Managing Secrecy: Security Classification Reform - The Government Secrecy Act Proposal

Managing Secrecy: Security Classification Reform - The Government Secrecy Act Proposal

98-298 GOV
CRS Report for Congress
Received through the CRS Web
Managing Secrecy:
Security Classification Reform—The
Government Secrecy Act Proposal
Revised July 8, 1998
Harold C. Relyea
Specialist in American National Government
Government Division
Congressional Research Service ˜ The Library of Congress

ABSTRACT
The end of the Cold War, heightened interest in effecting greater economy and better
management in security classification operations, and the considered recommendations of
a national study commission on official secrecy have all contributed to the proposed
Government Secrecy Act (H.R. 1546/S. 712), introduced on a bicameral, bipartisan basis
to establish, for the first time, a statutory mandate for security classification and
declassification. This report follows the development and progress of this legislation and
will be updated as events warrant.

Managing Secrecy: Security Classification Reform—The
Government Secrecy Act Proposal
Summary
The end of the Cold War, heightened interest in effecting greater economy and
better management in government operations, and the considered recommendations
of a national study commission on official secrecy have all contributed to legislation
reforming the security classification program and giving it a statutory foundation.
Largely prescribed in a series of successive presidential executive orders issued over
the past 50 years, security classification policy and procedure provide the rationale
and arrangements for designating information officially secret for reasons of
protecting the security of the nation.
Legislating a statutory security classification system was first recommended in
1973 by the House Committee on Government Operations in its third report to the
93rd Congress. Proponents of such a proposal view it as the mandating of a program
in accordance with constitutionally prescribed legislative procedure. The resulting
statute would also afford Congress a stronger role in oversight of the program,
including its efficiency and economy of operation. Prior to the 105th Congress, the
prospect of legislating a statutory basis for classifying information was most recently
considered by a House committee in 1994.
Current bipartisan and bicameral reform efforts concentrating on the proposed
Government Secrecy Act (S. 712/H.R. 1546) evidence renewed congressional interest
in establishing a statutory mandate for security classification and declassification.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Classification History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Congressional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Reform Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Legislation Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Pro/Con Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Pros . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Responsible Information Protection . . . . . . . . . . . . . . . . . . . . . . . . . 11
Balanced Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Automatic Declassification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Cons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Nebulous Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stronger Congressional Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Managerial Uncertainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Legislative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Additional Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Managing Secrecy:
Security Classification Reform—The
Government Secrecy Act Proposal
The end of the Cold War, heightened interest in effecting greater economy and
better management in government operations, and the considered recommendations
of a national study commission on official secrecy have all contributed to legislation
reforming the security classification program and giving it a statutory foundation.
The current reform proposal, the Government Secrecy Act (S. 712/H.R. 1546), has
been introduced in the 105th Congress on a bipartisan, bicameral basis by the
congressional members of the Commission on Protecting and Reducing Government
Secrecy. The background context of this legislation, the issues attending it, and its
progress in the present Congress constitute the content of this report.
Introduction
The protection of government information vital to the defense and security of
the nation has long been a matter of federal policy and practice. Several
arrangements have been developed in this regard, including encryption, document
registry, and security classification. The last of these is the practice of designating
information officially secret in accordance with policy criteria and, usually, at one of
three levels of sensitivity—Top Secret, Secret, or Confidential. Consequently, such
information may be available to authorized individuals, that is, those who have been
granted a security clearance for the level of information sensitivity involved and who
have a “need to know” or, in other words, require access in order to perform their
duties.
As the history of security classification policy indicates, Congress long deferred
to armed forces regulations as a basis for establishing the principles and practices of
official secrecy. In 1857, the President was statutorily empowered
to prescribe such regulations, and make and issue such orders and instructions,
not inconsistent with the Constitution or any law of the United States, in relation
to the duties of all diplomatic and consular offices, the transaction of their
business ..., the safekeeping of the archives, the public property in the hands of
all such officers [and] the communication of information ... from time to time,
as he may think conducive to the public interest.1
1 11 Stat. 52, at 60.

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With the arrival of the 20th century, Congress enacted criminal punishments for
the improper disclosure of national defense secrets in 1911 and, again, in 1917.
2
3 It
was also in 1917 that both the Commissioner of Patents4 and the President wer
5
e
statutorily authorized to make secret those patent applications which, if disclosed,
might be “detrimental to the public safety or defense, or may assist the enemy or
endanger the successful prosecution of the war.”
In 1946 and in 1954,
6
Congress legislated the required protection of certai
7
n
atomic energy information, denominated Restricted Data, from the moment of its
creation. Generally speaking, Restricted Data was understood to have military or
weapons production value. Because such information is “born secret,” an affirmative
determination of the government is necessary for it to be removed from its privileged
status.
In 19478 and, again, in 1949, Congress required the Director of Centra
9
l
Intelligence to protect “intelligence sources and methods from unauthorized
disclosure.”
Classification History
Security classification principles and procedures, as noted above, were initially
expressed in armed forces regulations, the first such directive creating a prototype
security classification system appearing in early 1912. Security classification policy
assumed a presidential character in 1940. The reasons for this late development are
not entirely clear, but it probably was prompted by desires to clarify the authority of
civilian personnel in the national defense community to create official secrets, to
establish a broader basis for protecting military information in view of growing
global hostilities, and to manage better a discretionary power of increasing
importance to the entire executive branch.
Relying upon a 1938 statute concerning the security of armed forces
installations and equipment and “information relative thereto,”10 Franklin D.
Roosevelt issued the first presidential security classification directive, E.O. 8381, in
March 1940. However, the legislative history of the statute which the President
relied upon to issue his order provided no indication that Congress anticipated that
such a security classification arrangement would be created.
2 36 Stat. 1084.
3 40 Stat. 217.
4 40 Stat. 394.
5 40 Stat. 411, at 422.
6 60 Stat. 755, at 766.
7 68 Stat. 919, at 940.
8 61 Stat. 495, at 498.
9 63 Stat. 208, at 211.
10 52 Stat. 3.

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Other executive orders followed. E.O. 10104, adding a fourth level of classified
information, aligned U.S. information security categories with those of our allies in
1950. A 1951 directive, E.O. 10290, completely overhauled the security
classification program. Information was now classified in the interest of “national
security,” and classification authority was extended to non-military agencies which
presumably had a role in “national security” policy.
Criticism of the 1951 order prompted President Dwight D. Eisenhower to issue
a replacement, E.O. 10501, in November 1953. This directive and later amendments
to it, as well as E.O. 11652 of March 8, 1972, and E.O. 12065 of June 28, 1978,
successively narrowed the bases and limited discretion for assigning official secrecy
to agency records.
Shortly after President Ronald Reagan issued E.O. 12356 on April 2, 1982, it
was criticized for reversing the limiting trend set by prior security classification
orders of the previous 30 years by expanding the categories of classifiable
information, mandating that information falling within these categories be classified,
making reclassification authority available, admonishing classifiers to err on the side
of classification, and eliminating automatic declassification arrangements.
With the democratization of many eastern European countries, the demise of the
Soviet Union, and the end of the Cold War, President William Clinton ordered a
sweeping review of Cold War rules on security classification in general and of E.O.
12356 in particular with a view to reform.11
Many began to suspect that the security classification program could be
improved when the Department of Defense Security Review Commission, chaired
by retired General Richard G. Stilwell, declared late in 1985 that there were “no
verifiable figures as to the amount of classified material produced in DoD and in
[the] defense industry each year.” Nonetheless, it was concluded that “too much
information appears to be classified and much at higher levels than is warranted.”12
The cost of the security classification program became clearer when the General
Accounting Office reported in October 1993 that it was “able to identify
governmentwide costs directly applicable to national security information totaling
over $350 million for 1992.” After breaking this figure down—it included only $6
million for declassification work—the report added that “the U.S. government also
spends additional billions of dollars annually to safeguard information, personnel,
and property.”13

11 Tim Weiner, “President Moves to Release Classified U.S. Documents,” New York Times,
May 5, 1993, p. A18.
1 2 U.S. Department of Defense, Department of Defense Security Review Commission,
Keeping The Nation’s Secrets (Washington: DOD, 1985), pp. 48-49.
1 3 U.S. General Accounting Office, Classified Information: Costs of Protection Are
Integrated With Other Security Costs, GAO report GAO/NSIAD-94-55 (Washington:
October 1993), p. 1.

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Established in April 1993, President Clinton’s security classification task force
transmitted its initial draft order to the White House seven months later. Circulated
among the departments and agencies for comment, the proposal reportedly
encountered strong opposition from officials within the intelligence and defense
communities. More revision of the draft directive followed.
14
As delay in issuing the new order continued, some in Congress considered
legislating a statutory basis for classifying information in the spring of 1994. In the
15
fall, the President issued an order declassifying selected retired records at the
National Archives. Then, after
16
months of unresolved conflict over designating an
oversight and policy direction agency, a compromise version of the order was given
presidential approval on April 17, 1995.17
Congressional Interest
Only in the past quarter century has Congress evidenced interest in
supplementing or displacing presidential executive orders prescribing security
classification policy and procedure. Legislating a statutory security classification
system was first recommended in 1973 by the House Committee on Government
Operations in its third report to the 93rd Congress. The following year, variou
18
s
bills to effect this proposal were introduced in both houses of Congress, and several
days of hearings on them were held by committees of jurisdiction.
19
Proponents of
such bills view them as mandating a program in accordance with constitutionally
prescribed legislative procedure. The resulting statute would also afford Congress
a stronger role in oversight of the program, including its efficiency and economy of
operation. Prior to the 105th Congress, the prospect of legislating a statutory basis
1 4 See David C. Morrison, “For Whose Eyes Only?” National Journal, vol. 26, Feb. 26,
1994, pp. 472-476; Tim Weiner, “U.S. Plans Overhaul on Secrecy, Seeking to Open
Millions of Files,” New York Times, Mar. 18, 1994, pp. A1, B6; R. Jeffrey Smith, “CIA,
Others Opposing White House Move to Bare Decades-Old Secrets,” Washington Post, Mar.
30, 1994, p. A14.

15 See U.S. Congress, House Permanent Select Committee on Intelligence, A Statutory Basis
for Classifying Information, hearing, 103rd Cong., 2nd sess., Mar. 16, 1994 (Washington:
GPO, 1995).
16 See E.O. 12937, in Federal Register, vol. 59, Nov. 15, 1994, pp. 59097-59098.
17 See E.O. 12958, in Federal Register, vol. 60, Apr. 20, 1995, pp. 19825-19843.
1 8 U.S. Congress, House Committee on Government Operations, Executive Classification
of Information—Security Classification Problems Involving Exemption (b)(1) of the
Freedom of Information Act (5 U.S.C. 552), 93rd Cong., 1st sess., H. Rept. 93-221
(Washington: GPO, 1973), p. 104.
1 9 See U.S. Congress, Senate Committee on Government Operations, Legislation on
Government Secrecy, committee print, 93rd Cong., 2nd sess. (Washington: GPO, 1974);
U.S. Congress, Senate Committee on Government Operations, Government Secrecy,
hearings, 93rd Cong., 2nd sess., May 22, 23, 29, 30, 31, and June 10, 1974 (Washington:
GPO, 1974). Also see U.S. Congress, House Committee on Government Operations,
Security Classification Reform, hearings, 93rd Cong., 2nd sess., July 11, 25, and Aug. 1,
1974 (Washington: GPO, 1974).

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for classifying information was most recently considered by a House committee in
1994.20
That Congress might legislate in this area had been suggested in a 1973 majority
opinion of the Supreme Court.21 Earlier, in a 1952 concurring opinion in the
Youngstown case, Associate Justice Robert H. Jackson had observed that there is a
“zone of twilight” in which the President and Congress “may have concurrent
authority, or in which its distribution is uncertain.” Security classification polic
22
y
and procedure would appear to occupy such a “zone of twilight.”
Reform Proposals
The security classification system modifications—including a statutory mandate
for the program—embodied in the proposed Government Secrecy Act (S. 712/H.R.
1546), the reform bill offered in the 105th Congress, derive from the
recommendations of the Commission on Protecting and Reducing Government
Secrecy. This temporary study panel was mandated in Title IX of the Foreign
Relations Authorization Act, Fiscal Years 1994 and 1995. The provision establishing
the commission was included in a version of the authorization legislation developed
by the Senate Committee on Foreign Relations which was introduced as an original
bill (S. 1281) on July 23, 1993, the same day the committee report on the measure
was submitted. The c
23
ommission’s mandate cleared the conference committee, was
approved by both Houses, and became law when the President signed the
authorization legislation on April 30, 1994.24
Established for a two-year period, the commission was charged:
(1) to examine the implications of the extensive classification of
information and to make recommendations to reduce the volume of
information classified and thereby to strengthen the protection of
legitimately classified information; and
(2) to examine and make recommendations concerning current
procedures relating to the granting of security clearances.
Popularly known as the Commission on Government Secrecy, its 12 members
included:

20 U.S. Congress, House Permanent Select Committee on Intelligence, A Statutory Basis for
Classifying Information, hearing, 103rd Cong., 2nd sess., Mar. 16, 1994 (Washington: GPO,
1995).
21 Environmental Protection Agency v. Mink, 410 U.S. 73, at 83 (1973).
22 Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579, at 637 (1952).
23 Congressional Record, daily edition, vol. 139, July 23, 1993, pp. S9367, S9372.
2 4 108 Stat. 382; the commission’s charter appears at 108 Stat. 525 and is reproduced in
U.S. Commission on Protecting and Reducing Government Secrecy, Report of the
Commission on Protecting and Reducing Government Secrecy (Washington: GPO, 1997),
Appendix B.

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! Four members appointed by President Clinton—John M. Deutch, then
Director of Central Intelligence and previously Deputy Secretary of Defense;
John D. Podesta, Assistant to the President at the White House Office;
Richard K. Fox, Jr., a career foreign service officer and former Senior Deputy
Inspector General of the Foreign Service; and Ellen Hume, a veteran national
journalist and executive director of the Public Broadcast System’s Democracy
Project;
! Two members appointed by Senate Majority Leader George
Mitchell—Senator Daniel P. Moynihan and Harvard University national
security and international affairs professor Samuel P. Huntington;
! Two members appointed by Senate Minority Leader Robert Dole—Senator
Jesse Helms, Ranking Minority Member and later chairman of the Committee
on Foreign Relations, and Alison B. Fortier, a Lockheed Martin Corporation
missile defense program director and former senior director of the National
Security Council staff under President George Bush;
! Two members appointed by Speaker of the House Tom Foley—
Representative Lee Hamilton, long a member and then chairman of the
Committee on Foreign Affairs, and Maurice Sonnenberg, an investment
banker with expertise in foreign policy, international trade, and foreign
investment, and an adviser to government officials on matters in these areas;
and
! Two members appointed by House Minority Leader Robert Michel—
Representative Larry Combest, a member and then chairman of the Permanent
Select Committee on Intelligence, and Martin C. Faga, a senior vice president
and general manager at the MITRE Corporation and former director of the
National Reconnaissance Office and Assistant Secretary of the Air Force for
Space.25
The statutory charter of the Commission on Government Secrecy provided that
the panel’s leaders be elected by its members from among themselves. This was
done at the commission’s initial meeting on January 10, 1995. Senator Moynihan
was chosen to be chairman and Representative Combest was elected vice chairman.
The commission held 13 en banc meetings, the first of which occurred on
January 10, 1995, when leaders were elected and commissioners were formally
introduced to one another. At the next meeting, on March 30, the commissioners
were officially sworn in and initial witnesses were heard. In May, June, and July, the
commission received the views of additional witnesses and its senior staff. A
meeting in October was devoted to staff presentations; an expert witness was heard
at a December session. In March and April 1996, the commission held a monthly

25 Profiles of the members of the commission appear in U.S. Commission on Protecting and
Reducing Government Secrecy, Report of the Commission on Protecting and Reducing
Government Secrecy, Appendix D.

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meeting with industry representatives. These industry deliberations were the panel’s
first hearings outside Washington, D.C.
The commission conducted a “Public Access Roundtable” at the National
Archives and Records Administration in May 1996. In July, November, and
December, the panel held monthly meetings to discuss, draft, and revise its final
report.26 On March 3, 1997, the commission’s final report was transmitted to
President Clinton and to the leadership of the House and the Senate.
In meeting the objectives of its charge, the commission, as stated in its final
report, sought “to promote both the effective protection of information where
warranted and the disclosure of information where there is not a well-founded basis
for protection or where the costs of maintaining a secret outweigh the benefits.”27
The panel expressed concern that the security classification system had become so
vast, so complex, and so burdensome that its ability to secure properly information
which should be protected had suffered.
The commission did not appear to believe that the reforms effected by E.O.
12958, issued by President Clinton in April 1995, produced the proper policy
balance, saying, “although the current executive order on classification places a
greater burden on those who seek to classify information, existing incentives still
tend to promote secrecy over openness.” What the panel found was “a system which
neither protects nor releases national security information particularly well.”28
In making its investigation, however, the commission admittedly “did not try to
examine every facet of the security system.” Some areas, such as “the myriad of
physical and technical security measures used to safeguard information,” had been
recently and thoroughly scrutinized, in its view, by other study panels. The
maintenance of secrecy in the legislative and judicial branches was also disregarded,
“except in areas that relate to the classification, declassification, personnel security
and information systems security criteria and procedures developed by the Executive
Branch.” Similarly, the panel did not probe “the impact of various government
security requirements on the private sector—including patent, trade secret, and other
invention secrecy rules and export control laws and regulations—except where they
relate directly to the protection of government secrets.”29
In addition, the commission did not address certain issues “best considered in
the context of a broader examination of intelligence roles and missions,” such as “the
appropriate status of the U.S. intelligence budget, role and conduct of covert actions,
procedures for intelligence sharing with allies and international organizations, and
2 6 Formal meetings of the commission, the activities and presentations of individual
commissioners and of commission staff, and the sources consulted by commission staff are
outlined in U.S. Commission on Protecting and Reducing Government Secrecy, Report of
the Commission on Protecting and Reducing Government Secrecy, Appendix F.
27 Ibid., p. 1.
28 Ibid.
29 Ibid., p. 3.

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relationships between intelligence and law enforcement objectives.” Again, these
matters, in the panel’s view, had been recently and thoroughly scrutinized by other
study bodies.30
The commission’s final report, transmitted to the President and the
congressional leadership and released to the public in early March 1997, offered 16
recommendations, unanimously approved by the commission.31
! Statutorily establish the basic principles of security classification and
declassification programs.
! Implement within one year a single set of security standards for special access
programs.
! Take certain specific actions to enhance the proficiency of classifiers and
improve their accountability by requiring additional information on the
rationale for classification, by improving classification guidance, and by
strengthening training and evaluation programs.
! Base classification decisions, including the establishment of special action
programs, on a range of factors in addition to damage to the national security,
such as the cost of protection, vulnerability, threat, risk, value of the
information, and public benefit from release.
! Assign responsibility for classification and declassification policy
development and oversight to a single executive branch body, designated by
the President and independent of the agencies that classify.
! Statutorily mandate a central office—a National Declassification Center—at
an existing agency to coordinate federal declassification policy and activities.
! Clarify, through the issuance of an intelligence community directive by the
Director of Central Intelligence, the appropriate scope of sources and methods
protection as a basis for the continuing classification of intelligence
information.
! Restructure agencies’ records management programs and systematic
declassification programs to maximize access to records that are likely to be
the subject of significant public interest.
! Establish, by statute or regulation, five specified guiding principles as the
essential elements of an effective personnel security system.
30 Ibid.
The report was made available electronically at the Government Printing Office website,
31
http://www.access.gpo.gov/int.

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! Allow individuals in both government and industry holding valid security
clearances to move from one agency or special program to another without
further investigation or adjudication.
! Eliminate current requirements for neighborhood interviews and for
interviewing educational references in every security background
investigation.
! Achieve greater balance between the initial security clearance process and
programs for continuing evaluation of cleared employees.
! Congress and the executive branch should reevaluate the requirement to
utilize a new financial disclosure form and consider staying its
implementation until there is further evaluation concerning how it would be
used and whether its benefits exceed its cost.
! Certain specified actions should be taken to encourage research on the
polygraph, to assess the credibility of the polygraph, and to identify potential
technological advances that could make the polygraph more effective in the
future.
! Revise the Computer Security Act of 1987 in certain specified ways to reflect
the realities of information systems security in the Information Age.
! Develop an information systems security career path across the federal
government.
Legislation to further the commission’s first, third, fourth, fifth, and sixth
recommendations was introduced in both houses of Congress on May 7, 1997. The
House legislation (H.R. 1546) was offered by Representative Hamilton for himself
and Representative Combest; the Senate proposal (S. 712) was introduced by Senator
Moynihan for himself and Senator Helms. The bills, denominated the Government
32
Secrecy Act of 1997, are identical.
Legislation Summary
Section 1:
provides the short title, the Government Secrecy Act of 1997.
Section 2:
states that the purpose of the act is to promote the effective
protection of classified information and the disclosure of
information where there is not a well-founded basis for
protection, or where the costs of maintaining a secret outweigh
the benefits.
Section 3:
expresses seven congressional findings, including the issuance
of the report of the Commission on Government, recommending
3 2 See Congressional Record, daily edition, vol. 143, May 7, 1997, pp. H2350, S4110-
S4114.

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that the volume of information classified be reduced and the
protection of classified information be strengthened; states that
the absence of a statutory framework has resulted in unstable
and inconsistent classification and declassification policies,
excessive costs, and inadequate implementation; states that
American taxpayers incur substantial costs—more than $5.2
billion in 1996—as several million documents are classified
each year; and states that the prospect that a statutory foundation
for the classification and declassification of information is likely
to result in a more stable and cost-effective set of policies, a
more consistent application of rules and procedures, and an
opportunity for greater oversight by Congress of classification
and declassification activities.
Section 4:
authorizes the President, in accordance with the act, to protect
from unauthorized disclosure, information in the possession and
control of the executive branch, when there is a demonstrable
need to do so in order to protect the national security of the
United States; directs the President to ensure that the amount of
information classified is the minimum necessary to protect the
national security; provides requirements for the establishment of
standards and procedures for classifying and declassifying
information; and requires each head of an agency that is
responsible for the classification and declassification of
information to submit to Congress each year a report describing
the application of the classification and declassification
standards and procedures of that agency during the preceding
fiscal year.
Section 5:
directs the President to establish within an existing agency a
National Declassification Center to (1) coordinate and oversee
the declassification policies and practices of the federal
government and (2) provide technical assistance to agencies in
implementing such policies and practices, in accordance with
the act; establishes the National Declassification Advisory
Committee to provide advice to the center and to make
recommendations concerning declassification priorities and
activities; and mandates annual reports by the center to the
President and Congress on its activities during the preceding
fiscal year, and on the implementation of agency declassification
practices and its efforts to coordinate those practices.
Section 6:
states that nothing in the act shall be construed to authorize the
withholding of information from Congress.
Section 7:
provides definitions of several terms used in the act.
Section 8:
states that the act shall take effect 180 days after the date of its
enactment.

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Constitutionality
The major threshold consideration concerning the enactment of a statutory
security classification-declassification program is the question of whether or not such
legislation breaches the separation of powers doctrine of the Constitution. Some may
contend that the President has long set security classification policy and practice
through executive orders, their issuance being an exercise of both Chief Executive
and Commander in Chief authority. Congressionally adopted legislation in these
matters not only creates a policy clash, but also encroaches upon the President’s
authority to determine such information protection arrangements.
Proponents of legislation establishing basic security classification-
declassification policy and practice contend that such a proposal recognizes that
information protection arrangements fall in Justice Jackson’s “zone of twilight”
noted earlier. It is, in brief, a shared power. Moreover, Congress has previously
legislated in these matters, in regard to atomic energy information and intelligence
sources and methods, without constitutional question. Also, the Supreme Court
seems to have recognized congressional authority to legislate in this area. Finally,
33
the statutory classification-declassification program proposed in the Government
Secrecy Act was directly and unanimously recommended by a national study
commission which counted a high level intelligence and defense official of the
Clinton Administration and a senior Clinton White House staff assistant as members.
Pro/Con Considerations
Pros
Responsible Information Protection. The legislation makes the application
of security classification to official records on a standard of “demonstrable need to
... protect the national security of the United States” by requiring that classifying
officials identify themselves on documents marked for secrecy protection, and by
authorizing challenges to the need for secrecy protection.
Balanced Perspective. The legislation encourages a balanced perspective in
classification actions with a balancing test: classifiers shall “weigh the benefit from
public disclosure of the information against the need for initial or continued
protection of the information under the classification system.” It also
institutionalizes expert views and assessments of classification/declassification
operations in an advisory committee with members selected on a bipartisan,
bicameral basis with presidential involvement.
Automatic Declassification. The legislation seeks to foster the efficiency,
economy, and integrity of the classification system by establishing automatic
33 See the discussion and citations in footnotes 6-9, 21, and 22 of this report.

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declassification schedules of 10- and 30-year maximums, while still permitting the
continued protection of a very limited quantity of records for a period longer than 30
years.
Cons
Nebulous Standard. The legislation specifies that classification may occur “in
order to protect the national security of the United States.” The “national security”
term is defined in the legislation to mean “the national defense or foreign relations
of the United States.” These terms, on their face and without further specificity, are
both ambiguous and overly broad. Their use would appear to be contrary to the
expectations of the Commission on Protecting and Reducing Government Secrecy,
which urged “that classification actions ... no longer be based solely on damage to the
national security” and encouraged that consideration, in this regard, be given to
factors such as “the cost of protection, vulnerability, threat, risk, value of the
information, and public benefit from release.”34
Stronger Congressional Role. The legislation authorizes the President to
establish unilaterally a National Declassification Center “within an existing agency.”
Congress is not provided any role in this action, even in the event the President
places the center in a seemingly inappropriate agency, such as one heavily engaged
in classification operations. Moreover, there is no allowance for a congressional
authorization of appropriations for the center, or Senate confirmation of the official
directing the center
Managerial Uncertainty. The legislation authorizes the establishment of a
National Declassification Center “to coordinate and oversee the declassification
policies and practices of the Federal Government” and to provide “technical
assistance,” but does not indicate where in the federal government similar
responsibilities for coordinating and overseeing classification policy and practice are
vested. If the legislation assumes that the Information Security Oversight Office
(ISOO), created by E.O. 12958 mandating the existing classification program, will
continue, inefficiencies and managerial conflicts seem likely to result. If the
legislation assumes the demise of ISOO, then responsibility for coordinating and
overseeing classification policy and practice is uncertain.
Legislative Action
Introduced in the Senate on May 7, 1997, as S. 712, the legislation was read
twice and referred to the Committee on Governmental Affairs. That same day, the
committee held a hearing on the report of the Commission on Government Secrecy.35
3 4 U.S. Commission on Protecting and Reducing Government Secrecy, Report of the
Commission on Protecting and Reducing Government Secrecy, p. C-1.
3 5 See U.S. Congress, Senate Committee on Governmental Affairs, Report of the
Commission on Protecting and Reducing Government Secrecy, hearing, 105th Cong., 1st
(continued...)

CRS-13
Introduced in the House on May 7, 1997, as H.R. 1546, the legislation was
referred to the Committee on Government Reform and Oversight, with some portions
also referred to the Permanent Select Committee on Intelligence and the Committee
on National Security for a period to be subsequently determined by the Speaker.
Within the Committee on Government Reform and Oversight, the bill was referred
to its Subcommittee on National Security, International Affairs, and Criminal Justice
on May 13. Executive comment on the legislation was requested from the
Department of Defense, the agency responsible for the largest number of
classification actions annually, on May 20.
In a March 3, 1998, colloquy on the Senate floor, both the Majority Leader and
the Minority Leader announced they were cosponsoring the legislation. The Senate
36
Committee on Governmental Affairs held a hearing on S. 712 on March 25.
Witnesses included Edmund Cohen, director of information management, Central
Intelligence Agency; Bill Leonard, director of security programs, Department of
Defense; Bryan Siebert, director of the Office of Declassification, Department of
Energy; Steven Garfinkel, director of the Information Security Oversight Office,
National Archives and Records Administration; Jeremy Gunn, executive director and
general counsel, President John F. Kennedy Assassination Records Review Board;
and Steven Aftergood, director of the Project on Government Secrecy, Federation of
American Scientists.
On June 17, the Committee on Governmental Affairs met to consider S. 712 and
adopted substitute language for the original text. The committee then ordered the bill
to be reported favorably with the amending language. The reported legislation,
according to a committee summary of the substitute text:
! Provides a statutory basis for [a] national security information classification system
by specifically authorizing the President to protect information from disclosure when
there is a demonstrable need to do so in order to protect U.S. national security
(similar to underlying bill);
! Authorizes the President to establish categories of information that may be
classified; categories must be developed by notice and comment (similar to
underlying bill);
! Authorizes agencies to implement the Act and the President’s categories by
establishing standards and procedures for classifying and declassifying information
(similar to underlying bill);
! Limits classification only to cases in which the harm to national security reasonably
expected from disclosure of the information outweighs the public interest in the
disclosure of the information (similar to underlying bill);
! Establishes criteria to guide agency classification decisions for conducting ther
balancing test between the harm to national security and the public interest in
35 (...continued)
sess., May 7, 1997 (Washington: GPO, 1997).
36 See Congressional Record, daily edition, vol. 144, Mar. 3, 1998, pp. S1249-S1253.

CRS-14
disclosure; the national security criteria are taken directly from the Clinton
Executive Order [E.O. 12958] and have been applied by agencies since 1995; the
public interest criteria are newly developed for the substitute (these criteria are not
in the underlying bill);
! Mandates written justification for original and derivative classification decisions
(similar to underlying bill);
! Establishes procedures similar to those of the current Clinton Executive Order on
declassification of information classified under the Act: the general rule is that
information will be subject to declassification review 10 years after classification;
at that time, information will either be declassified or it can be protected for another
15 years. At 25 years, it will be subject to another declassification review and must
be declassified at that time unless “extraordinary circumstances” require that it
remain classified. Information that remains classified beyond 25 years will be
subject to periodic review for declassification on a schedule established by the
President. The bill also provides a procedure in which agencies can, at the time of
classification, exempt information from the initial 10-year review if “there is no
likely set of circumstances under which declassification would occur” at the 10-year
review; such information would receive its initial declassification review at 25 years
(this process is derived from the current Executive Order and builds on the
provisions of the underlying bill, but is significantly more detailed);
! Makes a conforming amendment to exemption 1 of the Freedom of Information Act
[5 U.S.C. 552(b)(1)] (similar to underlying bill);
! Transfers the Information Security Oversight Office from the [National] Archives
to the Executive Office of the President, changes its name to the Office of National
Classification and Declassification Oversight, and beefs up its functions and
oversight responsibilities (not in underlying bill);
! Establishes a Classification and Declassification Review Board similar to the current
interagency review panel established by the Clinton Executive Order to hear agency
appeals from decisions of the Director of the Oversight Office (entirely new
provision not in underlying bill);
! Provides for appeal of Review Board decisions to the President and precludes
judicial review of agency classification and declassification decisions (entirely new
provision); [and]
! Clarifies that nothing in the bill shall be construed as authorizing the withholding of
information from Congress (similar to underlying bill).37
The bill now awaits Senate floor consideration.
3 7 U.S. Congress, Senate Committee on Governmental Affairs, “Summary of Committee
Substitute to S. 712,” undated.

Additional Reading
U.S. Commission on Protecting and Reducing Government Secrecy, Report of the
Commission on Protecting and Reducing Government Secrecy (Washington:
GPO, 1997).
U.S. Congress, House Permanent Select Committee on Intelligence, A Statutory
Basis for Classifying Information, hearing, 103rd Cong., 2nd sess., Mar. 16,
1994 (Washington: GPO, 1995).
U.S. Congress, Senate Committee on Governmental Affairs, Report of the
Commission on Protecting and Reducing Government Secrecy, hearing, 105th
Cong., 1st sess., May 7, 1997 (Washington: GPO, 1997).
U.S. General Accounting Office, Classified Information: Costs of Protection Are
Integrated With Other Security Costs, GAO report GAO/NSIAD-94-55
(Washington: October 1993).
U.S. Library of Congress, Congressional Research Service, Commission on
Protecting and Reducing Government Secrecy: A Brief Overview, by Harold C.
Relyea, CRS report 97-770 GOV (Washington: Aug. 11, 1997).
U.S. Library of Congress, Congressional Research Service, Security Classification
Policy and Procedure—E.O. 12958: The Clinton Administration Directive, by
Harold C. Relyea, CRS report 97-771 GOV (Washington: Aug. 12, 1997).