Spotlight on Secrecy and Overclassification

Testifying before the House Subcommittee on National Security, Emerging Threats and International Relations, representatives from the National Archives, the Department of Defense (DOD) and the Department of Energy (DOE) received harsh questions regarding a secretive, multi-agency reclassification program, as well as unclear sensitive but unclassified (SBU) policies. As reported in the previous Watcher, the National Archives recently placed a moratorium on the reclassification program first reported by The New York Times. The program is believed to involve at least six federal agencies and the reclassification of some 55,000 pages of documents since 1999. During the March 14 subcommittee hearing, representatives focused much of their questioning of National Archives officials on a classified Memorandum of Understanding (MOU) issued by a "branch" of the Defense Department that may offer the only documented details on the reclassification program's scope and procedures. Testifying for the Archives were Professor Allen Weinstein, Archivist of the United States, and J. William Leonard, Director of the National Archives Information Security Oversight Office (ISOO) Rep. Henry Waxman (D-CA) repeatedly pressed Weinstein for details about the memorandum. Weinstein responded that he "can't talk about what the MOU says" because the program is classified. Pressed about the program's classified status, he said he did not "know why it is classified" and offered to talk about the MOU in a closed briefing. Believing that the secrecy surrounding the document and the program cuts to the heart of the reclassification program's problems, Rep. Christopher Shays (D-CT), chairman of the subcommittee, indicated he will request that the Defense Department declassify the memo. Weinstein said that he "wasn't aware of the [reclassification] program" until he "learned about it in The New York Times." Weinstein and Leonard stated that they are in the midst of reforming the program to prevent the reclassification of innocuous documents. Within 60 days, the Archives plans to complete its audit and issue a thorough analysis of the declassification program and offer recommendations on how it should be reformed. The hearing also addressed what Shays calls "faux secrets," sensitive but unclassified information (SBU) that the federal government keeps from the public. Davi M. D'Agostino of the U.S. Government Accountability Office (GAO) explained the findings of the GAO's recent report, "Managing Sensitive Information." The report focuses on how the Energy and Defense Departments use Official Use Only (OUO) and For Official Use Only (FOUO) designations. GAO found that the agencies lack clear policies, oversight, and training on handling sensitive information. Echoing the findings of the GAO report, Tom Blanton of the National Security Archive at George Washington University testified, "Nobody knows the scope of SBU." According to a recent report by the National Security Archive, 28 distinct policies on SBU exist throughout the federal agencies. In September 2005, OpenTheGovernment.org's Secrecy Report Card identified 50 "restrictions on unclassified information" that agencies use to keep information secret. Additionally, there are often few limits on who can classify a document as SBU. "Anyone [at DOD] can classify a document as FOUO, subject to a review by their supervisor" according to Robert Rogalski, Acting Deputy Under Secretary of Defense, and as Shays noted, a supervisor may never decide to exercise authority. At DOD alone, 2.5 million employees can mark a document as sensitive but unclassified. "SBU designations are being misused as an unregulated form of 'classification-lite,'" according to Shays. "We are drowning in a sea of our own faux secrets."
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