Secrecy Versus Openness: New Proposed Arrangements for Balancing Competing Needs

Secrecy Versus Openness: New Proposed Arrangements for Balancing Competing Needs

Order Code RS21895
Updated December 22, 2004
CRS Report for Congress
Received through the CRS Web
Secrecy Versus Openness:
New Proposed Arrangements for
Balancing Competing Needs
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Summary
During the latter half of 2004, disputes arose over whether or not to declassify
portions of the sensitive content of reports resulting from congressional investigations
and national commission inquiries into the terrorist attacks of September 11, 2001, the
war in Iraq, and related matters. As a result, some called for Congress to create a special
mechanism for the impartial and expeditious resolution of such disputes (S. 2672/H.R.
4855; S. 2845 amendment). The culmination of one such effort at balancing legitimate
competing needs for secrecy and openness is reviewed in this report, which will no
longer be updated.
Controversy developed during the latter half of 2004 over what some regard to be
zealous use of security classification to make segments of investigative reports officially
secret. William Leonard, director of the Information Security Oversight Office (ISOO),
which oversees the executive branch classification program, took issue with the
classification of portions of Major General Antonio M. Taguba’s report on his
investigation of prisoner interrogation conditions at Abu Ghraib Prison, and called the
action a “bureaucratic impulse” to “almost reflexively reach out to the classification
system.”1
More recent problems with security-classifiable information in congressional
documents dated from the closing months of 2002, when the House Permanent Select
Committee on Intelligence and the Senate Select Committee on Intelligence prepared to
publish their report on their joint inquiry into intelligence community activities prior to,
and after, the September 11, 2001, terrorist attacks.2 “It took more than six months of
1 Shaun Waterman (UPI), “Pentagon Classifying ‘Impulse’ Criticized,” Washington Times, July
8, 2004, p. A6.
2 U.S. Congress, Senate Select Committee on Intelligence and House Permanent Select
Committee on Intelligence, Joint Inquiry into Intelligence Community Activities Before and After
(continued...)
Congressional Research Service ˜ The Library of Congress

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wrangling,” according to a Washington Post editorial, “for the congressional joint
committee investigating the Sept. 11 attacks to extract approval to publish its report —
and even then it had to black out an entire section involving Saudi Arabia.”3 A similar
experience occurred with the July 9, 2004, release of the Senate Intelligence Committee’s
report on the intelligence community’s prewar intelligence assessments on Iraq.4
According to one account, an estimated 20% of the draft report was deleted at the request
of the Central Intelligence Agency (CIA) prior to its publication.5 “It could have been
worse, though,” editorialized the Washington Post: “If Intelligence officials had their way,
nearly half of the 511-page report would have been redacted, rather than the 15 percent
or so that was excised in the final version.”6
These developments prompted calls for the creation of an independent panel for the
impartial and expeditious resolution of disputes over whether or not to declassify portions
of the sensitive content of official reports prior to their publication. In a July editorial on
the matter, the Washington Post said:
No one wants to insist on the release of information that could aid terrorists or other
enemies of the United States. Clearly, some information reviewed by lawmakers or
other investigators must remain secret. But the way the system is structured, no one
can have confidence that the judgments to keep information classified are being made
on the basis of national security alone — and there is ample evidence to the contrary.
The reports already produced have offered a powerful, even chastening demonstration
of the importance of outside oversight and review; it’s hard to see what the arguments
for classifying parts of those documents would have been. Among other effects, this
undermines the credibility of the classifiers when it comes to protecting real secrets.7
Security Classification
Since 1940, security classification policy and procedure — the creation of official
secrets — has been prescribed in a series of presidential executive orders. Current
arrangements are mandated by E.O. 12958, as amended by E.O. 13292.8 Congress has,
on occasion, considered statutorily establishing security classification policy, but has not
2 (...continued)
the Terrorist Attacks of September 11, 2001, report, 107th Cong., 2nd sess., S.Rept. 107-351,
H.Rept. 107-792 (Washington: GPO, 2002).
3 Editorial, “Credible Classifications,” Washington Post, July 13, 2004, p. A14.
4 U.S. Congress, Senate Select Committee on Intelligence, Report on the U.S. Intelligence
Community’s Prewar Intelligence Assessments on Iraq, report, 108th Cong., 2nd sess.
(Washington: GPO, 2004).
5 Neil A. Lewis, “The Committee: C.I.A. Deleted Large Sections, Officials Say,” New York
Times, July 10, 2004, p. A9.
6 Editorial, “Credible Classifications,” Washington Post, July 13, 2004, p. A14.
7 Ibid.
8 See 3 C.F.R., 1995 Comp., pp. 333-356, 3 C.F.R., 2003 Comp., pp. 196-218.

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actively pursued the matter.9 The presidential orders specify three levels of protection,
ranging from “Confidential,” to “Secret,” to “Top Secret,” the last being the highest.
They also indicate types of information that may be so protected, such as “military plans”
and “intelligence activities”; the duration of such protection; and the manner in which
classified information is to be identified and marked. Classification prohibitions and
limitations are provided. For instance, information is not to be classified to conceal
violations of law, inefficiency, or administrative error.
Security-classified documents may become declassified if a date or event for
declassification, prescribed at the time of their classification, is realized; an applicable
time frame, such as 10 years or, by extension, 25 years, from the date of original
classification, lapses; an authorized holder of the classified documents successfully
challenges the continued need for their protected status; or a mandatory review by agency
officials, prompted by a request pursuant to the President’s security classification
executive order or the access procedures of the Freedom of Information (FOI) Act, results
in a determination that classification is no longer warranted.
Accelerated Declassification
Beginning in 1992, Congress has legislated special arrangements for the impartial
and expeditious review of certain kinds of officially secret records, with a view to making
them available to the public. The first of these involved records pertaining to the
November 22, 1963, assassination of President John F. Kennedy in Dallas, TX. Efforts
by the public to gain access to records deriving from federal investigations and
examinations of the assassination of President Kennedy and surrounding events were
frustrated by several complications. Operative since July 1967, the FOI Act provides any
person — individual or corporate, regardless of citizenship — with access to identifiable,
unpublished, existing records of the federal departments and agencies without having to
demonstrate a need or even a reason for such a request.10 The burden of proof for
withholding material sought by the public is placed upon the government. The statute,
however, specifies nine categories of information that may be withheld from disclosure.
Among these stated exemptions to the rule of disclosure are protections for (1)
information properly classified for national defense or foreign policy purposes as secret
under criteria established by an executive order; (2) data specifically excepted from
disclosure by a statute which requires that matters be withheld in a non-discretionary
manner or which establishes particular criteria for withholding, or refers to particular
types of matters to be withheld; (3) personnel, medical, and similar files the disclosure of
which would constitute an unwarranted invasion of personal privacy; and (4) certain kinds
of investigatory records compiled for law enforcement purposes.11 These four exemptions
tended to be the ones most often invoked in support of the withholding of assassination
9 See, for example, 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. Commission on Protecting and Reducing Government Secrecy,
Secrecy (Washington: GPO, 1997); U.S. Congress, Senate Committee on Governmental Affairs,
S. 712 — Government Secrecy Act of 1997, hearing, 105th Cong., 2nd sess., Mar. 25, 1998
(Washington: GPO, 1998).
10 See 5 U.S.C. § 552.
11 The full list of exemptions may be found at 5 U.S.C. § 552(b)(1)-(9).

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materials sought pursuant to the FOI Act. Congressional records were not subject to the
FOI Act, nor were state or local government records, and law enforcement records of
these jurisdictions were exemptible under comparable state FOI laws.
JFK, a 1991 film dramatization of President Kennedy’s assassination and
surrounding circumstances, heightened public interest in the tragedy and explanations of
its occurrence. Subsequently, former President Gerald Ford, the only surviving member
of the President’s Commission on the Assassination of President Kennedy, chaired by
Chief Justice Earl Warren, publicly appealed to the leaders of the House of
Representatives to seek release of all records concerning the assassination.12 Furthermore,
various conspiracy theories, contentions, and unsubstantiated stories about the event and
those allegedly involved in its perpetration were troubling to many Americans. In
response, Congress legislated procedures and conditions for the independent review and
expeditious disclosure of previously unreleased official records relevant to the
assassination of President Kennedy. The vehicle for these arrangements was the President
John F. Kennedy Assassination Records Collection Act of 1992.13
The statute created a temporary, independent, five-member board to manage the
gathering of relevant records for inclusion in the Kennedy Assassination Records
Collection, and to review those records with a view to their immediate or later public
disclosure in whole or in part. Appointed by the President from private life with the
advice and consent of the Senate, board members received security clearances to perform
their duties. Among the records examined by the board members were approximately
250,000 to 300,000 pages of relevant CIA material, and another 23 linear feet of records,
2,500 pages of which related to the portion of the investigation conducted by the
Commission to Investigate CIA Activities Within the United States concerning the
Kennedy assassination.14 The review board completed its work and expired in the closing
months of 1998.15 The resulting President John F. Kennedy Assassination Records
Collection is managed by the National Archives and Records Administration.16 The
review board received a total appropriation of $3,750,000 for its operations.17 In
December 2003, National Archives management generally estimated that 98%-99% of the
collection is open in part for public examination, and indicated that national security is
the principal reason why some materials remained undisclosed at that time.
As the JFK assassination records review board was completing its work, Congress
enacted the Nazi War Crimes Disclosure Act, which created an interagency group to
12 George Lardner, Jr., “Ford Urges House Leaders to Seek Release of All Records on Kennedy
Assassination,” Washington Post, Jan. 30, 1992, p. A12.
13 106 Stat. 3443.
14 U.S. Congress, Senate Committee on Governmental Affairs, The Assassination Materials
Disclosure Act of 1992, hearing, 102nd Cong., 2nd sess., May 12, 1992 (Washington: GPO, 1992),
pp. 51, 357-361, 384-412, 419-427.
15 See U.S. Assassination Records Review Board, Final Report of the Assassination Records
Review Board (Washington: GPO, 1998).
16 For Internet access to the Web homepage for the collection, visit [http://www.archives.gov/
research_room/jfk].
17 See 110 Stat. 3009-340, 111 Stat. 1300.

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“locate, identify, inventory, recommend for declassification, and make available to the
public at the National Archives and Records Administration, all classified Nazi war
criminal records held by the United States,” among other functions.18 The President was
given broad discretion to appoint to the interagency group such government officials as
he deemed appropriate, including, specifically, the director of the Holocaust Museum, the
historian of the Department of State, the Archivist of the United States, and at least three
members from private life. Two years later, this mandate was supplemented by adding
classified Japanese Imperial Government records held by the United States to the efforts
of the interagency group to organize, recommend for declassification, and make available
to the public certain sensitive captured records of the World War II era.19 The National
Archives provides ongoing information concerning the activities and operations of the
interagency group on its website, including copies of Disclosure, the newsletter of the
group, and related research papers.20
New Arrangements
In furtherance of revising classification arrangements, Senator Ron Wyden, with
bipartisan support, introduced S. 2672, the Independent National Security Classification
Board Act, on July 15, 2004. The legislation would have established within the executive
branch a board of three members, appointed by the President with Senate approval, “to
review and make recommendations on overhauling the standards and processes used in
the classification system for national security information,” according to Senator Wyden.
The new panel would have been very similar to the Public Interest Declassification Board
established in 2000 by provisions of Title VII of the Intelligence Authorization Act for
Fiscal Year 2001.21 Referred to the Select Committee on Intelligence, the Wyden bill
sought to improve security classification arrangements generally, and, through requested
reviews of classification decisions, address the disputes over declassifying portions of the
sensitive content of an official report prior to its publication.22 A companion bill, H.R.
4855, was introduced in the House on July 19 by Representative Robert Cramer, Jr., and
was referred to the Permanent Select Committee on Intelligence. No further action was
taken on either bill.
On September 27, 2004, Senator Wyden proposed amending (S.Amdt. 3704) the
proposed National Intelligence Reform Act (S. 2845) with the language of his bill (S.
2672).23 The Wyden amendment was among the first to be considered during Senate
debate on the intelligence reform legislation, which sought to implement many of the
recommendations of the 9/11 Commission. The floor manager for the intelligence reform
bill, Senator Susan Collins, noted that “the administration has expressed grave
reservations about the amendment as it is now drafted,” and suggested that some
18 112 Stat. 1859, 1860.
19 114 Stat. 2864.
20 Available at [http://www.archives.gov/iwg/].
21 114 Stat. 2856.
22 Congressional Record, daily edition, vol. 150, July 15, 2004, pp. S8234-S8237.
23 Ibid., Sept. 27, 2004, pp. S9726-S9728).

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reconciliation of it with other points in the bill might be in order. She proposed some
staff-level adjustment of the amendment.24
On September 29, Senator Wyden offered a revised version of his original
amendment, which (1) renamed the Public Interest Declassification Board (PIDB) as the
Independent National Security Classification Board; (2) empowered it to review, upon the
request of the leaders of congressional armed services, foreign policy, and intelligence
committees, existing or proposed classifications; and (3) authorized it to make
recommendations to the President regarding the continued need for such classifications
as it reviewed. Not later than 60 days after receiving such recommendations, the
President, if he did not accept and implement them, would be required to transmit to
Congress a written justification for his decision. The previous responsibilities of the
PIDB remained unchanged by the amendment. The Wyden amendment, as modified,
was agreed to by the Senate,25 and remained in the Senate intelligence reform bill (S.
2845), which was approved on a 96-2 vote on October 6, and was subsequently sent to
conference.26 The conferees further modified the amendment, rewriting it to indicate (1)
that the PIDB — no name change — reports directly to the President or, upon his
designation, to the Vice President, Attorney General, or other designee, the last of whom
“may not be an agency head or official authorized to classify information”; (2) that the
board is authorized to “review and make recommendations to the President in a timely
manner with respect to any congressional request, made by the committee of jurisdiction,
to declassify certain records or to reconsider a declination to declassify specific records”;
and (3) that, “[i]f requested by the President, the Board shall review in a timely manner
certain records or declinations to declassify specific records, the declassification of which
has been the subject of specific congressional request.” While the board is obligated to
advise a requesting congressional committee as to whether or not it intends to conduct a
declassification review, it is not required to inform the committee of the results of such
a review, which is left to the President’s discretion.27 These modifications appear to
strengthen the President’s control over the board’s conduct of declassification reviews
requested by congressional committees and the findings resulting from such reviews as
are conducted. On December 7, the House, on a 336-75 vote, agreed to the conference
committee report; the Senate gave its approval the following day on an 89-2 vote, clearing
the intelligence reform legislation for the President’s signature. On December 17,
President George W. Bush signed the legislation into law.28
24 Ibid., pp. S9714-S9719.
25 Ibid., Sept. 29, 2004, pp. S9911-S9914.
26 Ibid., Oct. 6, 2004, p. S10543.
27 U.S. Congress, House, Committee of conference, Intelligence Reform and Terrorism
Prevention Act of 2004, H.Rept. 108-796, a report to accompany S. 2845, 108th Cong., 2nd sess.
(Washington: GPO, 2004), p. 64.
28 P.L. 108-458; 118 Stat. 3638.