Classified Information

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Classified Information

█ JUDSON KNIGHT

Classified information is any data or material that belong to the federal government and relate to sensitive topics such as military plans or the vulnerabilities of security systems. A number of laws or rules govern the control of classified information and access thereto, as well as the declassification of items no longer sensitive. Thanks to Executive Order 12958, a number of formerly classified documents regarding the Cold War and other critical junctures in U.S. security history are now accessible to the general public.

As defined in the Classified Information Procedures Act (CIPA), passed by Congress in 1980, classified information is any information or material that has been determined by the United States government pursuant to an executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in paragraph R of section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014[y])

The act names executive orders before legal statutes, because these orders—more than acts of Congress, decisions of the Supreme Court, or other rulings—are among the principal governing authorities in matters of security classification and access to classified information. In addition to executive orders, there are also other non-parliamentary government directives that present guidelines on classified information and access.

For the present purposes, it is helpful to be a bit more explicit than CIPA, and—using as a basis various executive orders, as well as historical practice—define classified information as materials or data belonging to, controlled by, and/or produced by the federal government, pertaining to intelligence sources or methods of collecting information; cryptology or codes; and the vulnerabilities, capabilities, or planning of systems, installations, or projects that relate to national security. Access to information thus "classified" is restricted on the basis of its relative importance, the consequences that would follow if it were passed to the wrong parties, and the individual's "need to know" that information.

Laws on classification procedures: An introduction. Federal laws on classification procedures provide for governing authorities who determine what information should be subjected to rules of restricted access. Specifically, Executive Order 12958, discussed below, defines the "original classification authority" as "an individual authorized in writing, either by the President, or by agency heads or other officials designated by the President, to classify information in the first instance." This governing authority also determines the level of classification, of which are three major ones: confidential, secret, and top secret. (The levels of security clearance are discussed in more detail elsewhere, within the context of security clearance investigations.)

A number of laws govern classified information, but most are not "laws" in the sense that they were duly reviewed by Congress or the Supreme Court; rather, the majority of guidelines in these matters come from executive orders or presidential directives (which are classified), as well as directives from the National Security Council, the director of Central Intelligence, the Department of Defense, and so on. A rare exception to this is CIPA, the Classified Information Act, which came into being through the ordinary channels of legislative procedure most commonly associated with a republican democracy. Even so, it has often been used to protect the "shadow government" of the security and espionage apparatus.

Classified Information Act (CIPA). Passed by Congress on October 15, 1980, CIPA was codified as 94 Stat. 2025, 18

U.S.C. Appendix, and further amended November 18, 1988, in 102 Stat. 4396. Known in legal circles as a procedural statute, CIPA presents guidelines for the use of classified information by both government and defendant in a legal case. As a procedural statute, it neither adds to nor subtracts from the rights of the defendant or the obligations of the government; rather, it is designed to prevent both sides from unauthorized disclosure of classified information, and to apprise the federal government of any security breach that may result from proceeding with a case.

During the Iran-Contra conspiracy trials in 1988, attorneys representing defendants Oliver North, John Poindexter, Richard Secord, and Albert Hakim filed a petition with U.S. District Judge Gerhard A. Gesell, stating that CIPA "imposes burdens on the defense unprecedented in American law." Because so much of their case rested on classified information, the defense argued, it would be legal suicide to disclose all of that information to the prosecution.

CIPA continued to be a theme throughout the proceedings. In July 1989, North's attorneys filed an appeal stating that Gesell, who established guidelines for compliance with CIPA, nevertheless permitted infringement of North's constitutional rights. Later, Senate majority leader George Mitchell complained that CIPA was too lenient, because it allowed Thornburgh to put a stop to the trial of Costa Rica Central Intelligence Agency (CIA) station chief Joseph F. Fernandez for his role in Iran-Contra.

More than a decade after Iran-Contra, attorneys representing Chinese scientist Wen Ho Lee, accused of stealing secrets from the Los Alamos National Laboratory, attempted to use CIPA in a way different from that of North or Poindexter. Instead of withholding information, they were convinced that the release of highly sensitive data that the government had no desire to reveal publicly was a major reason for the government to avoid vigorous prosecution of Lee on the most serious charges.

Executive Order 12958. The most significant presidential provisions regarding classified information are the executive orders 12958 and 12968, both issued by President William J. Clinton. The second of these is discussed elsewhere, in the context of security clearances. The first,

titled "Classified National Security Information," was signed on April 17, 1995. According to its opening sentence, the order "prescribes a uniform system for classifying, safeguarding, and declassifying national security information."

In addition to defining "classification" and the basic levels thereof, as well as types of information that may be classified, the order provides that "If there is significant doubt about the need to classify information, it shall not be classified." Furthermore, "If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level." The order prescribes the use of classification markings to distinguish varieties of classified information, and provides for "derivative classification," or "the incorporating, paraphrasing, restating or generating in new form information that is already classified, and marking the newly developed material consistent with the classification markings that apply to the source information."

Declassification and Executive Order 13142. Particularly important are the provisions of Executive Order 12958 with regard to declassification, or the removal of restrictions on access to information. Declassification is not to be automatic, "as a result of unauthorized disclosure of identical or similar information." However, except in specific circumstances, information is to be automatically declassified after 10 years. Those specific circumstances include situations in which national security would be jeopardized by disclosure of the information, as well as instances in which automatic declassification could violate a legal statute. A notable example of such a statute is the Privacy Act of 1974.

Executive Order 13142, signed November 19, 1999, amended 12958 by extending the amount of time until certain types of information can be declassified. Specifically, the order addresses Section 3.4 in the earlier order, which provides for the declassification of information more than 25 years old that has been determined to have historical value in accordance with Title 44, U.S. Code. Whereas the earlier order had provided for declassification within five years, 13142 extended this period for 18 months. As the Washington Times reported in December 1999, this change angered the American Legion and other veterans' groups eager to search records from the Vietnam era for information regarding prisoners of war (POWs) and others who were missing in action (MIAs).

Post-12958 declassification efforts. An August 1998 White House press release called Executive Order 12958 became "the first effort since the end of the Cold War to reassess the balance between open government and the need to maintain secrets vital to national security." Although critics disputed White House claims as to the extent of the effort, the order did open a vast body of information for declassification. According to the press release, the Interagency Security Classification Appeals Panel established by the order had, in the three years that followed its issuance, reviewed some 96 documents and released 81 of them.

Among these were documents from the administrations of presidents Dwight D. Eisenhower, John F. Kennedy, and Lyndon B. Johnson regarding the deployment and possible use of nuclear weapons in Europe; two 1962 letters from Indian Prime Minister Jawaharlal Nehru to Kennedy expressing fears of an impending nuclear war between his nation and China; State Department communications regarding Israeli nuclear capabilities during the June 1967 Six-Day War; and a September 1967 memorandum to Johnson regarding military options available to the North Vietnamese army. Less than 25 years old were documents from the administration of President Gerald R. Ford concerning nuclear weapons programs in South Korea. Some of the latter information remained classified, because disclosure would endanger a source, or because its release would harm U.S. relations with foreign governments.

NSA and NIMA records. The National Security Agency (NSA) subsequently undertook a review of documents for declassification, a project it named OPENDOOR. As NSA announced in a press release dated April 2, 1996, it had turned over some 1.3 million pages of declassified documents to the National Archives and Records Administration (NARA). Intriguing as the contents were, these documents were far more than 25 years old; rather, they dated from the beginning of World War I to the end of World War II. Among them were a cryptologic study of the 1917 Zimmermann telegram that precipitated U.S. entry into World War I; information on the Native American "Codetalkers" of World War II; and the captured diary of a Nazi U-boat.

Much more recent were the photographs released by the National Imagery and Mapping Agency (NIMA) in 1996 and again in 2002. These included millions of frames of imagery taken by KH-1 through KH-6 spacecraft, the KH-7 Surveillance Imaging System, and the KH-9 Geospatial Imaging System. Taken between 1963 and 1980, the images from the "Keyhole" satellites included shots of Hanoi and Beijing, Egypt's Aswan Dam, the Eiffel Tower, and the U.S. Capitol building. Still withheld were numerous images, some dating as far back as 1963, that were still considered too sensitive for release.

NARA, CIA, and the Continuing Task of Declassification. Further information regarding documents released in accordance with Executive Order 12958 is available at the NARA Web site. With the help of teams sent by CIA under a project known as "Remote Archives Capture Project," NARA had by the early twenty-first century declassified millions of pages of material. Among these were State Department files offering information on Nazi gold from World War II; Kennedy's tapes of conversations during the Cuban missile crisis of October 1962; the January 1968 incident in which sailors from the U.S.S. Pueblo were captured by North Korea; headquarters reports from U.S. military commands in Vietnam and Thailand through 1975; information on POWs and MIAs from Korea and Vietnam; and records of U.S. participation in SALT (Strategic Arms Limitation Talks) negotiations.

It was an intriguing collection, but much remained to be processed by historians, scholars and archivists. Some of the processed information may remain classified indefinitely. According to Michael J. Kurtz, aside from "unique items such as Secret Service records relating to the protection of the President and Internal Revenue Service tax information," items exempted from release fell into four basic groups: information on atomic energy; intelligence sources and methods; sensitive foreign-relations topics (e.g., U.S. discussions on border disputes between other nations, such as that between India and Pakistan over Kashmir); and information from foreign governments that the latter had not approved for release.

█ FURTHER READING:

BOOKS:

Disclosure of Classified Information to Congress. Washington, D.C.: U.S. Government Printing Office, 1998.

Richelson, Jeffrey T. The U.S. Intelligence Community, third edition. Boulder, CO: Westview Press, 1995.

PERIODICALS:

Black, Chris. "Mitchell Urges New Classified Data Law." Boston Globe. (December 5, 1989): 3.

Elvin, John. "We've Waited Long Enough." Washington Times. (December 27, 1999): 26.

Lardner, George, Jr. "Classified Trial-Data Law Attacked." Washington Post. (April 30, 1988): A4.

ELECTRONIC:

Declassification and Freedom of Information Act (FOIA). Defense Prisoner of War/Missing Personnel Office. <http://www.dtic.mil/dpmo/foia/> (January 21, 2003).

OPENDOOR. National Security Agency. <http://www.nsa.gov/programs/opendoor/> (January 21, 2003).

U.S. National Archives and Records Administration. <http://www.archives.gov> (January 21, 2003).