While the rest of the intelligence world debates the Senate’s interrogation report, Overt Action is kicking off our Intelligence Committee Agenda series with a far sexier topic. That’s right – it’s time to discuss classification reform! Problems with the classification system have been festering for decades, have gotten worse with the advent of new information technologies, and, especially in the wake of the Snowden disclosures, are now ripe for engagement by Congress.
Since the 1950s, there have been ten* major reviews of the classification system the U.S. government depends upon. These reviews have nearly universally concluded that the classification system is broken and in need of an over hall. Here is a sample of some of those conclusions:
- “After extensive research and discussion with stakeholders in and outside the Government, the Board has concluded that the current classification system is fraught with problems.” Transforming the Security Classification System, The Public Interest Declassification Board, 2012.
- “The classification system and personnel security systems are no longer trusted by many inside and outside the government.” The Commission on Protecting and Reducing Government Secrecy, 1997.
- “The classification system is cumbersome and classifies too much for too long.” The Joint Security Commission, 1994.
- “There is a fundamental problem with the classification system because of its complexity.” Meeting the Espionage Challenges: A Review of United States Counterintelligence and Security Programs, Senate Select Committee on Intelligence, 1986.
The shortcomings identified in these reports are the same ones that exist today. They focus on the three-tiered classification structure (CONFIDENTIAL, SECRET, TOP SECRET) along with the compartments and special access programs that sit on top of that structure. In the current system, information is classified based on the amount of damage to national security that would be caused if the information were to be disclosed (‘damage’– CONFIDENTIAL, ‘serious damage’ – SECRET, ‘exceptionally grave damage’ – TOP SECRET).
The problem with this structure is that it doesn’t make enough intuitive sense to those within the government who actually use it. Nobody can say with a high degree of confidence what distinguishes between ‘serious damage’ and ‘exceptionally grave damage.’ This allows for a high level of subjectivity when information is first classified. As a result, a TOP SECRET label becomes meaningless and the classification of information becomes rote rather than proscriptive. A TOP SECRET label will tell us who can have access to that document (i.e. those with a TOP SECRET clearance) but it doesn’t really tell us why those people should have access or why the document shouldn’t be shared more broadly with the general public.
Much of the discussion of this issue focuses on classification reform as a mechanism to bring greater transparency to national security. But the problem here is not simply one of government transparency or lack thereof. Rather, what most of these reviews recognize is that a broken classification system actually jeopardizes national security by creating an incoherent framework that is capricious and prone to failure. This is aptly captured in Supreme Court Justice Stewart’s concurrent opinion in the Pentagon Papers case, in which he stated, “When everything is classified, then nothing is classified. And the system becomes one to be disregarded by the cynical or the careless and to be manipulated by those intent on self-protection and self-promotion.”
When transparency advocates criticize the classification system, it is out of a concern for manipulation by those “intent on self-protection.” But for intelligence professionals, it is hard to read Stewart’s quote about a system “disregarded by the cynical or the careless” and not think of Edward Snowden, a man whose objections to certain surveillance activities prompted him to disclose vast amounts of classified information. In my view, some of that information—including TOP SECRET information—was worthy of greater public debate and its disclosure did not jeopardize national security. But much of the information Snowden disclosed was consistent with NSA’s mission and/or was appropriately classified. Putting aside questions of whether Snowden should have taken matters into his own hands here, I think it is fair to say that the system he operated within failed to distinguish between information that should have remained secret and information that should have never been classified.
So what is to be done?
A good place to start on this issue is with those previous commissions and reports referenced earlier. They contain a large number of sensible recommendations, many of which have never been acted upon. The Commission on Protecting and Reducing Government Secrecy, commonly referred to as the Moynihan Commission, is especially helpful and has a number of actionable recommendations that Congress might consider.
These commissions consistently call for changing and simplifying the three-tiered system. Again, here is a sample of recommendations:
- “Classification should be simplified and rationalized by placing national security information in only two classification categories.” The Public Interest Declassification Board, 2012.
- “We propose a new one-level classification system [with two degrees of protection available to classified information]. Under that system, information is either classified or it is not.” The Joint Security Commission, 1994.
- “The Committee [recommends] a two-level system, based essentially on the current Secret Standard and the Sensitive Compartmented Information model used in the Intelligence Community.” Senate Select Committee on Intelligence, 1986.
- “[T]he Confidential classification [should] be abolished. The Commission is convinced that retention of this classification serves no useful purpose which could not be covered by the Top Secret or Secret classification.” The Wright Commission, 1957.
The solutions advocated for above, which all essentially involve moving to a two-tiered system, have the virtue of abandoning the pretense that we can easily assess damage to national security. But to me, creating two larger buckets in which to dump classified information is not the optimal approach. I prefer instead the one found in the Moynihan Commission report, which noted, “[A]lthough changing the number of levels may simplify the classification system, the Commission has found no evidence that such a change would reduce the amount of classification.” Instead, that Commission recommended clarifying and narrowing categories of information eligible for classification, along with creating a statute that specifies the principles the federal government should follow to determine when a piece of information should be secret.
The 1994 Joint Security Commission noted that, “classification management is the ‘operating system’ of the security world.” This analogy helps explain both why it is so important to fix the classification system and why it has proven so difficult to fix. Just like when we upgrade Windows on our PC and break software designed to run on the older operating system, changes to the classification system could have broad and unforeseen effects. But when an older version of Windows is replete with security flaws, not upgrading that system can become a bigger security problem. That is the situation we now find ourselves in with the classification system, which produces massive amounts of classified information that limits transparency while encouraging leaks.
Congress should look at this national security ‘operating system’ to see what improvements can be made to both increase transparency while better protecting information that should rightly be classified
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*Reviews of the U.S. Classification System.
- Transforming the Security Classification System, The Public Interest Declassification Board, 2012, available here.
- Report of the Joint Security Commission II, 1999, available here.
- Report of the Commission on Protecting and Reducing Government Secrecy, 1997, available here.
- Redefining Security, Joint Security Commission, 1994, available here.
- Meeting the Espionage Challenges : A Review of United States Counterintelligence and Security Programs, Senate Select Committee on Intelligence, 1986, available here.
- Keeping the Nation’s Secrets, A report to the Secretary of Defense by the Commission to Review DoD Security Policies and Practices, 1985, available here.
- Seitz Task Force, 1970.
- Moss Subcommittee, 1958.
- The Commission on Government Security (the Wright Commission), 1957, available here.
- Report to the Secretary of Defense by the Committee on Classified information, 1956, available here.
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