From to , the government made enormous progress in drawing back the veil of secrecy imposed by the national security classification system. An Executive Order signed by President Clinton in cut back on the ability of bureaucrats to classify information and, most importantly, encouraged the release of historical records by setting a deadline by which officials must either make the information public or show that continued secrecy is justified. In March , the Bush Administration demonstrated that it intended to take a different approach by amending the Order. The Bush Administration's new directive for classification is Executive Order 13, , and it immediately displaces the Order, Executive Order 12,
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From to , the government made enormous progress in drawing back the veil of secrecy imposed by the national security classification system. An Executive Order signed by President Clinton in cut back on the ability of bureaucrats to classify information and, most importantly, encouraged the release of historical records by setting a deadline by which officials must either make the information public or show that continued secrecy is justified.
In March , the Bush Administration demonstrated that it intended to take a different approach by amending the Order. The Bush Administration's new directive for classification is Executive Order 13, , and it immediately displaces the Order, Executive Order 12, The most significant differences between the Bush Administration Order and the Order are summarized below.
In the course of diplomatic, military, and trade activities, the United States may receive information from other countries and international organizations that those entities want to keep secret for their own reasons.
A presumption that the unauthorized disclosure of information from a foreign government harms the national security appeared in a Reagan Administration Executive Order on classification. Executive Order , Section 1. This provision of Executive Order 12, was a significant factor in a decision by the federal Court of Appeals for the Ninth Circuit that rejected the government's claim that a communication from the United Kingdom could be withheld from a FOIA requester because it had been classified by the Department of State.
Weatherhead v. United States, F. October , vacated as moot, U. Although Executive Order 13, creates a presumption that favors classification of foreign government information, it does not provide that foreign government information is automatically classified. The government must still follow the procedural requirements of the Executive Order, and foreign government information is subject to the prohibitions and limitations on classification.
In a briefing introducing the new order, the White House stated that it is "just a presumption. However, there is nothing in the new Order to indicate how classifying authorities or courts should determine whether the presumption should not be applied. The definition of "foreign government information" in Executive Order 13, is the same as the definition in the previous order.
Foreign government information includes information provided to the United States by foreign governments and international organizations, and information that the United States produces jointly with such governments and organizations. Executive Order 13,, Section 6. These provisions should make the "foreign government information" definition inapplicable to information exchanged under international agreements that do not require confidentiality or that explicitly contemplate public disclosure.
The new order also provides that foreign government information need not be assigned a U. Executive Order 13,, Section 1. This statute includes an intricate set of limitations and procedural requirements for exempting foreign government information. The new order makes it easier to classify information for longer periods of time. Prior to the Order, most records were classified for an indefinite duration and would only be declassified when the agency took affirmative steps to declassify them.
Executive Order 12,, Section 1. ISOO Report, Executive Order 13, eliminates the language in the Order that restricts the ability of officials to select periods of more than 10 years. The original classification authority may now mark information for declassification "for up to 25 years from the date of the original decision" if it determines that this classification is warranted by "the sensitivity of the information.
Under the Order, extensions of classification were limited to 10 year periods. The new order imposes no time limit on such extensions. In addition, the new order allows extension of the classification period for records that are more than 25 years old that have been determined by the Archivist to have permanent historical value.
Under the Order, the authority to extend the duration of classification did not apply to these records. Executive Order 12,, Section 3.
The new Order retains the provisions of the Order for automatic declassification, but makes several significant modifications. The Order provided that an agency head could exempt specific information if the release of the information "should" be expected to result in one of nine categories of harm.
Executive Order 13, changes "should" to "could. Second, the new Order defers the deadline for automatic declassification to fully take effect.
In , President Clinton extended the original deadline so that agencies did not need to comply with the automatic declassification provisions until April 17, , with respect to records with information created by or controlled by multiple agencies, and records within file series that are replete with information pertaining to intelligence sources or methods.
Executive Order 13,, Section 2, 64 Fed. Executive Order 13, defers this deadline for automatic declassification until December 31, Executive Order 13,, Section 3. Third, the new order also provides that automatic declassification can be postponed beyond for some categories of records:. ISOO Report, at This represents approximately million pages of records. Because the Bush Administration has extended the deadline for reviewing these materials, it has removed the immediate incentive for agencies to determine whether these records are properly classified or should be made public.
Executive Order 13, eliminates this restriction. Executive Order 13, also adds language that allows agency heads to exempt information that could "reveal current vulnerabilities of systems, installations, infrastructures, or projects relating to the national security.
The order included an admonition that "[i]f there is significant doubt about the need to classify information, it shall not be classified. In a briefing discussing Executive Order 13,, the White House stated that the significant doubt provision was removed because "[i]t was the judgment of the professionals who deal with this and the judgment of the affect[ed] agencies that that language in either direction simply was vague and did not assist the process.
The new order makes it possible to reclassify previously declassified information. The Order prohibited reclassification once information has been declassified. Executive Order 13, permits reclassification if "the information may be reasonably recovered," the information satisfies the standards for classification, the reclassification is personally authorized, in writing, by an agency head or deputy agency head, and the reclassification action is reported promptly to the Director ISOO.
The order also includes a modest expansion of authority to classify or reclassify information after a FOIA request has been received for the information. The Order authorizes information to be classified or reclassified after a request is received only if the information "has not previously been disclosed to the public under proper authority" and certain other conditions are met. However, the Order provided that information contained records that are more than 25 years old and have been determined to have permanent historical value could not be classified under this authority.
The new order eliminates this limitation and, therefore, allows such historical records to be classified or reclassified under the conditions set forth in the Order. Executive Order 13,, Section 5. See 60 Fed. The new order adds information originated by the Vice President and his staff to the categories of information that are exempt from mandatory declassification review.
Under the Order, the categories of exempt information included those originated by the incumbent President, White House Staff, commissions appointed by the incumbent President and "other entities within the Executive Office of the President that solely advise and assist the incumbent President. The Vice President and certain Vice Presidential appointees have also been added to the list of individuals that may be given access to classified information after they leave office without demonstrating a need to know.
Executive Order 13,, Section 4. During the first full fiscal year of the Bush Administration , the total number of classification actions increased by 44 percent to 33,, ISOO Report, at 2. The new Order contains language that expands the authority of officials to classify information. The new Order lists information concerning "weapons of mass destruction" as a distinct category of information that may be classified, and adds language that explicitly includes information relevant to "defense against transnational terrorism" in pre-existing categories.
Neither of these changes are likely to have a significant impact because such information was generally classifiable under the language of the Order. The new Order contains new references to "infrastructure" information that make explicit that such information may be classified. The categories of classified information include information that reveals "vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism.
As noted above, information that would "reveal current vulnerabilities of systems, installations, infrastructures, or projects relating to the national security" may also be exempted from automatic declassification. The new Order strikes out all references to a declassification advisory board authorized by the Executive Order 12,, Section 5.
The Council was to be a seven-member advisory group appointed by the president to advise on declassification matters. Executive Order 13, contains a new provision authorizing emergency disclosure of classified information to an otherwise unauthorized individual "when necessary to respond to an imminent threat to life or in defense of the homeland. Executive Order 10,,November 5, Superceded by Executive Order 11, in Advisory Board Emergency Disclosure Additional Resources Introduction From to , the government made enormous progress in drawing back the veil of secrecy imposed by the national security classification system.
Foreign Government Information In the course of diplomatic, military, and trade activities, the United States may receive information from other countries and international organizations that those entities want to keep secret for their own reasons. Duration of Classification The new order makes it easier to classify information for longer periods of time. Third, the new order also provides that automatic declassification can be postponed beyond for some categories of records: Records shall not be automatically declassified until December 31 of the year that is 25 years from the date of the most recent record within an "integral file block," of records.
Executive Order 13, Section 3. An "integral file block" may include records that cover several years, and is defined only as a distinct component of a file series "that should be maintained as a separate unit in order to ensure the integrity of the records. For classified information contained in microforms, motion pictures, audiotapes, videotapes, or comparable media that make a review for possible declassification exemptions more difficult or costly, agency officials may extend the deadline for up to 5 years.
For classified records that have been referred or transferred to that agency by another agency less than 3 years before automatic declassification would otherwise be required, agency officials may extend the deadline for up to 3 years.
For classified records that were inadvertently not reviewed prior to the effective date of automatic declassification, agency officials may extend the deadline for up to 3 years. Doubtful Cases.
Reclassification and Previously Unclassified Information The new order makes it possible to reclassify previously declassified information. Revisions to Classification Categories. Advisory Board The new Order strikes out all references to a declassification advisory board authorized by the Executive Order 12,, Section 5. Emergency Disclosure Executive Order 13, contains a new provision authorizing emergency disclosure of classified information to an otherwise unauthorized individual "when necessary to respond to an imminent threat to life or in defense of the homeland.
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The President Executive Order 13526
President Obama states that his administration is committed to creating an unprecedented level of openness in Government. He will work with the Executive Branch to ensure public trust and establish a system of transparency, public participation, and collaboration. He believes that openness will strengthen our democracy and promote efficiency and effectiveness in Government. The current order on classified information Executive Order was issued by President Obama on December 29, , and it revoked and replaced the previous orders, and
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Clinton's order set declassification deadlines for classified material and made it harder for politicians to classify information. Bush's order appears to allow much more information to be classified and for longer periods; the wording is hard to decipher in some areas [ specify ]. It also appears to give more power over classification to the Offices of the President and Vice President, but the wording used was not properly defined in the listing of relevant definitions now consolidated into their own section in Part 6 of the Executive Order. Among the various changes made to the based regulations, Executive Order notably: . A more extensive analysis of the changes from the previous executive order was compiled by the group Public Citizen.
Executive Order 13292
This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism. Our democratic principles require that the American people be informed of the activities of their Government. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. This provision does not: 1 amplify or modify the substantive criteria or procedures for classification; or 2 create any substantive or procedural rights subject to judicial review. Agency heads are responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority. Each delegation shall identify the official by name or position. Such training must include instruction on the proper safeguarding of classified information and on the sanctions in section 5.