I testified this week before the House Committee on Oversight and Government Reform at a hearing titled “Examining the Costs of Overclassification on Transparency and Security.”
The Project On Government Oversight has always recognized the tension between openness and protecting legitimate government secrets. But the executive branch frequently classifies far more information than is necessary (some saying overclassification occurs 75 percent to 90 percent of the time), and it has created new ways to conceal information from the public. Such obstructions create barriers to public deliberation on policies and government spending, impede sharing, and harm efforts to identify and remedy waste, fraud, and abuse. The 9/11 Commission said it simply: “Secrecy, while necessary, can also harm oversight.”
Sometimes the reason for the secrecy is not the legitimate need to protect truly sensitive information, but the concealment of embarrassing information.
There were five main topics that I touched on during the hearing:
- retroactive classification;
- controlled unclassified information;
- treatment in handling cases; and
- executive branch use of secret laws.
Overclassification might come in the form of excessive redactions or improper marking. Reports by the National Archives (NARA) and its Information Security Oversight Office show that the classification process is mostly heading in the right direction—we have seen a substantial improvement over the last few years, especially considering the amount of electronic documents that must be reviewed. That said, in 2015, classification decisions were overturned in whole or in part in over 50 percent of challenges—411 out of 814 decided cases were overturned. At least in this cross-section of cases, when agencies are asked to consider disclosing information to the public, they make the wrong decision and choose unnecessary secrecy more than half the time.
I also highlighted the fact that agencies frequently disagree over whether information should be classified or not, the need to clarify what constitutes intelligence sources and methods, the billions spent annually on classifying information, and the need to consider other factors such as vulnerability, threat, risk, value of the information, and public benefit from release when making classification decisions.
For years, POGO has also expressed concerns about the questionable activity of retroactively classifying government information and has been involved in cases when information has been classified years after it was originally released. POGO believes that any reviews of the classification process should include a comprehensive look at the frequency of retroactive classifications, failures in the system to classify the information appropriately at the beginning, what considerations were given if the information was already publicly available, and constitutional issues related to prior restraints that could violate the First Amendment.
Controlled Unclassified Information
When information is not sensitive enough to classify, agencies often label it with a patchwork of controlled unclassified information (CUI) markings that restrict its dissemination. The proliferation of CUI was alarming and by 2010 there were more than 100 different CUI markings. We have already witnessed examples of misuse and I expressed to the Committee that its oversight is essential as CUI implementation trickles down through executive branch agencies. In response to an Executive Order, NARA will be implementing regulations to standardize and simplify the government-wide CUI program, but they won’t be completed for years, which is too long to wait.
Unequal Treatment in Handling Cases
In the past few years we have witnessed numerous instances of mishandled classified or protected information. POGO thinks that if intent is considered in high profile cases involving senior officials, it should also be considered, as well as other factors, in whistleblower cases.
POGO has voiced many concerns about the executive branch’s use of secret law. How can we know if the government has struck the right balance between our security and our rights if its laws and legal interpretations are cloaked in secrecy? Secret laws pose a serious risk to our democracy, and Congress needs to provide a check and balance to this form of executive branch secrecy.
I offered the following recommendations:
- The federal government should protect only legitimate national security and privacy concerns, and should penalize agencies that violate that principle.
- Congress should pass legislation clarifying the term “use of sources and methods.”
- Congress should pass legislation adding factors like cost, value of the information, and the public benefit from release to the criteria used when making decisions regarding classification and whether individuals who released CUI or classified information should face repercussions.
- Congress should push for clear standards and authorities for resolving instances in which agencies make differing classification decisions.
- Any future studies of the classification system should not merely look at check-the-box procedures, but also at what was classified and why, at retroactive classifications, and at CUI in order to determine whether the systems are effective and to identify abuses. Identifying the abuses can help reduce overclassification and improve training.
- The government should adopt a presumption of disclosure which allows the public full access to all unclassified and uncontrolled information.
- National Archives and Records Administration should speed up the full implementation of the CUI Executive Order and regulation.
The 9/11 Commission made a point that is still valid today:
… the security concerns need to be weighed against the costs. Current security requirements nurture overclassification and excessive compartmentation of information among agencies. Each agency’s incentive structure opposes sharing, with risks (criminal, civil, and internal administrative sanctions) but few rewards for sharing information. No one has to pay the long-term costs of over-classifying information, though these costs—even in literal financial terms—are substantial. There are no punishments for not sharing information. Agencies uphold a “need-to-know” culture of information protection rather than promoting a “need-to-share” culture of integration.
I’m hoping that the overwhelming interest at the hearing by nearly all of the Members of the House Oversight and Government Reform Committee means that Congress is recognizing this point, and that illegitimate executive branch secrecy will not be tolerated.