Senate and House Take Legislative Swings at Secrecy

The Senate introduced new legislation that would make it more difficult for the executive branch to establish secret policies. This effort followed the House's passage of legislation to reduce overuse of classification by security agencies.

On Sept. 16, Sens. Russ Feingold (D-WI) and Dianne Feinstein (D-CA) introduced the Office of Legal Counsel (OLC) Reporting Act of 2008 (S. 3501), a bill that would require the Attorney General to notify Congress when the Department of Justice (DOJ) determines that executive branch actions are not covered by particular statutes, such as criminal laws.

Legal opinions issued by the OLC are incredibly important to the executive branch because they create policies that effectively become new laws and can amend existing laws that bind the entire branch. Often, OLC opinions have been withheld from Congress, causing a breakdown in the system of checks and balances vital to maintaining an accountable political system.

A prominent example of this is the March 2003 DOJ memorandum authored by John Yoo, which became public in April 2008. The OLC memo took the position that the executive branch was not bound by criminal statutes prohibiting torture when interrogating detainees. Feingold argued that this practice creates an environment where "the executive branch is no longer operating according to the rules that are on the books, and there is truly a separate … regime of secret law." The public has a clear interest in knowing when the executive branch claims to be above the laws established by their elected officials in Congress.

The Senate bill is supported by former members of both the Clinton and Bush administrations. Dawn Johnsen, a head of the OLC during the Clinton administration, and Bradford Berenson, former counsel to President Bush, wrote a joint letter in support of the bill. They said, "We believe [the bill] strikes a sensible and constitutionally sound accommodation between the executive branch's need to have candid legal advice, to protect national security information, and to avoid being overburdened by overly intrusive reporting requirements and the legislative branch's need to know the manner in which its laws are interpreted."

The House also took action against excessive secrecy in the executive branch with the Sept. 9 passage of the Over-Classification Reduction Act (H.R. 6575). The legislation would require the Archivist of the United States to establish regulations for the prevention of over-classification. The bill mandates that agency Inspectors General conduct periodic audits of classification activity to ensure agencies comply with those standards. A system of incentives and penalties that would reward compliance and discipline abuse of classification authority would also be established.

Over-classification is a well documented problem within government. According to the 2008 Secrecy Report Card issued by OpenTheGovernment.org, $195 is spent on classification for every $1 spent on declassification. Since 2001, the government has been shrouded in a darkening veil of secrecy that has resulted in increasing numbers of classification decisions and requests for information, all creating massive costs to the taxpayer.

While transparency advocates agree that over-classification is a problem, there is some doubt that government-wide solutions are realistic. Steve Aftergood of the Federation of American Scientists asserted, "Over-classification at the CIA is not the same as over-classification at the Pentagon or the State Department. Not only do these agencies have different institutional cultures, their classification policies revolve around different sets of security concerns, and they are implemented through distinct sets of procedures." For instance, the Information Security and Oversight Office's 2003 implementation directive concerning classification duration, training, and marking was not successful at reversing the ever growing problem of over-classification.

S. 3501 has been referred to the Senate Judiciary Committee, and H.R. 6575 awaits action in the Senate. Between Congress's attention to the urgent economic crisis and the dwindling session calendar, neither bill appears likely to be enacted this year.

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