Originally published on Secrecy News.
In preparing its recent report on the Section 702 surveillance program, the Privacy and Civil Liberties Oversight Board (PCLOB) demonstrated an unusual mode of declassification, in which one executive branch agency asks another agency to declassify information.
In this case, the process was remarkably productive, and it may offer a precedent for future declassification efforts.
“During the process of preparing this report we sought and obtained declassification of facts about this still highly classified [Section 702] program in order to allow us to put in context how the program operates and clarify some public misconceptions,” said PCLOB Chairman David Medine at a July 2 public meeting.
“As a result, over one hundred new facts were declassified by the government to provide needed context for the program’s operation,” he said.
In what the PCLOB staff termed a “lateral declassification” model, it was an executive branch agency (i.e., the PCLOB itself) — rather than Congress or members of the public — that pressed another government agency (ODNI, NSA, CIA, FBI or Justice) to declassify specific information.
Such an interagency request for declassification differs from the “referrals” that agencies routinely direct to one another. In those cases, the receiving agency is simply asked to review records to identify its own classified information (or “equities”) and then to advise the originating agency what must be withheld and what may be disclosed.
Here, the PCLOB didn’t merely ask agencies to screen for classified information under existing classification standards. It urged them to actually change those standards. And in more than 100 specific cases, the agencies did so.
Most of the declassified facts in the PCLOB Section 702 report are not specifically flagged as having been declassified at the Board’s request, and they may therefore be easily overlooked. A partial compilation of such newly declassified facts, prepared by a participant in the process, was obtained by Secrecy News.
Several features appear to have contributed to the efficacy of the lateral declassification approach.
For one thing, the requesting agency (the PCLOB) already possessed the requested information in classified form. So it knew exactly what it was asking for, and why it was asking for it to be declassified.
And then the fact that the declassification requests originated within the executive branch itself (the PCLOB is an independent executive branch agency) made it harder for the recipient agencies to ignore the request and easier for them to fulfill it.
By contrast, public requests through the Freedom of Information Act often seem to decline into an adversarial contest, in which the agency adopts a defensive posture and offers only minimal, grudging compliance with disclosure requirements. (At CIA, one gets the impression that asking for a record to be declassified can make it less likely to be disclosed.) Requests from Congress also inevitably have a political overlay, and may be seen to serve an agenda that does not coincide with the Administration’s own.
But as part of the Administration, the PCLOB’s many declassification requests did not trigger the sort of immune response that any outside request would have done.
Of course, the PCLOB’s work, including its declassification proposals, did not take place in a vacuum.
“A lot of political wind was at our back,” said Peter Winn, acting general counsel for the Board.
Not only had related classified details entered the public domain through the Snowden disclosures, but calls for declassification of more information regarding current surveillance programs had been explicitly endorsed by the Director of National Intelligence and other senior officials.
Because of these competing factors, the role played by the Board’s “lateral declassification” approach cannot be precisely delineated or clearly distinguished from them.
But its apparent effectiveness is consistent with the productive declassification work performed by another executive branch body, the Interagency Security Classification Appeals Panel (ISCAP), which has declassified information in a large majority of the mandatory declassification review appeals presented to it.
Perhaps most important, the Board’s experience with declassification in the Section 702 report may serve as a precedent for similar initiatives in the future.
“For us, it’s a model,” said Sharon Bradford Franklin, executive director of the PCLOB.
She noted that more than 90% of the Board’s requests for declassification had been granted, and that they preceded completion of the Board’s report. (That is, the declassification actions were not predicated on any agency’s review of the Board’s conclusions or recommendations.)
Enough information about the 702 program was declassified that a classified annex — which had earlier been assumed to be necessary — turned out to be unnecessary, Ms. Franklin said.
She also credited the intelligence agencies for their diligent engagement and cooperation in the declassification process, as did the published PCLOB report.
“In the preparation of this Report, the Board worked with the Intelligence Community to seek further declassification of information related to the Section 702 program,” the report noted (at p. 3).
“Specifically, the Board requested declassification of additional facts for use in this Report. Consistent with the Board’s goal of seeking greater transparency where appropriate, the request for declassification of additional facts to be used in this Report was made in order to provide further clarity and education to the public about the Section 702 program.”
“The Intelligence Community carefully considered the Board’s requests and has engaged in a productive dialogue with PCLOB staff. The Board greatly appreciates the diligent efforts of the Intelligence Community to work through the declassification process, and as a result of the process, many facts that were previously classified are now available to the public.”
The final PCLOB report on the Section 702 program included several recommendations concerning transparency, including proposals for further specific declassification actions. Those proposals remain pending.