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Confusion and Disarray in the Government's Secrecy System

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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April 16, 2010

The U.S. government’s Information Security Oversight Office (ISOO) released important new information about government secrecy today. In particular, the report reveals that most government classification decisions are made by people with little training and no accountability.

Our government has a real problem of excessive secrecy. You can’t have a real democracy when the operation of the government is hidden from the people. Secrecy kills public accountability and cripples the government’s system of checks and balances — both essential elements of our constitutional democracy. For 50 years the problem has been growing, and study commission after study commission has come to the same conclusions: a) the government classifies way too much information, and b) that hurts government accountability, our democracy, and even our national security.

The ISOO (a part of the National Archives and Records Administration) puts out a report every year on the government’s security classification programs. This year’s report includes data that sheds some interesting new light on the secrecy problem:

  • Only one-third of one percent (0.33 percent) of classification decisions in 2009 were made by officials who are trained to do so — people known as “original classification authorities,” who are specifically designated by the president or agency heads and trained to judge what information absolutely must be safeguarded to protect national security.
  • The rest of last year’s 54 million classification decisions (99.66 percent) were what is known as “derivative classification.” This happens when, for example, a CIA analyst writes a report that includes information from another document that is already marked secret, or just references a secret program or operation. The new report will be marked secret — sometimes the whole thing — even though the vast majority of the information in it is not based on secret sources.
  • Derivative classification can be performed by anyone with a security clearance — that’s at least 3 million people, from entry-level soldiers to contractors in private industry to high-ranking government officials.
  • The result, not surprisingly, is a vast sea of confused overclassification and disarray that gums up the flow of information within the government and blocks a lot of information the American people should have access to. As the Moynihan Commission (one of the most prominent and thorough studies of the secrecy problem) found in 1997, “many of the individuals who classify derivatively remain unfamiliar with the proper procedures.” Sure enough, the new ISOO report finds an enormously high error rate (65 percent) in the supposedly secret documents it examined.

Today, my ACLU colleague Mike German — himself a former FBI agent who knows a thing or two about the ways of our security agencies — has published a fascinating analysis of the government’s new secrecy report (some of which I have summarized above). Included in that paper is an analysis of an FBI memo providing instructions on classification obtained by the ACLU that perfectly illustrates the often incoherent operation of the government’s secrecy machinery.

The Obama administration has taken some positive steps toward addressing this problem, such as requiring every person who derivatively classifies information to identify themselves on each document they classify, to receive training, and to segregate classified information where possible. At the same time, it is clear that more drastic measures are needed. In particular, Congress needs to step up to the plate and address the problem of runaway secrecy head-on, beginning with comprehensive oversight hearings and ending with smart, realistic legislative solutions to this problem that threatens the very core of our democracy more than any act of terrorism we have ever seen.

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