrations agree that far too much information is unnecessarily classified and that the current declassification process is wholly inadequate to handle the oncoming wave of classified digital information. It is also clear that our dysfunctional classification system harms national security, as it inhibits information-sharing and invites carelessness.
Below are eight measures the next executive order could include that would go far toward reducing overclassification and rescuing declassification.

Reducing Overclassification
Overclassification is enabled by a lack of objective criteria to guide original classification decisions. While officials must be able to exercise discretion and judgment, these should not be unbounded. The classification categories listed in section 1.4 of the order are too broad to provide meaningful constraints. Moreover, the concept of “damage to the national security” is not defined and is extremely elastic. The next executive order should create a White House-led commission of senior agency officials charged with (1) tightening the criteria for classification, and (2) providing a definition of “damage to the national security” that sets an appropriately high bar.

Ensuring that the criteria are sufficiently specific will require addressing the treatment of “intelligence sources and methods.” Some agencies interpret the National Security Act to categorically bar public disclosure of sources and methods, without any further inquiry into their sensitivity. In fact, the law requires the Director of National Intelligence to protect against “unauthorized” disclosures only, and makes clear that the classification of sources and methods must be under appropriate legal authority. The next executive order should clarify that sources and methods may be classified only if they otherwise meet the criteria for classification.

Another problem lies in the guidance provided to derivative classifiers, whose role is not to exercise independent judgment but merely to carry forward original classifiers’ decisions. The topics in some agency classification guides are broad or vague, deputizing derivative classifiers to make their own assessments of national security harm. Many guides are outdated and thus unreliable. And classifiers are understandably overwhelmed by the sheer number of guides and topics. The next Fundamental Classification Guidance Review should be directed at addressing these problems.

A major source of overclassification is the absence of disincentives. In theory, agencies may penalize officials for improper classification, but there is little appetite to do so and no system in place to identify individual offenders. The executive order should direct agencies to implement an auditing system, such as the spot audits recommended by the Brennan Center, with mandatory consequences for repeated or intentional misuse of classification.

The classification of rules or legal interpretations that set binding standards for government conduct – i.e., “secret law” – engenders unique harms and constitutional concerns. The next executive order should impose a higher substantive bar for classifying legal authorities and implement additional procedural safeguards to ensure they are classified only in rare cases of clear necessity. The Brennan Center has developed specific recommendations along these lines.

Rescuing Declassification
The current executive order requires “automatic” declassification of information after 25 years unless it falls under certain exemptions. In fact, declassification is anything but automatic. Multiple agencies perform lengthy “equity” reviews, and the so-called “Kyl-Lott amendment” requires line-by-line review absent certification that the information is “highly unlikely” to contain nuclear information. As long as these impediments remain, declassification has no chance of keeping pace with classification. The next executive order should authorize the National Declassification Center to declassify records at 25 years without agency referral, and empower agencies to make broad categorical decisions about which records are “highly unlikely” to contain nuclear information.

Inexplicably, there is no system in place to identify and declassify information classified for less than 25 years, unless it is the subject of a Freedom of Information Act (FOIA) or Mandatory Declassification Review (MDR) request. Such information often languishes until the 25-year mark is reached. The next executive order should direct the implementation of a two-tiered system for declassifying information classified for less than 25 years. Where the declassification date is tied to the completion of specific operations or events, the document should be marked accordingly, and classification should be “self-cancelling” – i.e., declassification should happen electronically and without review. In all other cases, an electronic alert should trigger review when a document reaches the declassification date.

Finally, MDR has been highly effective in achieving declassification of information classified unnecessarily or for too long. However, it operates too slowly to be useful when the information sought relates to immediate public controversies. MDR lacks an expedited review mechanism like the one that exists under FOIA. The next executive order should rectify this and establish an expedited review track where the requested information would contribute to a significant current public conversation or debate.

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