You’ve heard of the climate deadline looming in Copenhagen, and the health care deadline looming on Capitol Hill. But this season, there’s another deadline coming up that—shhh—hasn’t gotten much attention.
If no changes or amendments are made to the Bush administration’s standing classification policy, at the stroke of midnight on December 31, countless documents that are twenty-eight years old or older will be automatically declassified—whether or not the agencies who contributed information to the records have had a chance to give them the all-clear for release.
Several press accounts, including one from the Boston Globe in November, suggest that one way or another Obama will grant government’s secret makers a reprieve at the expense of archivists, historians, journalists, and citizens eager to get a look at the long-awaited documents.
If the deadline is pushed back—this would be the third time—one person who’ll be disappointed is Bill Leonard, who from 2002 to 2007 served as director of the Information Security Oversight Office, a National Archives and Records Administration division that monitors the nation’s security classification system. Before Leonard took charge at ISOO, he was a deputy assistant secretary of defense responsible for security and information operations. (Here’s a past CJR video interview with Leonard.)
“If it happens, I can’t think of a clearer sign that we’re not serious about any of these deadlines,” he says.
It remains to be seen if Obama will simply give an extension before the end of the year, or release an executive order that more broadly reforms the national security classification system. But eventually the administration is expected to establish a National Declassification Center, which could coordinate release and multi-agency review of precisely the sort of documents under deadline: records that contain information—or in classification lingo, “equity”—from more than one agency.
CJR spoke with Leonard about the history of the deadlines, the implications of Obama’s decision, and the time Condoleeza Rice insisted that the December 31, 2009 deadline would be the last.
Clint Hendler: What did the 1995 Clinton executive order set up in terms of the so-called mandatory declassification deadline that’s got us staring at this date again?
Bill Leonard: The original Clinton executive order set up an original deadline of 2000. I think it can be clearly stated that the original goal was more aspirational than realistic. It was arbitrary. Nobody knew how much material it covered. Nobody knew what it would take to declassify so much information.
CH: And what sort of records were supposed to be declassified?
BL: It would have been any twenty-five-year-old or older historical records that had not been appropriately exempted from automatic declassification.
CH: And nobody took meeting that deadline seriously?
BL: Exactly. I don’t think it was envisioned at the time that there would be page-by-page reviews of each classified document. Bulk declassification was a tool that agencies could have used.
But even if you were to do bulk declassification, you’d have to survey the material. Nobody really had substantive experience that could be drawn upon to make any accurate workload projections and come up with plans to achieve the goal. And nobody said “OK, what do we have to accomplish over the next five years, what kind of production do we need to have to achieve that?” Instead it was “Let me see how much of a capability I can ramp up, and then let’s see how close to the goal we can get.”
For all practical purposes, it takes at least two years for an agency to get something into a budget. You have to go through a planning process internally, and then it has to go thorough the Office of Management and Budget, and then it has to go up to the Hill. So for those agencies starting from scratch, it would have taken them two years to start up realistic declassification programs.
So when it got to the point when the deadline was looming, it was pretty obvious that no one was in a position to accomplish the original goal. So that’s when the first deadline was extended. There was an amendment to the executive order, which brought it to 2003.
CH: So agencies got a little bit of a reprieve. What did they spend those extra three years doing?
BL: Well, I guess they continued to churn out as much as they could. But in between, 9/11 happened, which obviously distracted a good part of the government, and many of the agencies, and of course redirected a lot of resources. So once again, when the next deadline was approaching—the 2003 deadline—it was readily apparent that it would not be met again.
When the order was revised in 2003, they were given another extension to 2006, but for documents that had multiple equities, they were given an extra three years. So if a twenty-five-year-old FBI document contained some CIA information, it was not automatically declassified. And so what the CIA would be concerned about today is unless the order is changed, that FBI document with CIA information will become automatically declassified even though the CIA never had a chance to review it.
CH: Maybe the answer to this is the National Declassification Center. Is there a mechanism could be put in place that could give a reasonable chance of the next deadline being met?
BL: I don’t think there is. I just put myself in the agency head’s shoes. When I was in the Pentagon, I was responsible for assembling a budget for declassification. I had to go through the hoops internally to the Defense Department, even to get it into a budget submission to the Office of Management and Budget. To me, the logical question is “What happens if we don’t meet the deadline?”
Well, the history is: “I guess they’ll give us a new deadline.”
If I were the agency head making decisions on scarce resources, I’d say “OK, well, thank you very much for your interest. Now go away.”
So just let the deadline happen, and deal with the consequences. It will not be the end of the republic, and in fact might make us more secure.
CH: So, since 2006, twenty-five-year-old classified records that contain information from only one agency are supposed to have been automatically declassified at year’s end. Has that been happening?
BL: Well, it’s the old question: If a tree falls in a forest and nobody is there to hear it, does it make a sound? You can say the same about a declassified document: If a document is automatically declassified, but nobody sees it, is it really declassified? That document is still sitting in a box in the National Archives waiting to be processed so it can become publicly available. You have two dynamics here: you have the classification challenge, plus you have the tremendous backlog at NARA.
CH: So while it may be declassified as a legal matter, as a matter of public access it’s just as lost as it was before.
BL: It still does achieve something, though. It’s not on the open shelf, so to speak; but to reclassify this document and stop it from eventually being released, an agency is going to have to take specific action. But there’s a high standard, a more onerous process, because it has to be done on a case-by-case basis. So it kind of shifts the burden.
CH: So if the three-year deadline is about multiple equities, is the idea here that if they really get the National Declassification Center off the ground, there’ll be a better mechanism before the next deadline to deal with these multiple equity documents?
BL: I assume that’s the idea. That’s what I hear. I, for one, just simply wouldn’t buy that. Because it gets to the point when you blow one deadline after another, in essence you’re saying deadlines are truly meaningless.
I hearken back to when the order was revised in 2003. I did meet with Dr. Rice after it was signed. She was the National Security Advisor at the time, and was very interested in the order because her office was responsible; but also, based on her academic background, she had a strong appreciation for why the country needed a robust declassification program. And she specifically told me—directed me, as a matter of a fact—to make sure that all the agencies knew there would be no more extensions of the deadline. And that message was communicated clearly and deliberately. And that was coming out of the Bush administration!
CH: And yet here we are.
BL: Here we are. And that’s why I take the position that deadlines are deadlines. And if this administration were to let the deadline take place, it’s not like all of the sudden sensitive deadlines would be flying out all over the place at the National Archive, because the stuff is sitting in boxes and kept in vaults. They still have to be processed to make them publicly available.
CH: But if a document is sitting in NARA, declassified, isn’t there a way to get it out by a request?
BL: Sure. If you know a record is there and you make an access demand through the Freedom of Information Act or a Mandatory Declassification Review, that’s a way to speed up the process. But we also understand how laborious the FOIA or MDR is.
We are in a never ending do loop here. Because there is so much information that should be declassified but hasn’t been, and is still in boxes in the vaults, that increases the number of FOIA requests and MDR requests. That clogs up that system, which detracts from resources that could be applied to processing those records that could be on the public shelf. If you apply the resources where the greater good is accomplished, where more records are gotten out sooner, you could actually reduce the number of FOIA and MDR requests.
CH: But in a MDR or FOIA process, would an agency responsible for that document get another look at it?
BL: If the record is still classified, either because it’s been exempted or the twenty-five or twenty-eight years haven’t passed, then yes, the agency has to get an ability to review it. If the powers that be were to take my suggestion and allow this information to be automatically declassified, technically, I’m surmising here, NARA would not be obligated to allow a review.
CH: Because it’s already declassified.
BL: But there’s no reason an accommodation couldn’t be made. So if you had a National Declassification Center on site at NARA with agency representatives, that should be very easy to accommodate. If this information is allowed to be automatically declassified, I think it’s fair to put the onus on the agencies to tell NARA: “We don’t need to see every record, but this is the stuff we’re still concerned about and if you get a request for this kind of information, then yes, share it with me.”
CH: So if something goes into NARA, and it’s marked declassified because of this upcoming deadline, and somebody makes a request, there’s no formal opportunity for an agency with equity in that document to make a case that that record never should have been out there.
BL: Right. And that does happen from time to time. But the other side of the ledger is that this is information that, if made publicly available, can serve to inform military and political officials within the government who are responsible for making decisions on war and peace. And I think informed decisions in the national security arena is of much more vital interest to the American people today, and has a much more vital impact on their security and well being than some obscure thirty-year-old document.
After so many years in the declassification arena I can’t think of a single instance where there has been identifiable real harm to the national security as the result of a document being made available. A much stronger case can be made that national security is damaged more by artificially withholding this information than by making it available.
There was information that certainly could have been bulk declassified in 1995—here we are fifteen years later, and it’s certainly no more sensitive. If anything, there should be even more information that can be bulk declassified. When Clinton issued his order in 1995, not only did he bulk-declassify all records up to World War II, but he bulk-declassified certain records up to the Vietnam era. And that was twenty-five years prior. So if you work back twenty-five years from now, you’re talking records from 1985 and before.
CH: And there’s an incredible amount of history through the mid-1980s that I bet people would be itching to get at.
BL: Oh my god! The early ’80s would encompass our involvement in Afghanistan in the immediate aftermath of the Soviet invasion. How valuable could some of that information have been to add to the development of an appropriate strategy there if it had been available and researchers had been available to go through it and draw lessons learned and things along those lines?
One of the things that I often point out is that agencies don’t often have the luxury of knowing what they know—they’re too busy taking care of day-to-day activities. So the research and academic community out there is a free asset for not only the American people but for our government.
This has a direct impact on America’s well-being today, and the fact that we still approach this topic of declassification with such a retrograde mindset—I find it to be appalling and actually damaging to national security.