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Bush Issues New Secrecy Executive Order
On 25 March 2003 President George W. Bush signed a 31-page Executive
Order "Further Amendment to Executive Order 12958, As Amended, Classified
National Security Information" (EO 13291) replacing the soon-to-expire
Clinton-era E.O. relating to the automatic declassification of federal
government documents after 25 years. With a handful of exceptions, the
new EO closely corresponds to a draft obtained by the National Coalition
for History and distributed via the Internet earlier in March (See "Draft
Executive Order Replacing EO 12958 Circulates," NCH
WASHINGTON UPDATE, Vol. 9, #11; 13 March 2003).
The announcement of the president's signing the EO appears to have been
carefully orchestrated by the White House to minimize public attention
to the new order. One press insider characterized the strategy employed
by the White House as "advance damage control." The administration
tactic managed to short circuit a repeat of the public relations disaster
that followed the release of the Presidential Records Act EO in 2001.
Around 7:00 pm on 25 March, copies of the signed EO were released to
select members of the Washington press corps. Recipients were connected
via conference call to a "senior administration official" who
provided a background briefing on the condition of anonymity (see: http://www.fas.org/sgp/news/2003/03/wh032503.html).
Because of copy deadlines, the timing of the briefing made it difficult
for reporters to consult experts in disclosure and government secrecy
who could provide meaningful comment. Also, because the president was
scheduled to be on the road the next day, no routine press briefing was
anticipated, making it impossible for reporters to pose timely on-the-record
questions to administration officials. Nevertheless, hastily put-together
yet generally accurate articles appeared in The Washington Post,
New York Times, and over major news wires such as the Associated
Press. Feature stories also were broadcast on National Public Radio, Pacifica
radio, and through other non-print media outlets. Regardless of the "advance
damage control," reporters are expected to ask administration officials
probing questions during the next regularly scheduled White House press
briefing this Friday morning.
The new EO retains the essential provision of the Clinton order—automatic
declassification of federal agency records after 25 years—but with
some notable caveats. In general, the government now has more discretion
to keep information classified indefinitely, especially if it falls within
a broad new definition of "national security." The
EO makes it easier for government agencies to reclassify documents that
have already been declassified, and it makes it easier for agencies to
classify what is characterized "sensitive" material. There are
new classification authorities including one for the vice-president who
previously did not have the power to classify documents, and one for the
CIA to reject declassification rulings from an interagency panel. The
EO also expands the list of exemptions of information from future automatic
declassification: information that would "assist in development or
use of weapons of mass destruction," reports such as "national
security emergency preparedness plans," and information relating
to "weapons systems." Also included in the automatic declassification
exempted materials category is a class of information that would "impair
relations between the United States and a foreign government," thereby
creating a new "presumption of secrecy" category for information
provided in confidence by a foreign government; this provision also was
not present in the Clinton order. Finally, the order creates a 3-year
delay in requiring that all agencies comply with the Clinton EO 25-year
targeted declassification date.
All in all, according to Tom Blanton of the National Security Archive,
a private group that works to get government documents declassified, the
Bush administration is sending "one more signal from on high to the
bureaucracy to slow down, stall, withhold, stonewall....making foreign
government information presumptively classified drops us down to Uzbekistan's
openness norms."
Not all reviewers of the new EO are so critical. Steven Aftergood, who
directs the Federation of American Scientists' Project on Government Secrecy,
considers the EO as "a bullet dodged"—that "given
that the Bush administration is the most secretive in recent decades,
it is not as bad as it might have been. As deplorable as these steps are,"
he said, "they seem unlikely to have a major impact on disclosure
policy." Archivists were generally pleased to see the generalized
term "information" substituted for "records" in certain
sections of the new EO.
Administration officials defended the new order and characterized it
as an "institutionalization of automatic declassification...with
appropriate modifications." According to J. William Leonard,
director of the National Archives Information Security Oversight Office
(ISOO)—the government oversight agency that is charged to implement
the EO—"From my perspective, this amendment does not represent
a substantial change to the declassification process."
Though the EO postpones the automatic declassification deadline by three
years to 31 December 2006 and will delay millions of historical records
from being released, Leonard fully expects "all federal agencies
to fully address their backlogs by 2006....and there will be no future
extensions." To that end, Leonard's office will be monitoring how
agencies implement the amendment. He also will be directing that all agencies
produce "declassification plans" in the very near future—plans
that will identify and assess agency resource and staffing commitments
to insure full compliance by the new deadline.
Historians and government openness advocates have long followed the administration's
efforts to revise the Clinton EO. A few weeks ago, a final working draft
was submitted to federal agencies for review. Most of the changes made
as a result of that final review and reflected in the EO were relatively
minor. Said one agency insider, "in the spirit of agency consensus
you see new added language that doesn't really change much."
Though some reviewers wanted to see more dramatic changes in the EO now
that agencies operate in a post- 9/11 world, most of the more draconian
suggestions were headed off by NARA and other reviewing officials. One
difference between the draft and the final EO gets to the heart of the
Bush administration's philosophy about government secrecy. The preamble
of Clinton EO 12958 declared:
"In recent years however, dramatic changes critical to
our Nation's security have altered [a subtle reference to the end of the
Cold War] although not eliminated, the national security threats we confront.
These changes provide a greater opportunity to emphasize our commitment
to open Government."
These words have been deleted from the Bush EO. The new EO preamble contains
no reference to government openness, reinforcing in some people's minds
the Bush administration's apparent underlying philosophy toward government
secrecy. According to one declassification insider, "the preamble
sets the stage for the underlying theology of the Bush administration....gone
are Clinton's references to open government, gone is the presumption for
document declassification....what we're left with is paternalistic language
emphasizing the need for the government to protect the American people—that
'certain information be maintained in confidence in order to protect our
citizens.'"
Significantly also, the new EO strikes out all references to a declassification
advisory board authorized by the Clinton EO but whose members were never
appointed. The "Information Security Policy Advisory Council"
was to be a seven-member advisory group appointed by the president to
advise on declassification matters. According to Leonard, this provision
was struck as it was no longer needed. After the issuance of EO
12958 in 1995 Congress authorized the establishment of the "Public
Interest Declassification Board" (the so-called "Moynihan Board")
in Section 703 of the Intelligence Authorization Act for FY 2001 (PL 106-567).
Leonard sees "value in such a group" and intends to try to persuade
upper-echelon Bush administration officials of the benefits of moving
forward and complying with the law authorizing the Board. Right
now, however, these individuals are preoccupied with the war in Iraq.
Officials believe it would be advantageous to wait until the war is off
their radar screens before addressing the appointment of the Moynihan
Board. A copy of the new order may be found at: <http://www.fas.org/sgp/bush/eoamend.html>.
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