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REPORT
of the
COMMISSION ON
PROTECTING AND REDUCING
GOVERNMENT SECRECY

1997



SENATE DOCUMENT 105-2

PURSUANT TO PUBLIC LAW 236

103RD CONGRESS


UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1997




Chairman
Daniel Patrick Moynihan, New York

Vice Chairman
Larry Combest, Texas


Commission Members
Jesse Helms, North Carolina
Lee H. Hamilton, Indiana
John M. Deutch, Massachusetts
Martin C. Faga, Virginia
Alison B. Fortier, Maryland
Richard K. Fox, District of Columbia
Ellen Hume, District of Columbia
Samuel P. Huntington, Massachusetts
John D. Podesta, District of Columbia
Maurice Sonnenberg, New York



Contents

Preliminary Pages

Table of Contents and Figures and Tables

Summary of Findings and Recommendations

Chairman's Foreword

Vice Chairman's Foreword
I. Overview: Protecting Secrets and Reducing Secrecy:
Commission Purposes and Objectives
Secrecy Issues Not Addressed by the Commission
Defining Government Secrecy
The Means for Protecting Government Secrets
The Importance of Protecting Secrets
The Intangible Costs of Secrecy
Efforts to Quantify the Costs of Secrecy
Evolving Concepts of National Security
A Statutory Basis for the Secrecy System
The Case for a Statutory Approach
A Proposed Statute
Conclusion

II. Rethinking Classification: Better Protection and Greater Openness
Toward a Life Cycle Approach to Classification Management
The Secrecy System
Bases for Classification
A Half Century of Executive Orders
Protection of Sources and Methods
Protection Under the Atomic Energy Act
Living With Ambiguity: The Levels of Classification
Controlling Access to Secrets: The "Need-to-Know" Principle
Clarifying Security in Special Access Programs
Protecting Other Government Information
The Classifiers
Original Classification Authorities: The Linchpin of Classification
Derivative Classifiers: Enhancing Accountability Where it Matters
Developing Better Classification Guides
Improving the Training and Education of Classifiers
The Key to Better Classification: The Initial Decision to Classify
The Importance of the Initial Decision
Improving the Initial Decision
Enhancing Implementation and Oversight
A Greater Role for the Congress
The Focal Point: Executive Branch Policy Development and Oversight
Policy Development: Who's in Charge?
Oversight: The Critical Missing Link
A New Approach to Policy Development and Oversight
Strengthening Implementation and Oversight Within Agencies
Conclusion

III. Common Sense Declassification and Public Access:
Why Public Access Matters
Promising Developments: Declassification Success Stories
Unnecessary Secrecy Persists
Sensible Risk Management
Continuing Barriers to Declassification and Public Access
Declassification Under Past Executive Orders
Executive Order 12958: A Renewed Focus on Declassification
Declassification and the Freedom of Information Act
How Much Is Still Classified?
How Long Does It Take Before Information Is Declassified
How Much Does Declassification Cost
The Impact of Agency Equities: Multiple Agency Reviews Mean Multiple Delays
The Current State of Agency Records Management
Agency Attitudes Affect Public Access
Public Access in the Information Age
Adequate Oversight Is Crucical to Sensible Declassification Policies
Recommendations for Improving Declassification and Public Access
Establishing A National Declassification Center to Coordinate Public Access Policy
Clarifying Protection of Sources and Methods Information
Improving Records Management and Other Agency Practices to Promote Public Access
Conclusion

IV. Personnel Security: Protection Through Detection:
Overview of the Personnel Security Process
The Background Investigation
Types of Investigations
Investigative Costs
The Adjudication
Improving the Current System
Modernizing the System's Cold War Foundations
Increasing Clearance Reciprocity and Standardization
Enhancing Investigative Quality
Reducing Inefficiencies in the Processing of Cases
Addressing Transparency and Due Process Concerns
Allocating Resources More Effectively
Strengthening Employee Assistance Programs
Assessing the Value of Financial Disclosure
Advancing Polygraph Research
Making the Clearance Process More Efficient Through Automation
Conclusion

V. Information Age Insecurity:
Federal Government Information Security and the National Information Infrastructure
The Growing Threat to Information Systems Security
The Improving Federal Response
Improving Oversight Mechanisms
Enhancing Executive Branch Oversight and Policy Formulation
Enhancing Congressional Oversight and Policy Formulation
Addressing Current Problems
Preventing Redundancies in Technology Development
Promoting Government-Industry Cooperation
Discouraging the Use of Classification as an Alternative to Effective Information Systems Security
Encouraging Greater Accountability and Leadership
Planning for the Future
Disseminating Threat Information
Increasing Awareness of Computer Attacks
Developing Auditing and Intrusion Detection Capabilities
Including Security in Automation Projects
Professionalizing Information Systems Security
Strengthening Information Technology Training and Awareness
Conclusion

VI. Appendices:
A. Secrecy: A Brief Account of the American Experience
Secrecy as Regulation
The Experience of the First World War
Loyalty
The Encounter with Communism
The Experience of the Second World War
The Experience of The Bomb
The Cold War
A Culture of Secrecy
After the Fall
B. Commission's Authorizing Statute
C. Summary Recommendations
D. Biographical Information
E. Acknowledgments
F. List of Commission Meetings and Programs
G. Major Reviews of the U.S. Secrecy System
H. Acronyms and Abbreviations


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Backgrounders

A Fourth Level of Classification

SBU -- Sensitive But Unclassified information, and FOUO -- For Official Use Only

The Homeland Security Act authorized DHS to identify and safeguard “sensitive unclassified information” but it didn’t define the term. The department issued a “For Official Use Only” directive in May defining SBU as any information whose “unauthorized disclosure could adversely impact” someone’s privacy or “the conduct of Federal programs” or other programs or operations “essential to the national interest.” The department revised the memo on Jan. 6 to eliminate the use of non-disclosure agreements to enforce the protection of information. The definition of SBU did not materially change.


SSI – Sensitive Security Information

To survive in our nation’s capital, you need a working knowledge of Acronym, the formal albeit unofficial (FAU) language of bureaucracy. Acronym is what you need to know so you know what you can’t know. SSI, CII, SHSI, SBU and FOUO are all current letter combinations that limit the public’s right to know and therefore your newsgathering. Each of these – and all of them collectively – represent a fourth level of classified information, more or less sanctioned by Congress, and enforced by expansive departmental regulations that have installed secrecy under the mantle of national security. Sensitive Security Information (SSI) is potentially the most expansive because it covers any information deemed to relate to transportation of any kind.


SHSI – Sensitive Homeland Security Information

This has yet to be publicly defined, although a Department of Homeland Security directive is anticipated any time. It would cover information shared with other departments, state and local governments and first responders, and be enforced through non-disclosure agreements that carry stiff fines and prison terms. DHS recently ask all of its employees to sign such agreements.

CII – Critical Infrastructure Information

Critical Infrastructure Information is the identifier used by the Department of Homeland Security for information voluntarily submitted to it by owners of the nation’s infrastructure – utilities and chemical plants. Even the fact that some information has been filed is confidential. DHS is debating whether to gather this confidential information through other federal agencies, which collect information that is now public record from the same infrastructure owners.


Access to Information

Freedom of Information Act

The Freedom of Information Act was first adopted in 1966, amended in 1974, and amended again in 1996 to include electronic records. More than three million requests are filed each year and for many, it's a long wait before the documents are produced. For journalists, filing a FOIA request should be a last resort.


Congressional Research Service: A Brief History of Access to Information

There’s no provision for information sharing in the Constitution. And for many years, the executive branch used “artful interpretation” of a 1789 housekeeping statute to limit public and interagency access to records. Historian Harold Relyea, in a Congressional Research Service review, notes that the reform Administrative Procedure Act of 1946 indicated that matters of official record should be available to the public, but then said accesscould be denied for “for good cause found” or “in the public interest.” His report offers a quick review of access laws.


HIPAA

On August 24, the Department of Health and Human Services finally responded to requests from journalism groups to clarify the privacy provisions of the act. State law prevails.

The Ashcroft Memo

John Ashcroft’s directive, issued a month after 9/11, reversed FOIA policy at federal departments and agencies. In place of a "presumption of openness" standard, it offered support for any legal barrier to disclosure.

The Card Memo

The White House Chief of Staff's directive to agencies and departments to review their "safeguarding" procedures and tighten records controls.

Classification of Information - Top Secret, Secret, Confidential

Briefing Report on Overclassification

A briefing report for the House Subcommittee on National Security’s March 2 hearing concluded that overclassification ultimately incurs avoidable fiscal costs and compromises national security. …And government officials confronted with dizzyingly complex rules for numerosus categories of classified information often cannot or do not distinguish truly significant security matters from routine material marked secret out of an excess of caution or zeal.”


Classification Report: 50% More "Original" Secrets

Despite all the talk in Congress and several special commission reports citing over-classification, the federal government continues to make new secrets at an ever-faster rate. The 2004 report of the Information Security Oversight Office said thre was a 10 per cent overall increase in classification of documents last year and a 50 per cent increase in “original” classifications, the base decisions from which all others flow sooner or later. ISOO also said it spot checked more than 2000 classification decisions and found that mistakes, small and large, had been made in more than half.


Intelligence Reform Bill

Broad New Authority. Is the Oversight Sufficient?

Congress passed the Intelligence Reform Bill (S2845) on Dec. 9 and President Bush signed it into law a week later. It is the most sweeping reorganization of the nation’s intelligence community since 1947, giving a new Director of National Intelligence vast new authority over intelligence collection and sharing by 15 federal agencies. Congressional leaders assured that the bill is designed to provide as much transparency as possible when balanced against security needs, however the new law contains fewer congressional checks on that balance than initially proposed.


Government Secrecy

A Historical Look at the Withholding of Information

A Congressional commission took a long look at federal government secrecy in the mid-90s and concluded, 50 years after adoption of the National Security Act, that things had gotten out of hand. It said the best way to protect secrecy was to reduce it. The study led by the last Sen. Daniel Moynihan provides a comprehensive look at the history of federal government secrecy from colonial days through the fall of communism.

Minority Critique of the Last Four Years

In September, 2004, a minority report of the House Committee on Government Reform concluded that the past four years have seen “an unprecedented assault on the principle of open government.” The report for Rep. Henry Waxman takes a hard look at the policies and practices of the current administration.

Reporter's Privilege

Congressional Research Service Report on Reporter's Shield Laws

Congress is considering two bills to create a media shield law which would provide federal statutory recognition of a reporter’s “privilege” to decline to provide testimony identifying a confidential source in legal, administrative, or other governmental proceedings. Thirty-one states and the District of Columbia have recognized the privilege through enactment of “shield laws,” which protect the relationship between reporters, their source, and sometimes, the information that may be communicated in that relationship. A new report by the Congressional Research Service provides an brief overview of trends among the states individual statutes, then sets out the full text of the state shield statutes.


 
 
 

Congressional Documents on Secrecy and Security - 2003

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