The Secrecy Court of Last Resort

New Declassification Releases by the Interagency Security Classification Appeals Panel (ISCAP)

Published on the National Security Archive, Posted – June 5, 2009.

Washington, D.C., June 5, 2009 – Now that President Obama has announced a review of U.S. secrecy policy, critics of secrecy policy and declassification requesters alike can only hope that those who carry it out understand the serious failings of the secrecy system as it currently exists.  One of the absurdities of the system is that historical national security information, even information 60 years old, is subject to standards that are nearly as tough as those applied to recently-produced information.  A group of documents recently declassified by the Interagency Security Classification Appeals Panel and a CIA history that ISCAP could not release illustrate the problems raised by current standards, overly strict interpretations of those standards, and legal obstacles blocking the declassification of historical intelligence information. 

ISCAP acts as the court of last resort for mandatory declassification review requests.  Supported by the staff of the Information Security Oversight Office, which provides the panel’s executive secrecy, ISCAP can overturn, modify, or affirm agency decisions that requesters have challenged with an appeal.  Recently, in response to appeals from the National Security Archive, ISCAP reversed several Central Intelligence Agency initial denials of documents from the 1960s and 1970s.  While ISCAP withheld material it regards as sensitive secrets, it nevertheless found that much of the information denied by the CIA could be declassified without harm to national security.  ISCAP released: …

… CIA Veto:

Another area where the CIA can restrict ISCAP’s authority emerged during the first years of the George W. Bush administration—an explicit CIA veto to protect its information from declassification by ISCAP.  The CIA first challenged ISCAP’s authority over its information in the late 1990s, but lost that fight. (Note 4)  Nevertheless, CIA officials believed they had an exclusive role in protecting intelligence sources and methods and after George W. Bush came to power, they had more allies in the White House.  When the Bush administration amended E.O. 12958, it gave the CIA a veto over ISCAP decisions that concerned its information.  Thus, according to Executive Order 13292, when the Director of Central Intelligence objects to a decision by the Panel “because he has determined that [releasing] the information could reasonably be expected to cause damage to the national security and to reveal (1) the identity of a human intelligence source, or (2) information about the application of an intelligence source or method (including any information that concerns, or is provided as a result of, a relationship with a cooperating intelligence element of a foreign government), the information shall remain classified.”  ISCAP would have the right to appeal adverse decisions to the president and has exercised that right in a few cases that are still pending at the White House (e.g., over President’s Daily Briefs). (Note 5)

By giving the CIA veto power, the Bush administration Executive Order set a bad precedent that struck at the heart of ISCAP’s authority.  As the OLC put it in 1999, “the decision to classify information bearing on national security is an exercise of the President’s independent constitutional power to control access to such information” and ISCAP is the president’s “delegee” in such matters.  If the CIA can veto a decision by the panel, then the system of presidential authority is turned on its ear.  Reversing the CIA veto should be an element of a future executive order on national security information.  If CIA disagrees with an ISCAP decision, it would still have the ability to appeal to the President as it did under the Clinton executive order.

This briefing book illustrates serious overclassification problems in the intelligence agencies, but also ISCAP’s strengths and weaknesses in its relationship with the Central Intelligence Agency.  When the National Security Archive requested the documents that follow, the CIA withheld several of them in their entirety or excised most of their contents. Appeals led nowhere: the CIA refused to declassify more information from them.   By contrast, appeals to ISCAP led the panel to overturn the CIA decisions and declassify much of the information at issue in the appeals.  While these results show that the CIA can work constructively with its ISCAP colleagues in declassifying important information, at the same time, they raise questions about the guidelines and interpretations that led the Agency to withhold so much information in the first place.  Even with the weaknesses in Executive Order 12958, ISCAP believed that the further declassification was wholly consistent with it.  This may show that the Executive Order needs clarification so that agencies do not interpret it in such a restrictive fashion that they deny information that ought to be declassified.

Moreover, as is evident in the decisions on the Office of Policy Coordination history, as long as the CIA Information Act stays in its present form, ISCAP will be constrained when reviewing historical intelligence information and the CIA can indefinitely withhold the record of its history with little outside accountability.  As difficult as this problem is, it is one that the Obama administration needs to tackle. (full long text).

(See also the annexed Documents and Notes 1-17).

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