Policy and News Update for December 11, 2007



[The next edition of the Updates will be published on January 2,
2008]



In This Issue: [click on the link to go to the
corresponding section]

I. Interview with outgoing ISOO Director
Bill Leonard


II. Legislative updates

News from
Coalition Partners and Others

I. Interview with outgoing ISOO Director Bill
Leonard



J. William (“Bill”) Leonard, director of the Information
Security Oversight Office (ISOO),
announced his retirement from government service earlier this
fall, after over thirty years as a highly-respected public
servant. He graciously agreed to answer a few questions about
his career, experiences, and policy involving transparency,
secrecy, and classification.


OpenTheGovernment.org: What do you see as the major
accomplishments during your time as head of ISOO?


Bill Leonard: Three things: first was the virtual
institutionalization of automatic declassification which
occurred in 2003 when the President promulgated a revision to Executive Order 12958, “Classified
National Security Information”
and called for a renewed
commitment by the Executive branch to the concept of
declassification tied to specific deadlines.


Second, after considerable delays, those Executive branch
agencies with substantive classification programs have
successfully created and continued to devote the necessary
resources to maintain a credible capability to systemically
declassify records — a capability that many agencies did not
have as recently as 5 years ago.


Third, agencies have collectively come to the realization that
success cannot be achieved individually — that an Executive
branch-wide approach to declassification is the only viable
solution.


OTG: What would you pencil in on your successor’s to-do list;
what still needs to be accomplished? What kind of advice would
you offer him/her?


BL: First, we have to capitalize on the realization I referenced
above and achieve a truly integrated Executive branch-wide
approach to declassification and release. Equally important, we
have to recognize how the current declassification system is
ill-equipped to handle the challenges of tomorrow, both in terms
of the vast volume of records becoming eligible for
declassification as well as the increasing likelihood that many
of these records will be electronic. It’s time to take the
process to the next level and thus an opportune time for someone
new to take us there.


One of my biggest regrets is that I was unable to see to
fruition one of the first initiatives I undertook when I came to
this position in 2002, i.e. revising those portions of E.O. 12958 [(as amended)] that serve
as an impediment to information sharing. Currently, the default
of the E.O. is not to share classified information without first
getting the permission of the originator. This is an antiquated
concept that most agencies and others such as the “9-11
Commission” clearly recognized needed to change. I am
disappointed that this never came to be and trust that my
successor will be more successful in fostering implementation.


OTG: Is there any news about the transition to a new ISOO
director? (nominee; timetable; potential impact on policy)


BL: Recruitment for a successor has taken place and the
selection process is underway. The Archivist of the United
States makes the selection, subject to the approval of the
President.


OTG: What background does the new Director have to have in order
for the agencies to be influenced by the ISOO director’s
efforts?


BL: What was useful for me was my almost thirty years of
experience with the Department of Defense dealing with a myriad
of national security issues. It is difficult enough to influence
agencies’ actions from the inside; it’s often more difficult to
do so from the outside. To be effective in that regard, it is
essential to be able to understand why agencies have adopted
certain positions — to understand what it is they are
attempting to achieve, and then work with them in order to show
how they can achieve most if not all their objectives and still
be in compliance with the President’s classification policies.


OTG: What steps do you think the next president should take to
make the national security classification system promote
openness to the greatest extent possible?


BL: I would recommend a basic balancing test: Would the harm to
national security that could occur should the information be
subject to unauthorized disclosure exceed the harm to national
security that could occur should the information be classified
and withheld from the public?


I say this in that most people would acknowledge that today, as
a nation, we are engaged in an ideological struggle. Such times
call for increased transparency on the part of our government,
not less. It is traditional American ideals and values that will
allow us to prevail in these uncertain times. Excessive secrecy
at best can reduce us to a caricature in the minds of both the
American and world populace. At worst, it can facilitate us
engaging in conduct that is inconsistent with our core ideals
and values, which in the long-term undermines our leadership in
the world and thus our national security.


OTG: What changes could create more accountability to the public
through ISOO — and to Congress — from those with
responsibility for classifying information, and securing
classified information?


BL: I have encouraged agencies to consider the appointment of
impartial officials (an ombudsman, if you will) whose sole
purpose is to seek out inappropriate instances of classification
and to encourage others to adhere to their individual
responsibility under the current framework to challenge
classification, as appropriate. In addition, I have encouraged
agencies to ensure the routine sampling of recently classified
information to determine the propriety of classification and the
application of proper and full markings. The results of these
reviews should be reported back to agency personnel as well as
to an ombudsman or other such official who would be responsible
to track trends and assess the overall effectiveness of the
agency’s efforts and make adjustments, as appropriate.

Some agencies use a panel of cleared outsiders (historians) to
advise on effectiveness of declassification programs (the
“back-end” of the process). There is no reason why this concept
could not be applied to “front-end” of the process and agencies
use a panel of cleared outsiders (perhaps state and local
officials) to advise on classification decisions and their
impact on information sharing and other issues of public
interest.


There are also “best practices” that could be adopted Executive
branch-wide. These include a formal system for certifying
classifiers and declassifiers and the requirement that a
personal identifier as to the classifier or declassification
reviewer be included on each document or record.


OTG: Given that structural and political incentives towards
secrecy can seem nearly inexorable at times, how do you foresee
classification policy evolving?


BL: Slowly. Information is power and individuals and
organizations are usually reluctant to be perceived as
relinquishing power. Nonetheless, because information is as much
an element of national power as is population, natural resources
and capital, I see the need for a more integrated national level
approach to information, to include how it is accessed, as
compared to the more ad hoc, agency-centric approach that is
taken today.


OTG: Do you have any other thoughts about declassification,
reclassification, or the classification system, or about the
growing trend of SBU policy/practices outside the system of
classification?


BL: One observation I would like to make is with respect to the
success that was achieved with the inter-agency protocol that
was implemented after the ISOO audit in 2006 of the withdrawal
of records from the National Archives for purposes of
classification. Prior to that, approximately 25,000 records had
been identified as being removed from the public shelves due to
concerns over improper declassification. In the subsequent year
and a half, only seven records have been removed under such
circumstances, and the National Archives has publicly
acknowledged each instance. This is an example of inter-agency
cooperation at its best.


OTG: What do you see yourself doing next?


BL: While I may be retiring from the Federal service, I am not
retiring from the issues to which I’ve devoted my entire adult
life and thus will be looking for new opportunities to engage on
these and other topics that are important to our nation’s
continued well-being.

II. Legislative updates

OpenTheGovernment.org, along with thirty signatories, sent a joint letter to urge senators running for
president to co-sponsor S. 886, The Presidential Records Act
Amendments of 2007 (if they haven’t already). Follow the
progress of S. 886 online here.


Senators Leahy and Cornyn introduced an updated version of S.
849, The OPEN Government Act, with new language intended to move
the bill forward in the House and Senate. For more information,
see Cox Washington’s The Secrecy File.

News from
Coalition Partners and Others


New book
examines balance of power between public and
government


Coalition director Patrice McDermott’s book,
Who Needs to Know? The State of Public Access to
Federal Government Information
has been published this fall
by Bernan
Press
. The book reviews the legislative and political
background of federal information policy from the Paperwork
Reduction Act and FOIA to the E-Government Act and recent
executive orders, then tracks recent implementation (and
non-implementation) of such rules, including executive orders
and rule-making.


“The
Atrocity Files: Deciphering the Archives of Guatemala’s Dirty
War”


The December issue of Harper’s Magazine features an article by
National Security Archive senior analyst Kate Doyle, along with
nine pages of full-color photographs. “The Atrocity Files:
Deciphering the Archives of Guatemala’s Dirty War” describes the
process of obtaining and preserving police records that could
number fifty million pages, involving government-sponsored
activities that left over 200,000 citizens dead or missing,
during Guatemala’s thirty-six-year “dirty war.” Subscribers can
read the article online; the original
posting about the police archives is available online at the National Security Archive.

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