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>.