Academic journal article Journal of National Security Law & Policy

A Proposal to Reduce Government Overclassification of Information Related to National Security

Academic journal article Journal of National Security Law & Policy

A Proposal to Reduce Government Overclassification of Information Related to National Security

Article excerpt

INTRODUCTION: THE PROBLEM

Today, many reports have concluded that there is too much classification of information, and many former government officials appear to concur.1 For example, the 9/11 Commission found that overclassification is a threat to national security because it inhibits information sharing within the federal government and between the federal government and state and local agencies.2 Donald Rumsfeld noted in 2005 his long-held belief that "as a general rule . . . too much material is classified across the federal government."3 Complementing government reports and statements from former government officials Elizabeth Goitein and David M. Shapiro found that in response to a public request for particular classified government records to be declassified, the relevant agency found that in 92% of all such cases at least some of the requested records need not remain classified.4

And these concerns are still being expressed. As this paper is being written, Representatives Duncan Hunter and Martha Roby are requesting the Government Accountability Office to review the government's classification systems and to examine the degree to which material is classified even when such material does not impact national security.5 Senator Jeanne Shaheen (D-N.H.) is calling on the Obama administration to increase transparency by reducing the number of classified documents to reduce costs and to combat "a culture of secrecy that is antithetical to our democratic traditions and undermines public confidence in our institutions."6

In summary, the Public Interest Declassification Board, established by the implementing memorandum for Executive Order 13,526 ("Classified National Security Information"),7 found in its 2012 report that "present practices for classification and declassification of national security information are outmoded, unsustainable and keep too much information from the public."8

Why is this the case? Goitein and Shapiro identify several incentives for excessive classification, including:9

* A culture of secrecy in government agencies. In such a culture, classified information is deemed more valuable than unclassified information, and classification is used as a mechanism to protect agency influence.

* Concealment of information that reveals governmental misconduct or incompetence. Although classification cannot be used in order to "conceal violations of law, inefficiency, or administrative error [or] prevent embarrassment to a person, organization, or agency,"10 it is obvious that government agencies have incentives to classify information for exactly such reasons, even if they are in principle forbidden from acting in such a manner.

* Facilitation of policy implementation. To the extent that knowledge of government actions can be limited only to those individuals who must take action, such actions can take place with minimal debate or delay. This is especially true when such actions might be controversial if made public.

* Fear of repercussions for failing to protect sensitive information. While individuals are likely to be criticized for such failures, they are unlikely to be criticized for excessive classification.

* Other demands on classifiers' time and attention. Making the determination that a given piece of information "could reasonably be expected" 11 to harm national security entails an inherently difficult and time-consuming process. Thus, when working under time pressure and with a large volume of information about which classification decisions must be made, a classifier has incentives to simply classify the information.

The idea that these factors act to incentivize classification has the ring of truth to many people within the national security community, although a more nuanced view might be that "although overclassification is widespread, it doesn't happen very much in my office/agency/program, because we're on top of it, and besides, the topics in my portfolio are really important, unlike the topics handled in all of those other offices/agencies/programs. …

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