The National Security Archive and a coalition of sixty organizations that work on transparency and openness issues have proposed another executive order that Obama could issue early in his term—one that would create a task force to determine how to rein in the worst excesses in the information-classification system, the federal government’s primary tool for official secrecy. Over many years, a perennial series of blue-ribbon commissions has suggested that over-classification is a serious problem in the federal government, not only for the public’s historical interest but also for data-sharing among agencies. For one, the 9/11 Commission warned that such “secrecy stifles oversight, accountability, and information-sharing.” Former congressman Lee Hamilton, who was vice-chairman of the commission, estimated that about 70 percent of the information he viewed was “needlessly classified”—a shockingly high portion given the sorts of records the commission needed to do its work.
Officially, federal law only describes three levels of classification: “top secret,” “secret,” and “confidential.” The process is statutorily overseen by the Information Security Oversight Office at the National Archives, which collects data on the quantity of classified information, monitors agencies’ compliance with classification rules, and handles appeals of classification decisions. A limited number of agencies and individuals are authorized to classify material, and while there are widely used provisions for exemptions and extensions, classified information is supposed to be automatically declassified after ten years.
The amount of classified information, and the number of people authorized to deem it classified, have been expanding since 2000. The departments of Agriculture, Health and Human Services, and the Environmental Protection Agency, for example, were authorized to classify for the first time early in the Bush administration. In 2007, the most recent year for which records are available, a report by the Information Security Oversight Office (ISOO) catalogued more than twenty-three million classification actions government-wide; in 2000, the number was just over eleven million, although some of this increase can surely be attributed to the growth of digital communication.
In 2003, classification’s durability and reach were extended by another Bush executive order that mandated a three-year moratorium on many automatic declassifications, allowed the CIA director to overrule declassification decisions made by the Oversight Office, and expanded classification for information provided by foreign governments—a category that could include such historical treasure troves as diplomatic cables and the like. It also made it easier for agencies to reclassify information that they had previously declassified, as long as there was some plausible way to retrieve the documents from the public realm.
In one incident that illustrates the reach of this order, federal agents removed documents from the personal papers of the late Senator Scoop Jackson, housed at the University of Washington. Far more troubling was the revelation in 2006 that more than twenty-five thousand documents had been pulled from the stacks at the National Archives and Records Administration, which are open to the public. Matthew Aid, a part-time historian who first noted the disappeared documents, catalogued a bizarre list of what had gone missing: cables documenting a widely known intelligence failure from the Korean War; a 1948 message chastising the State Department for not predicting riots in Bogotá; talking points on how to handle questions about Japanese peace offers before the end of World War II; etcetera. Archive officials conducted an audit and determined that a third of the documents that had been pulled were not eligible to be reclassified, even under the new Bush standards.
Alongside the official classification system exists a murky system sometimes called “pseudo-secrecy.” More formally known as “sensitive but unclassified” or “controlled unclassified” information, it functions with little regulation, monitoring, or clear force of law. Attempts to fully measure the use of this category are frustrated by the fact that there is no single definition for what qualifies as sensitive-but-unclassified (SBU) information.
Concerns about sensitive-but-unclassified information date back at least to 1972, when a House committee held hearings deploring the ways that similar labels were being used to keep information from coming to light under the Freedom of Information Act, which carries an exemption for properly classified documents. Explicit presidential support for such pseudo-secret labeling dates to a 1977 presidential directive on telecommunications technology by Jimmy Carter, and it has been used in every subsequent administration.