On his first day in office, President Obama issued a memo to all federal agencies, ordering them to release more classified documents to the public. When considering requests under the Freedom of Information Act, it read, a “presumption of disclosure” should govern all decisions. The same should be true when deciding whether to classify documents to begin with. “In the face of doubt,”Obama declared, “openness prevails.”
So, more than two years later, how’s that going?
Compared with his predecessor, George W. Bush, whose standing order was literally “When in doubt, classify,” things are going great. Compared with Obama’s own standards and expectations, not so much.
Beginnings were auspicious. In that same first-day memo, Obama instructed Attorney General Eric Holder to set new guidelines on classification procedures by the end of the year. Holder assembled a task force, which published an executive order on Dec. 29, 2009.
Then came the bureaucratic grind. The executive order required all agencies to issue implementing regulations by the end of 2010. Yet, according to a report published this month by the Information Security Oversight Office, fewer than half the agencies—19 out of 41—have done even that much. Even among those that met the procedural deadline, few have done anything of substance—that is, few have slowed down their rate of classifying new documents or speeded up their rate of declassifying old ones.
According to Steven Aftergood of the Federation of American Scientists’ Secrecy News blog, federal agencies made 220,734 decisions to classify documents in 2010—a 22.6 percent increase over the year before. As for opening the records of the past, the National Declassification Center has a backlog of documents totaling 400 million pages. Most of them have been cleared by the agency where they originated, mainly the Defense Department. But there’s a hang-up owing to a concept called “agency equity.”
“Agency equity” is the Purgatory of FOIA-land. In many cases, the originating agency—say the Pentagon, the State Department, or the Department of Energy—will approve the declassification of an old secret document. But if the document contains any material that came from the Central Intelligence Agency, then the CIA has “equity” in that document and, therefore, can choose to weigh in on the decision to release. And the CIA is notoriously obstructionist.
For instance, every year, the State Department releases a set of volumes called Foreign Relations of the United States, consisting of once-classified documents that shed light on events of 30 years earlier. In 1990, State’s historians were putting together the volume on the 1953 Iran coup—when the chairman of its advisory committee, Warren Cohen, a history professor at the University of Michigan, noticed that it contained nothing about the CIA’s role in the coup. This was because the CIA refused to declassify its documents—and State relented. Cohen resigned in protest.
The State Department is now preparing a revision of the Iran volume, but the CIA is still obstructing. This is the case even though the official CIA history of the coup, known as the Wilber Report, was long ago made public through a press leak. The CIA’s position is that it’s still classified, and to acknowledge a leak so officially would set a bad precedent. State’s position is that if they publish a revision that still doesn’t mention the CIA’s role, the whole series—and the State Department historian’s office—would lose credibility.
But that’s history. Deeper problems engulf the stash of classified documents today. For one thing, it’s enormous. For another, it’s growing—and it consists, increasingly, of electronic documents: email, PDF attachments, PowerPoint files. And, remarkably, until just two years ago, the National Archives had no way of processing, much less storing and cataloging, that kind of information. The situation has improved in the last year, but only a little.
The National Archives created an Electronic Records Archive in 2002 and issued regulations requiring agencies to store all such documents, including email. But an official “self-assessment report,” published in February, found that while many agencies are saving electronic records, only a few are actually preserving them in a way that allows users to retrieve and read them. Most agencies don’t have full-time records managers, and only a few—34 of the 251 agencies surveyed—offer formal training in archival management.
Part of the problem is that in 2005, the government signed a contract with Lockheed-Martin to design and develop the software. Why they picked a groggy aerospace company for the job has been a mystery to the archivists’ community ever since. Lockheed was awarded $317 million in a “cost-plus” contract, meaning the National Archives would have to pay for cost overruns. The Government Accountability Office recently estimated that another $1 billion is needed to finish the system as promised. Needless to say, there’s no money for this task. (The Electronic Records Archive’s budget for fiscal year 2011 is $72 million—a reduction from $85.5 million in 2010.)
Tom Blanton, director of the National Security Archive, a private organization that files many FOIA requests and lawsuits, sees sheer volume as the biggest problem for future historians and interested citizens. When he sued the Reagan administration for access to the White House computer’s backup tapes, there were 200,000 email messages on file. Eight years of Bill Clinton’s presidency produced 32 million emails. Eight years of George W. Bush’s produced 220 million. Obama’s will likely create more.
“Imagine the review process,” Blanton says. A whole generation of memoranda will be, in effect, lost—because, even if all the material is properly preserved and maintained, nobody will be able to search through it. It’s like the World Wide Web without Yahoo, much less Google.
A 1974 revision to the Freedom of Information Act (which initially took effect in 1967) required agencies to respond to requests within 10 days. It soon became clear that this timetable was impractical. But requests often sit in limbo for years—and don’t get settled for decades. This is a long-standing problem, which Blanton attributes more to “incompetence and inertia more than malevolence.” Still, the system is whirring out of control, and it will take not just a White House order but periodic White House attention to usher in what Obama called, in his first-day memo, a “new era of open government.”
Here’s one more case of dysfunction, but within it a simple solution. In 1995, President Clinton issued an executive order requiring agencies to write a “sunshine date” on the top of a classified document—the date by which the document has to be declassified. (Such a date can be seen at the top of many documents in the WikiLeaks caches.) But here’s the rub: There is no system in place to make this happen automatically—not even an automated calendar that makes a document with a sunshine date of, say, July 10, 2013, appear on some bureaucrat’s list or agenda a couple of weeks before that date, so some committee can review whether it’s still a good idea to release it. There must be an absurdly easy software solution to this problem. But nobody’s ordered anyone to find it and put it into place. At the very least, somebody, do that.