The Secret Reclassification ProgramMatthew M. Aid |
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At Deadline: NARA Issues Reclassification Audit Report Secret Reclassification Program |
Beginning in the fall of 1999, and continuing unabated for the past seven years, at least six government agencies, including the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the Defense Department, the military services, and the Department of Justice, have been secretly engaged in a wide-ranging historical document reclassification program at the principal National Archives and Records Administration (NARA) research facility at College Park, Maryland, as well as at the presidential libraries run by NARA. Since the reclassification program began, some 9,500 formerly declassified and publicly available documents totaling more than 55,500 pages have been withdrawn from the open shelves at College Park and reclassified because, according to the U.S. government agencies, they had been improperly and/or inadvertently released. The Genesis of the Document Reclassification Program Some U.S. Government agencies moved rapidly to comply with the terms of E.O. 12958. The State Department and Department of Energy (DOE) were notable in this regard, moving quickly to begin declassifying many of their older historical records. In 1997, the Moynihan Commission on Government Secrecy specifically commended the State Department for aggressively declassifying historical documents on U.S. foreign policy and making them available to the public as part of its acclaimed Foreign Relations of the United States (FRUS) series of publications. Energy Secretary Hazel O'Leary declassified historical nuclear weapons stockpile figures and other formerly classified information, such as 1.6 million pages of historical records on human radiation experiments. This was an enormous advance in transparency, especially because Secretary O'Leary worked closely with the Russian government in prompting their release of information on the entire series of nuclear tests undertaken by the Soviet Union under strict secrecy during the Cold War. Secretary O'Leary's "Openness Initiative" was strenuously resisted by the Defense Department. Both State and DOE also aggressively moved to dramatically reduce their backlogs of FOIA requests (2). But by 1999, however, there had been a sea-change within the Clinton administration concerning security classification issues. A controversy over Chinese nuclear espionage, epitomized by the 1998-1999 Wen Ho Lee spy scandal, led to a number of investigations into DOE security practices, and Hazel O'Leary's successor as Energy Secretary, Bill Richardson, tightened the agency's security and halted the Department's document declassification program (3). Moreover, security officials at DOE had become concerned that the implementation of E.O. 12958 had led to the inadvertent release in State Department and other agency records at NARA of "unmarked" restricted and formerly restricted data on nuclear weapons. In the fall of 1998, Congress formally authorized the Department of Energy to remove from public document repositories any and all sensitive nuclear weapons design-related information pursuant to Section 3161 of the National Defense Authorization Act for Fiscal Year 1999, entitled "Protection Against Inadvertent Release of Restricted Data and Formerly Restricted Data." This legal provision is better known as the Kyl-Lott Amendment, named after its two principal sponsors, which was signed into law on October 17, 1998 by President Bill Clinton (4). (For a skeptical look at the Kyl-Lott process see "DOE Puts Declassification Into Reverse," by George Lardner Jr., The Washington Post, May 19, 2001.) According to press reports, the Defense Department and the U.S. intelligence community were also strenuously resisting implementing the provisions of E.O. 12958, with Defense Department and CIA officials making no secret of the fact that they were pressing for a general rollback of the mandatory declassification provisions of E.O. 12958. These agencies used a range of tactics, including delay. For example, at the request of the Department of Defense, E.O. 12958 was amended in November 1999 to extend the automatic declassification deadline another eighteen months until the end of October 2001. By the fall of 1999, the CIA and the rest of the U.S. intelligence community had become increasingly intransigent in terms of their willingness to declassify documents concerning past covert action operations needed for inclusion in the State Department's Foreign Relations of the United States (FRUS) series. In April 1998, a State Department advisory committee comprised of outside historians and chaired by Warren F. Kimball wrote a letter to then Secretary of State Madeleine K. Albright warning that the official record of U.S. foreign policy was in danger of becoming "an official lie" because of the CIA's continuing refusal to declassify documents for the FRUS series (5). More than a year later, the relationship between the State Department and the CIA had further deteriorated. According to comments made before in September 1999 by the then head of the State Department's History Office, William Z. Slany: "What has become apparent and obvious is the Agency's unwillingness to acknowledge amounts of money, liaison relationships, and relationships with organizations, information that any ‘reasonable person' would believe should be declassified. The process has revealed the bare bones of the CIA's intransigence" (6). The battle between the State Department and the U.S. intelligence community over the declassification of historical records came to a head in the fall of 1999, when shortly after the Kyl-Lott Amendment took effect, six U.S. government agencies, including the Central Intelligence Agency (CIA), the Department of Defense, all three of the military services, and the Department of Justice, wrote a letter to NARA stating that it was the shared belief of all of the agencies signing the letter that a number of State Department documents at the National Archives had been inadvertently declassified when they had been released by the State Department, in some cases ten years before. According to NARA officials, the agencies stated that four specific groups of State Department intelligence records, or Lot Files, totaling 55 records boxes had been improperly declassified in that the initial declassification review did not take into account their "equity" in the classified information contained in the documents (7). In 1999, NARA officials withdrew from the public shelves at the National Archive's main College Park, Maryland archival facility all 55 boxes comprising the four "INR Lot Files." According to information provided by NARA, all 55 boxes were once again reviewed by security teams belonging to 13 government agencies between 1999 and 2000, resulting in approximately 1,400 documents totaling 9,750 pages being reclassified and withdrawn from public circulation. The 55 boxes of State Department records were not, however, returned to the open shelves at College Park. Instead, they were retained in the classified storage area on the sixth floor of the College Park facility. The fact that these 55 boxes of State Department records had been withdrawn from the public shelves was not discovered until the author submitted a request to review these records in November and December 2005. Trying to Put the Toothpaste Back in the Tube: Expanding the Document Reclassification Program in 2001 Apparently, at some point after the Bush administration took office in 2001, the expanded group of U.S. government agencies engaged in the security review of the State Department INR records, now demanded the right to go through all other records held at NARA's College Park facility. The central contention of the multiagency group was that the same widespread inadvertent declassification of documents that they had discovered in the four State Department Lot Files in 1999-2000 almost certainly had occurred in virtually every other declassified record group at the National Archives containing defense, foreign affairs, and/or intelligence related documentary materials. At the heart of their argument was the claim that because of a lack of "equity recognition" by the original declassification review teams, in some cases going as far back as the 1970s and 1980s, many additional cases of inadvertent release of classified information had occurred. As a result, the government agencies in question told NARA that they intended to rereview all national security document holdings then sitting on the open shelves of the National Archives in order to find and remove any other documents containing classified information that might also have been inadvertently disclosed. NARA, which has no classification authority, and as such, no control whatsoever over the records it is a custodian of, had no choice but to comply with the demand of the government agencies. According to NARA officials, a classified interagency Memorandum of Understanding (MOU) lays out the underlying nature and purpose of the historical document reclassification program, and governs the conduct of the reclassification effort at the National Archives. Presumably, NARA is a party and/or signatory to this classified MOU. NARA officials have refused to provide any details concerning the contents of the MOU, citing the fact that it is secret. The National Security Archive has a pending FOIA request for the MOU. Unlike the Department of Energy, whose document security review program is covered by 1998 Kyl-Lott Amendment and enjoys its own congressionally approved line-item funding, the post-2001 multiagency document reclassification program does not enjoy either. According to information currently available, the current multiagency document reclassification program has not been authorized or approved by Congress, nor has any money been specifically appropriated for this program by either the House or Senate Intelligence Committees. Lacking Congressional approval for the program, the government agencies involved in the reclassification effort initially resorted to subterfuge to hide their efforts. Beginning in October 2001, each record box designated by NARA staff members for security review was given a label that stated that the records needed to be security reviewed pursuant to the 2001 NARA directive on "Records of Concern." The CIA's leading role in this effort was made clear at the June 4, 2003 closed session of the State Department's Advisory Committee on Historical Diplomatic Documentation, where the CIA representative (identified in the Committee's minutes only as "Sue K.") stated unequivocally that: "Agreement still needs to be reached on documents produced by other agencies with CIA equity, where the documents have been declassified without CIA coordination. If a CIA document was mistakenly declassified by the CIA, the Agency will stand by that decision (9). But if another agency declassified a document with CIA equity that the CIA never had a chance to review, the Agency would like a chance to review that document and consider re-classification." The chairman of the Committee asked the CIA representative where these documents were physically located, and if they had been published. The CIA representative stated that: ". . . some were in Foreign Relations, some were in NARA, and some were in [the forthcoming State Department History Office FRUS] Germany manuscript which were recently declassified by State. The CIA made the point that formal reclassification might draw attention to these documents considered sensitive by the CIA. A simple redaction might work" (10). Raiding the Presidential Libraries
The Damage Done Worst hit by the reclassification program have been the records of the U.S. State Department. According to figures released by the NARA, as of January 2006 a total of 7,711 formerly declassified State Department documents comprising 29,479 pages had been reclassified and removed from the public shelves of the National Archives (13). After the State Department, worst hit by the security reviewers have been the records of the Office of the Secretary of Defense, from which 478 documents totaling 13,689 pages have been reclassified and removed from the public shelves at the National Archives since 2001 (14). The third group of formerly declassified records that military and intelligence community screeners have intensively reviewed are the records of the Headquarters of the U.S. Air Force, from which a total of 282 documents aggregating 5,552 pages have been reclassified and removed from public access at the National Archives (15). Many of the documents that have been withdrawn by the screeners since October 2001 fall somewhere between mundane and banal on the security classification sensitivity scale (16). Moreover, many of the recently withdrawn documents contain information which could easily be construed as embarrassing to the U.S. intelligence community. "Embarrassment," however, is not a subject matter covered under the various exemptions to E.O. 12958. Perhaps the reclassifiers need to be reminded that Section 1.7 (a) (2) of Executive Order 12958, even in the version revised by President Bush, stipulates that "no ... information shall be classified in order to ... prevent embarrassment to a person, organization, or agency." For example, one document contains a complaint from the Director of Central Intelligence to the State Department about the bad publicity the CIA was receiving after its failure to predict anti-American riots in Bogota, Colombia, in 1948. Another document deals with an early unsanctioned CIA psychological warfare program to drop propaganda leaflets into Eastern Europe by hot air balloon that did not go particularly well and was cancelled after the State Department objected to the program. Some of the reclassification decisions by the multiagency security screeners border on the ludicrous. The intelligence community security personnel have reclassified and removed from the NARA open shelves documents that have been published elsewhere, or are publicly available via electronic media from other U.S. government agencies. The security screeners have also reclassified and withdrawn documents that had previously been sanitized to remove sensitive classified information. Worse still, the multiagency reclassification is far from over. According to information provided by NARA, the multiagency historical documentation reclassification effort is not scheduled to be completed until at least March 31, 2007. The remarkable scale of this historical document reclassification effort highlights the diversion of resources that could be used to review "Records of Concern" that currently reside on the open shelves at NARA. Included in this group of documentary records are items such as sabotage manuals dating back to World War II, instruction manuals on how to manufacture high explosives from common garden-variety materials, and technical documents relating to cold war chemical and biological weapons programs that no one would wish to fall into the wrong hands. To try to correct the reclassification abuses, I am working with historians and the public interest community. The first step was a meeting at the National Archives on January 27, 2006 where NARA officials provided a detailed briefing. This meeting also allowed the editor and representatives from the National Security Archive, the National Coalition for History, and Public Citizen to voice their concerns. The most recent step is a letter, dated February 17, 2006, sent to J. William Leonard, the director of the Information Security Oversight Office (ISOO), which plays a key role in monitoring and encouraging more rational classification and declassification practices. The letter describes the problem and asks that Leonard initiate an audit of the documents reclassified at NARA as well as work with the CIA and other agencies in developing more reasonable guidelines for the declassification review of historical documents. The letter also asked Mr. Leonard to issue a public record on the results of the audit and to initiate the return of documents to the files, with excisions only in instances where legitimate secrets need protection. Updates on the latest developments will be posted on the National Security Archive web site. Matthew M. Aid has served as a senior executive with a number of large international financial research and investigative companies over the past twenty years. Aid was the coeditor with Cees Wiebes of Secrets of Signals Intelligence During the Cold War and Beyond (London: Frank Cass, 2001), and is currently completing a multivolume history of the National Security Agency and its predecessor organizations covering the period 1945 to the present. Aid is also the author of a number of articles on intelligence and security issues, focusing primarily on issues relating to Signals Intelligence (SIGINT). This article was first published by the National Security Archive <http://www.gwu.edu/~nsarchiv/>. Endnotes
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