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Washington’s Secrecy Bubble Needs to Be Popped

Too much classification undermines the rule of law. Here’s how to fix a broken system.

By , a co-director of the Brennan Center for Justice’s liberty and national security program.
CIA headquarters
CIA headquarters
A janitor mops the floor at the headquarters of the CIA in Langley, Virginia, on March 3, 2005. BRENDAN SMIALOWSKI/AFP via Getty Images

The U.S. special inspector general for Afghanistan reconstruction, John Sopko, has the tough job of trying to find out how and why the Afghan government fell apart so quickly when U.S. forces left the country. But one thing is making his job even harder: the U.S. government classifying too much information. As Sopko told NPR, “There is a lot of information that was classified or withheld from the American people over the years … to protect the Afghan government from embarrassment.” This includes information that would shed light on the condition of the Afghan military leading up to the U.S. withdrawal—for instance, its casualty rates and measures of its efficacy. Such information, he said, should have been declassified. Yet it remains secret, even though the Afghan government it would have embarrassed no longer exists.

The special inspector general’s frustration is nothing new. Washington’s out-of-control classification system has long interfered with the public’s understanding of government actions and efforts to impose accountability for policies gone wrong. The Biden administration has the chance to break the pattern by issuing an executive order to overhaul the broken and bloated U.S. classification system. Such an order would materially improve the functioning of democracy at a time when policymakers are eager to strengthen accountability and the rule of law.

The problems with classification go back to the very inception of the system under then-U.S. President Franklin D. Roosevelt, who issued an executive order to safeguard information about military installations and equipment on the threshold of World War II. Since that time, government oversight bodies have regularly warned that the system is out of control, with far too much information being needlessly classified. Yet the problem has steadily grown worse.

The U.S. special inspector general for Afghanistan reconstruction, John Sopko, has the tough job of trying to find out how and why the Afghan government fell apart so quickly when U.S. forces left the country. But one thing is making his job even harder: the U.S. government classifying too much information. As Sopko told NPR, “There is a lot of information that was classified or withheld from the American people over the years … to protect the Afghan government from embarrassment.” This includes information that would shed light on the condition of the Afghan military leading up to the U.S. withdrawal—for instance, its casualty rates and measures of its efficacy. Such information, he said, should have been declassified. Yet it remains secret, even though the Afghan government it would have embarrassed no longer exists.

The special inspector general’s frustration is nothing new. Washington’s out-of-control classification system has long interfered with the public’s understanding of government actions and efforts to impose accountability for policies gone wrong. The Biden administration has the chance to break the pattern by issuing an executive order to overhaul the broken and bloated U.S. classification system. Such an order would materially improve the functioning of democracy at a time when policymakers are eager to strengthen accountability and the rule of law.

The problems with classification go back to the very inception of the system under then-U.S. President Franklin D. Roosevelt, who issued an executive order to safeguard information about military installations and equipment on the threshold of World War II. Since that time, government oversight bodies have regularly warned that the system is out of control, with far too much information being needlessly classified. Yet the problem has steadily grown worse.

Today, officials make tens of millions of decisions to classify information each year, thus limiting communication even within the government and prohibiting its disclosure to the public. Classification can span the full range of government activity, including economic and scientific matters as well as military and intelligence ones. In foreign policy, information provided by a foreign government with an (often unspoken) expectation of confidentiality is a common subject of classification, as is sensitive diplomatic commentary by U.S. State Department officials.

Former officials estimate that anywhere from 50 to 90 percent of classified information could be made public without harming national security. A case in point: In a cable sent in 2006, a U.S. diplomat classified a section that consisted entirely of an entirely innocuous description of a typical wedding in the Russian Republic of Dagestan. Similarly, the Defense Intelligence Agency classified portions of a biographical sketch of General Augusto Pinochet stating that Pinochet “drinks scotch and pisco sours; smokes cigarettes; likes parties. Sports interests are fencing, boxing and horseback riding.”

If the system continues on its current path, only a fraction of classified records generated today will ever be declassified.

The reason for this overclassification is simple: There is nothing to prevent it. Classification is governed by executive order, and the order gives designated officials (known as “original classification authorities”) nearly unfettered discretion to classify information. Their decisions are not reviewed by anyone, and there is no mechanism in place to enforce the few limits that the executive order does impose—such as a prohibition on classifying information to hide government misconduct.

Moreover, nearly 3 million people have access to classified information, and all of them are required to place special markings on such information when transmitting it (a practice known as “derivative classification”). For the recipient, however, it’s not always clear whether a given piece of information is classified or not. Agencies maintain classification guides that are supposed to help identify classified information, but these guides are sometimes vague and rarely user-friendly. Busy, risk-averse employees thus err on the side of caution and mark everything by rote—such as the descriptions of the Dagestani wedding and Pinochet’s hobbies. They know they will be called to account if they fail to protect information later deemed sensitive. No one has ever been penalized for wrongly classifying information.

The process of declassification is even more dysfunctional. Under the current executive order, issued by then-President Barack Obama in 2009, no information may remain classified indefinitely, and all information of permanent historical value must be “automatically” declassified after 25 years unless it falls within certain categories, such as the identity of human sources in foreign intelligence. In practice, however, declassification is anything but automatic. The 25-year mark simply launches a lengthy review process that sometimes involves multiple agencies. For example, a document mentioning that foreign intelligence surveillance had revealed connections between a CIA source and foreign officials might be referred to the National Security Agency, CIA, and State Department.

The explosion of digital data has compounded the delays that plague what is supposed to be automatic declassification. A government report found that one particular intelligence agency (which was not named in the report) generates 1 petabyte of classified information—the equivalent of 20 million old-fashioned, four-drawer filing cabinets—every 18 months. It would take 2 million full-time employees to review a year’s worth of a single intelligence agency’s classified output. Needless to say, if the system continues on its current path, only a fraction of classified records generated today will ever be declassified, contrary to the rules governing classification.

When information is wrongly classified or kept secret for too long, it results in a range of harms to U.S. democracy. Most obviously, the democratic process relies on an informed citizenry. Americans cannot shape government actions and policies, either through public debate or by contacting their elected representatives, if they don’t know about them. Excessive secrecy also undermines the rule of law by impeding accountability. When officials act behind closed doors, safe in the knowledge that their actions won’t be made public, they are more likely to stray outside the lines. And their choices are less likely to serve the public interest, as there is no mechanism for external stakeholders to weigh in.

We’ve seen these harms throughout U.S. history in both the domestic and foreign policy spheres. In the 1960s, as part of its COINTEL program, the FBI wiretapped Martin Luther King Jr.’s telephone. Information about this activity was classified as top secret, even though its sole purpose, in the FBI’s own words, was to gain information about King’s personal life that could be used to “completely discredit [him] as the leader of the Negro people.” The FBI thus used classification to shield its misconduct from public scrutiny, ensuring that it would not be held accountable and could continue to abuse its surveillance powers.

After 9/11, the Bush administration publicly justified the controversial detention of terrorist suspects at Guantánamo by asserting that the detainees were “the worst of the worst.” At the same time, it classified risk assessments of the detainees—including some assessments revealing that there was no recorded reason for the detainee’s transfer to Guantánamo. More recently, the Trump administration attempted to limit access to the transcript of Trump’s infamous phone call to the Ukrainian president by improperly storing it in a records system reserved for highly classified information.

The failure to declassify information in a timely manner also impedes our understanding of history. U.S. government documents from the 1950s regarding a Pentagon program to develop chemical and biological weapons during the Korean War remain classified today. The same holds for documents from 1961 discussing contingency plans for a possible confrontation with the Soviet Union over what was then West Berlin.

To fix this broken system, the United States needs an executive order that sets forth new rules. First, the order should establish a White House-led interagency committee tasked with more specifically identifying and limiting the types of information eligible to be classified. Original classification authorities must be able to exercise judgment, but the nearly unlimited discretion they have now has not served the system well.

In the past, such systemic changes have faced an uphill battle, not least because of a sense of complacency about the strength of U.S. democracy.

Second, it should be easier for agency employees to identify information that has been classified and harder for them to default to secrecy. The executive order should direct departments and agencies to overhaul their classification guides with an eye toward making them specific, clear, and user-friendly. It should prohibit penalizing employees who fail to mark information as classified when its status is ambiguous. And it should require agencies to develop audit systems designed to hold employees accountable for deliberate or persistent overclassification.

Third, in the short term, the executive order should empower the National Declassification Center as the single entity for declassifying records, without lengthy reviews by multiple agencies. Agencies would be responsible for maintaining current declassification guidance to assist the center in its work. The order should also establish a “drop dead” period—40 years would be reasonable—after which no record can be exempted from declassification without a personal request by the head of the agency and document-specific approval by the national security advisor.

In the longer term, both declassification and derivative classification should transition from a manual exercise to a partially or fully automated one. Toward the end of the Obama administration, the CIA partnered with the University of Texas to pilot a program that would use machine learning to identify sensitive content. The program showed great promise, but was abandoned due to lack of resources. Harnessing technology might be the best way to ensure accuracy in derivative classification decisions, and it is the only way declassification will keep up with classification. The Biden administration and the U.S. Congress should work together to invest in the development and implementation of the necessary technology.

For additional changes that would help transform the classification system, the Biden administration can look to Accountability 2021, a visionary project in which numerous civil society organizations mapped out recommendations for making the government more open and accountable.

In the past, such systemic changes have faced an uphill battle, not least because of a sense of complacency about the strength of U.S. democracy. But that complacency has been shattered. The administration and Congress alike are looking for ways to shore up the democracy’s guardrails, and they are considering a range of reforms that would enhance transparency and accountability. An executive order that puts in place sweeping reforms of the broken U.S. classification system would be a simple and extremely effective way to further that goal.

Elizabeth Goitein is a co-director of the Brennan Center for Justice’s liberty and national security program and a senior practitioner fellow at the University of Chicago’s Center for Effective Government. Twitter: @LizaGoitein

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