It is doubtful that many people may get out the reading glasses come New Year’s Day, but those interested in knowing what was once secret will have the opportunity as classified records that turn 25 years old will be automatically declassified on December 31. This year, because of the Covid-19 pandemic, some agencies have sought to extend the deadlines, yet unless the records are reviewed and specifically found to be subject to an authorized exemption the content will soon be declassified.
“Several agencies have expressed concerns that, due to diminished operational capacity and capability, they would likely be unable to complete declassification reviews of their 25-year old classified permanent records before the onset of automatic declassification on December 31, 2020,” Mark A. Bradley, the director of the Information Security Oversight Office (ISOO), said in a letter to the executive branch agencies in late November. “These agencies have requested some form of relief, such as a declassification delay or waiver.”
In consultation with the National Security Council and legal counsel, ISOO determined that Executive Order 13526, “Classified National Security Information,” does not permit a waiver or delay in automatic declassification due to the COVID-19 pandemic.
According to Executive Order 13526, which was published on January 5, 2010 and superseded Executive Order 12958, an executive agency must declassify its documents after 25 years unless those documents fall under one of the nine narrow exemptions outlined by section 3.3 of the order. Additionally, classified documents 25 years or older must be reviewed by any and all agencies that possess an interest in any sensitive information that is found in the document.
Moreover, only documents that concern human intelligence sources or weapons of mass destruction can be classified for longer than 50 years, otherwise special permission must be obtained. All documents that are older than 75 years are required to have special permission.
It was also important to note that Mr. Bradley’s letter emphasized that automatic declassification applies only to information in records held by the originating agency. It does not apply to information that originated with other agencies, and such other agency “equity” information is supposed to be referred to those agencies for their subsequent review.
Rescinding EO 13556
This month Robert C. O’Brien, assistant to the President for National Security Affairs, also released a memo that called for the rescission of Executive Order 13556, Controlled Unclassified Information.
In the memo, O’Brien stated that the purpose of EO 13556 was to “was to standardize executive branch handling of information that is not classified under E.O. 13526, Classifed National Security Information, or any predecessor or successor order, or the Atomic Energy Act of 1954.”
He added that “For decades, agencies often employed ad hoc, agency-specific policies, procedures, and markings to handle unclassified information that requires safeguarding or dissemination controls. This patchwork approach apparently resulted in agencies’ marking and handling information inconsistently, implementing allegedly unclear or unnecessarily restrictive dissemination policies, and creating potential obstacles to information sharing.”
According to the Department of Justice (DoJ), for a record to be exempt from automatic declassification, “agencies must have the specific authority to extend the duration of classification beyond 25 years in the form of a File Series Exemption and/or an Interagency Security Classification Appeals Panel (ISCAP) approved declassification guide.”
The DoJ added that information may be considered for exemption if one or more of the following exemption categories apply:
- 25X1 – reveal the identity of a confidential human source, a human intelligence source, a relationship with an intelligence or security service of a foreign government or international organization, or a non-human intelligence source; or impair the effectiveness of an intelligence method currently in use, available for use, or under development;
- 25X2 – reveal information that would assist in the development, production, or use of weapons of mass destruction;
- 25X3 – reveal information that would impair U.S. cryptologic systems or activities;
- 25X4 – reveal information that would impair the application of state-of-the-art technology within a US weapon system;
- 25X5 – reveal formally named or numbered U.S. military war plans that remain in effect, or reveal operational or tactical elements of prior plans that are contained in such active plans;
- 25X6 – reveal information including foreign government information, that would cause serious harm to relations between the U.S. and a foreign government, or to ongoing diplomatic activities of the U.S;
- 25X7 – reveal information that would impair the current ability of U.S. government officials to protect the President, Vice President, and other protectees for whom protection services, in the interest of national security, are authorized;
- 25X8 – reveal information that would seriously impair current national security emergency preparedness plans or reveal current vulnerabilities of systems, installations, or infrastructures relating to the national security;
- 25X9 – violate a statute, treaty, or international agreement that does not permit the automatic or unilateral declassification of information at 25 years.
The Freedom of Information Act
In addition to Executive Orders, there have been laws introduced that have called for the mandatory declassification reviews. This has included the Privacy Act of 1974, which established the Code of Fair Information Practice that governs the collection, maintenance, use, and dissemination of personally identifiable information.
President Lyndon B. Johnson let the freedom of a different sort ring when on July 4, 1966 he signed into law the Freedom of Information Act (FOIA), which took effect the following year. Amended multiple times over the years and most recently in 2002, the act allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government.
However, despite the name of the act, FOIA does not automatically guarantee that requested documents will be released, and refusals usually fall under one of the nine of the declassification exemptions that are meant to protect highly sensitive information.
But even if a FOIA request isn’t granted, time is on the side of those wanting to “know the truth” as documents of a certain age will become declassified.
No Longer a Secret
In 2011, the CIA declassified the U.S. Government’s six oldest classified documents, dating from 1917 and 1918. Those documents, which described secret writing techniques and which are now housed at the National Archives, were believed to be the only remaining classified documents from the World War I era.
Since 1996, the CIA has released more than 30 million pages as a result of Executive Orders, FOIA, the Privacy Act, and other mandatory declassification reviews. While secret writing techniques may not seem like much of a “secret” to keep, much more notable information has been declassified over the years.
This included the decades long “Operation Paperclip,” which involved the recruitment of ex-Nazi scientists including Wernher von Braun to work on programs for the United States; Project MK-ULTRA, which was a government program to develop drugs and other practices for mind control; and even Bikini Atoll nuclear tests that were conducted between 1945 and 1958.
Declassified documents also revealed ambitious plans, including a study to build a moon base in the 1960, and another that considered the idea of training cats to be spies. While many of the declassified documents are historically relevant, some have proven useful in other ways.
The CIA’s Corona project is such an example. It involved the use of spy satellites that took photographs of the Middle East and China between 1959 and 1972. Since being declassified, the photos have been used by archeologists who can study the regions in the photos, while scientists have used the same photos to track changes at the historical sites.
Much about the so-called Area 51 still remains a mystery, but a declassified CIA report from 2013 mentioned the site by name, and even placed it on a map. The truth may or may not be out, but it could be in a soon to be unclassified document.