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38–190 2007

CLASSIFICATION OF 

NATIONAL SECURITY INFORMATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

INTELLIGENCE COMMUNITY 

MANAGEMENT 

OF THE

PERMANENT SELECT 

COMMITTEE 

ON INTELLIGENCE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

Hearing held in Washington, DC, July 12, 2007 

( 

Printed for the use of the Committee 

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(II) 

PERMANENT SELECT COMMITTEE ON INTELLIGENCE 

SILVESTRE REYES, Texas, Chairman 

ALCEE L. HASTINGS, Florida 

LEONARD L. BOSWELL, Iowa 

ROBERT E. (BUD) CRAMER, Alabama 

ANNA G. ESHOO, California 

RUSH D. HOLT, New Jersey 

C.A. DUTCH RUPPERSBERGER, Maryland 

JOHN F. TIERNEY, Massachusetts 

MIKE THOMPSON, California 

JANICE D. SCHAKOWSKY, Illinois 

JAMES R. LANGEVIN, Rhode Island 

PATRICK J. MURPHY, Pennsylvania 

PETER HOEKSTRA, Michigan 

TERRY EVERETT, Alabama 

ELTON GALLEGLY, California 

HEATHER WILSON, New Mexico 

MAC THORNBERRY, Texas 

JOHN M. MCHUGH, New York 

TODD TIAHRT, Kansas 

MIKE ROGERS, Michigan 

DARRELL E. ISSA, California 

NANCY PELOSI, California, Speaker, Ex Officio Member 

JOHN A. BOEHNER, Ohio, Minority Leader, Ex Officio Member 

MICHAEL DELANEY, Staff Director 

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(1) 

CLASSIFICATION OF NATIONAL SECURITY 

INFORMATION 

THURSDAY, JULY 12, 2007 

HOUSE OF REPRESENTATIVES, 

PERMANENT SELECT COMMITTEE ON INTELLIGENCE, 

SUBCOMMITTEE ON INTELLIGENCE COMMUNITY MANAGEMENT, 

Washington, DC. 

The subcommittee met, pursuant to call, at 1:03 p.m., in room 

2216, Rayburn House Office Building, the Hon. Anna G. Eshoo 

(chairwoman of the subcommittee) presiding. 

Present: Representatives Eshoo, Holt, and Issa. 

Chairwoman ESHOO. Good afternoon, everyone. My name is 

Anna Eshoo, and I have the privilege of chairing this small but we 

think important subcommittee on the management of the intelligence community. So I want to welcome everyone here today; and 

our distinguished witnesses that are here, they bring so much to 

the table; and we are very grateful to them for being willing to 

come and be instructive to us. 

I would like to begin by noting how rare it is for the Intelligence 

Committee and its subcommittees to hold an open hearing. So this 

is special. I hope that we do more of this. I think it is so important 

for the American people to have a sense of a committee that is so 

important in the life of our country and the protection of the citizens. 

So while most of our work absolutely has to be done in closed 

session to protect national security, I know we are going to strive 

to have more open hearings again so that the American people can 

see us working. 

The subject of today’s hearing I think is a rather timely one, but 

it is something that the members on both sides of the aisle of the 

subcommittee have an interest in, and that is the classification of 

national security information. 

Actually, when I first came onto the Intelligence Committee, the 

then chairman, our former House colleague, Porter Goss, had a real 

interest in this subject matter; and he spoke on it and raised the 

issue many, many times. 

One of the lessons of the attacks of September 11th was that our 

government did not effectively share information about the terrorists who were plotting the attacks against us. We all know that 

now. Information sharing was and in some ways remains a major 

weakness of our Nation’s national security apparatus. Overclassification, improper classification and the ability to share information 

across agencies, the excessive compartmenting of information, 

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these practices all contribute to a culture that says, ‘‘I can’t share 

with you. It is my information, not yours.’’ That hurts our country. 

Our Intelligence Community was established during the Cold 

War when compartmenting of information was deemed necessary to 

stop the Soviet espionage activity. We no longer face the Soviet 

bear. We have a newer, more limber challenge. We face a 

networked adversary that uses information to its strategic advantage and exposes the seams in our system to attack us. So we need 

to close those seams by reducing the barriers to information sharing; and although we must always protect our sources and methods, we have to balance this with the need to share. 

The 9/11 Commission, I think that people in this room are especially aware or keen on the point of their recommendation that the 

government must develop incentives for sharing to restore better 

balance between security and shared knowledge. Even today, information may be so highly compartmented that Members and senior 

policymakers may not have access to it. 

For example, the most recent Iraq National Intelligence Estimate, the Iraq NIE, was compartmentalized so that policymakers 

without those clearances were unable to read it, including many 

congressional staff. I have to tell you that comes as somewhat of 

a surprise and certainly worries me. 

Today’s hearing is going to focus on several issues: First, the consequences of and the proposals to reduce overclassification, and I 

think that we have given you some examples of overclassification; 

examine changes to the executive order governing classification 

over the past decade and the government’s compliance with it. 

There is the executive order. Then there is also compliance to make 

sure that it works. And, three, the potential changes to the executive order. 

The system for safeguarding classified national security information is governed by Executive Order 12958. That number didn’t 

have too much meaning to me until there was a debate that erupted just a handful of weeks ago, and now the number really represents something to me. 

Over the years, the executive order has been modified, shifting 

the balance between secrecy and openness. Our professional, superb witnesses today have been acute observers of these changes 

over the years; and they are, I think, going to be able to enlighten 

our committee on how the order has evolved. 

I think that this is an important hearing, one, because it is public, certainly because of the content, and also because as part of the 

Director of National Intelligence 100 Day Plan, the White House 

and the OBM are reviewing the DNI’s authorities with regard to 

the declassification process. So this is very timely. 

I wish that the DNI—I am disappointed, I should say, that the 

DNI declined to provide a witness today. I think that it would have 

enhanced the hearing, and perhaps in the not-too-distant future he 

will agree to and we can work with them as well. Because many 

of the issues that we are going to discuss today have important, obviously, implications for the Intelligence Community. Otherwise, 

we wouldn’t be here. I hope that Mr. Issa will join me in inviting 

the DNI to respond for the record. 

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So, with that, I look forward to the testimony, thank each one 

of the witnesses and the people that are here in the audience today 

and would like to recognize Mr. Issa for the remarks that he would 

like to make. I would just like to say that we are California colleagues; and I think that he is a that we have other opportunity. 

We have had many briefings by the DNI in classified settings; 

and I would note that I can remember one time in which the schedule that showed the DNI, the only witness, the timetable from 

eight until something, followed by a coffee break, followed by the 

actual renewal, was classified Top Secret. Now I happen to know 

that in full battle array with an entourage coming through the 

Crypt is how he entered. So I have no doubt that the level of secrecy was inappropriate on the agenda. 

Therefore, I want to join with you not only in listening to the 

work that we are going to—the presentations we are going to see 

today but in continuing to get to where information is most widely 

available to do the most good while protecting national secrets and, 

of course, people who risk their lives for our country. 

I very much enjoy working with you, and I can’t think of a more 

appropriate hearing to have in the light of day. We may even open 

the drapes here, because, in fact, declassification should not be a 

classified hearing. 

I yield back. 

Chairwoman ESHOO. Thank you very much, Mr. Issa. 

The witnesses’ full written statements are going to be entered 

into the record. Without objection, so ordered. 

I would like to recognize our witnesses now for their opening 

statements, and I am going to ask you to limit your opening statement to 5 minutes. I have a clock here. In some of the hearing 

rooms, we have green, yellow and red, but you are not going to be 

able to see that. So when you have like a minute left, I will just 

interrupt briefly and say you have a minute left to summarize. 

But the full statement, obviously, is in the record; and then, after 

you speak, we will begin our questioning. 

So why don’t we start with Ms. Fuchs. Thank you very much for 

being here. 

I would also like to welcome her daughters that are here and sitting in the front row. Zoe and McKenzie are here with their dad 

today to hear their mother testify. I hope this experience is going 

to remain with them for the rest of their lives. I never saw my 

mother testify in front of Congress. 

At any rate, Ms. Fuchs, thank you for being here and we look 

forward to your testimony. So why don’t you begin. 

STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, 

NATIONAL SECURITY ARCHIVE 

Ms. FUCHS. Thank you. 

Chairwoman Eshoo, Ranking Member Issa and members of the 

subcommittee, I am pleased to appear before you today. I am general counsel to the National Security Archive, a nongovernmental, 

nonprofit research institute. I have submitted written testimony, so 

I will limit my spoken comments today. 

Two weeks ago, the Central Intelligence Agency declassified a 

702-page file amassed in 1973 about the CIA’s illegal activities, the 

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so-called ‘‘family jewels’’. It was released pursuant to a FOIA request that my organization made 15 years ago. There was plenty 

of news coverage about the release, and I will not recount what 

was in the release, but I just wanted to touch on why the CIA 

should have to expose the skeletons in its closet. 

For one thing, the law requires it to be released. The Freedom 

of Information Act was passed in 1966, and President Lyndon 

Johnson when he signed it into law declared: A democracy works 

best when the people have all the information that the security of 

the Nation will permit. 

A central tenet of the FOIA is that in a democracy the people 

have the right to know what the government is doing, and Congress passed FOIA because the government bureaucracy was reluctant to have anyone scrutinize its work and was resistant to public 

requests for information. 

In this case, the CIA delayed the decision to release the record 

for 15 years. They should have released it within 20 business days. 

Why did they delay it? I mean, although I give them credit for releasing the file, they clearly were trying to do what all governments try to do and that is to control the information. 

It is possible the CIA made the release at this time to give the 

appearance of openness and accountability to an American public 

that, frankly, is suspicious of their activities today, is concerned 

about renditioning suspects to secret prisons and about illegal intelligence surveillance of U.S. citizens. 

In fact, no real negative consequence is going to reach the Agency as a result of this release of 30-year-old scandals. But the release does help the American public in another way. It helps us understand that there is a genuine risk in having an unrestrained intelligence agency. It shows that abuses have occurred in the past 

and they can occur if we don’t have accountability. 

Well, the secrecy situation today offers strong indicators that 

oversight is necessary now. Since 2001, there has been an explosion 

of secrecy. I have attached to my written testimony some charts illustrating the problem based on data compiled by the Information 

Security Oversight Office. Classification has multiplied, reaching 

an all-time high of 15.6 million classification decisions in 2004, 

nearly double the number that was in 2001. Last year, in 2005, the 

most recent year reported, it was at a level of 14.2 million classification actions. I understand today we will learn new numbers for 

2006. 

The cost of the program also has skyrocketed from an estimated 

$4.7 billion in 2002 to $7.7 billion in 2005. 

Given that we are at war, it is not surprising that there are more 

secrets and more is being spent to protect them. That is all reasonable. But officials throughout the government, including former 

Secretary of Defense Donald Rumsfeld, have admitted that there is 

tremendous overclassification. Those unnecessary secrets come at a 

cost to society. In addition to the suspicion and skepticism it generates in the general public, there is an increased likelihood of 

leaks when everything is secret. As such, overclassification devalues the entire security classification system. 

Further, as the chairwoman mentioned, we learned from all the 

inquiries into the September 11th attacks that an excess of secrecy 

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and compartmentalization of information led to poor intelligence 

analysis and left us vulnerable to attack. 

It is not just a matter of interagency information sharing. Excessive secrecy also locks the doors on the public and prevents the 

public from knowing information that could be used to protect their 

families, their communities and the security of the Nation. 

My research suggestion that unnecessary secrecy thrives when 

there is no incentives to limit secrecy. It allows politicians and bureaucrats to avoid embarrassment and accountability and to enforce unpopular or unthinkable measures. Information, quite simply, is power. 

My organization has long advocated efforts to increase the incentives on the other side of the secrecy equation in order to encourage 

openness and discourage unnecessary secrecy. I am going to quickly mention some of our suggestions, which are detailed in my written testimony. 

Today, all power for creating and holding secrets rests with a 

small group of executive branch agencies. One solution to the problems that arise as a result of that is to disperse the power, particularly with respect to historic materials where the passage of time 

and of events has made the information less sensitive. 

I describe some proposals in my written testimony for changing 

the dynamic, including a declassification center, the national declassification initiative that has started at the National Archives, 

and statutory independent review boards at every agency with classification authority. 

Briefly, I would like to touch on the executive order on classification. There are some changes in the executive order that could lead 

to less unnecessary classification. In particular, the order should 

emphasize limited classification, limited duration to classification 

and a presumption against classification. It should strictly limit reclassification and should employ a cost-benefit analysis to any such 

effort. 

It should also remove the veto authority provided to the DCI and 

now the DNI over decisions of the Interagency Security Classification Appeals Panel. Emphasis should be put on periodic independent audits of classification decisions, procedures for challenging classification decisions, and adequate current classification 

guides that include an explanation of a specific harm or threat that 

justifies the classification. 

Just one more comment. 

It does not help the system when the classification system and 

its oversight entity are disregarded or ignored, as was the case in 

the recent reclassification of records last year at the National Archives and also in the case of the Vice President’s office refusing 

to report its classification activity. Scandals like those merit an immediate response from Congress as a check against misconduct and 

overreaching. 

I am hopeful my testimony has been helpful, and I would be 

happy to respond to any questions. Thank you. 

Chairwoman ESHOO. Thank you very much. We appreciate your 

testimony, and we are going to have questions for you. 

[The statement of Ms. Fuchs follows:] 

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STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, NATIONAL SECURITY ARCHIVE

Chairwoman Eshoo, Ranking Member Issa and Members of the Subcommittee on 

Intelligence Community Management, I am pleased to appear before you to discuss 

the issue of classification and declassification of national security information. 

I am General Counsel to the National Security Archive (the ‘‘Archive’’), a non-governmental, non-profit research institute. The Archive is one of the most active and 

successful non-profit users of the Freedom of Information Act (FOIA) and the Mandatory Declassification Review (MDR) system. We have published more than half a 

million pages of released government records, and our staff and fellows have published more than 40 books on matters of foreign, military, and intelligence policy. 

In 1999, we won the prestigious George Polk journalism award for ‘‘piercing selfserving veils of government secrecy’’ and, in 2005, an Emmy award for outstanding 

news research. 

SKELETONS IN THE CLOSETS

Two weeks ago the Central Intelligence Agency (CIA) declassified a 702-page file 

amassed in 1973 at the order of then-CIA director James Schlesinger about the 

CIA’s illegal activities—the so-called ‘‘family jewels.’’ It was released pursuant to a 

FOIA request filed 15 years ago by my organization. There was plenty of news coverage about the release. I won’t take time today to recount the details of illegal 

wiretapping, domestic surveillance, assassination plots, and human experimentation 

acknowledged in the file. The CIA deserves credit for actually reviewing and releasing portions of these records as the FOIA obliges it to do; the Agency is not always 

so diligent in fulfilling its FOIA obligations. Instead I want to focus on a broader 

issue about why it is important for records about our government’s misdeeds and 

mistakes to be made available to the public. 

For one thing, the law requires the release. When Congress passed the FOIA in 

1966 and President Lyndon Johnson reluctantly signed it into law, the President declared that: ‘‘A democracy works best when the people have all the information that 

the security of the nation will permit.’’ Under the FOIA, agencies are supposed to 

respond to a request for documents within 20 business days. Yet it took some bad 

publicity about FOIA delays up to 20 years, some pressure from Congress in the 

form of the OPEN Government Act of 2007—which awaits a Senate vote—and a 

presidential executive order (E.O. 13392) directing agencies to handle backlogs for 

this request to finally reach the front of the queue. A central tenet of the FOIA is 

that in a democracy, the people have a right to know what their government is 

doing. Congress passed FOIA because the government bureaucracy, reluctant to 

have anyone scrutinizing its work, was resistant to public requests for information. 

The law is tool for individuals to demand records of agency activities so that those 

agencies will be more accountable and make better decisions in the future. 

The second reason it is important for agencies to release records like the ‘‘family 

jewels’’ is that in a mature democracy such as ours, opening up to scrutiny vital 

parts of our country’s recent history builds trust in government institutions and reaffirms their legitimacy. For an agency like the CIA, subject to attack concerning 

activities such as transporting detainees to secret prisons around the world, the release of the ‘‘family jewels’’ seems to be an attempt to draw a clear line between 

the past and the present. The acknowledgment of wrongdoing is like an act of atonement and suggests the intent to reform bad practices. The message to the public 

is that the Agency is not unaccountable. 

A third reason the release is important is it allows people to understand what has 

happened in the past and reminds people that abuses can occur if there is no oversight. A functioning democracy needs an informed citizenry armed with the tools 

and knowledge to play their role in the political system. Finally, the ‘‘family jewels’’

helps us better understand the thinking of many current government officials who 

first served in government policy positions in the 1970s, including those who were 

not happy about the congressional reforms enacted in the 1970s and the weakening 

of executive branch power. 

THE EXPLOSION OF SECRECY

I would like to return to President Johnson’s statement when he signed the FOIA. 

He did not promise complete openness, but only such openness as the security of 

the nation permits. We all know secrecy is necessary to avoid providing our enemies 

with means to harm us, to enable us to forcefully negotiate with foreign governments, and to ensure that the sources and methods of intelligence gathering are protected. The protection of these sorts of secrets is primarily governed by Executive 

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1 ISOO, 2004 Report to the President at 3 (2005), http://www.archives.gov/isoo/reports/2004-annual-report.pdf; ISOO, 2005 Report to the President at 2 (2006), http://www.archives.gov/isoo/ 

reports/2005-annual-report.pdf. 2 ISOO, 2005 Report on Cost Estimates for Security Classification Activities for 2005 at 3 

(2006), http://www.archives.gov/isoo/reports/2005-cost-report.pdf; ISOO, 2001 Report to the President at 9 (2002), http://www.archives.gov/isoo/reports/2001-annual-report.pdf. 3Donald Rumsfeld, War of the Worlds, Wall St. J., July 18, 2005, at A12. 

4Subcommittee on National Security, Emerging Threats and International Relations of the 

House Committee on Gov’t Reform Hearing,108th Cong. (2004) (testimony of Carol A. Haave), 

http://www.fas.org/sgp/congress/2004/082404transcript.pdf; See id., (Testimony of J. William 

Leonard, Director of ISOO) (‘‘It is my view that the government classifies too much information.’’). 5 9/11 Commission Hearing, (Testimony of then Chair of the House Permanent Select Committee on Intelligence Porter Goss) (2003), http://www.9-11commission.gov/archive/hearing2/9- 

11CommissionlHearingl2003-05-22.htm#panel—two. 6 Emerging Threats: Overclassification and Pseudo-classification: Hearing Before the 

Subcomm. on Nat’l Sec., Emerging Threats, and Int’l Relations of the H. Comm. on Gov’t Reform, 109th Cong. (2005) (statement of J. William Leonard, Director, ISOO, Nat’l Archives and 

Records Admin.), http://reform.house.gov/UploadedFiles/ISOO Leonard testimony final 3-2-05 

hearing.pdf. 

Order 12958, as amended, and a series of provisions in statutes governing the intelligence community. 

The available statistics show that there has been a dramatic upsurge in this sort 

of government secrecy since the September 11 attacks on the United States. Classification has multiplied, reaching an all-time high of 15.6 million classification actions in 2004, nearly double the number in 2001, and was at a level of 14.2 million 

classification actions in 2005.1 Moreover, the cost of the program has skyrocketed 

from an estimated $4.7 billion in 2002 to $7.7 billion in 2005.2 At the same time, 

declassification activity shrank from a high of 204.1 million pages declassified in 

1997, down to 29.5 million pages declassified in 2005. 

Officials from throughout the military and intelligence sectors have admitted that 

much of this classification is unnecessary. Secretary of Defense Donald Rumsfeld acknowledged the problem in a 2005 Wall Street Journal op-ed: ‘‘I have long believed 

that too much material is classified across the federal government as a general rule 

....’’ 3 The extent of over-classification is significant. Under repeated questioning 

from members of Congress at a hearing concerning over-classification, Deputy Secretary of Defense for Counterintelligence and Security Carol A. Haave, eventually 

conceded that approximately 50 percent of classification decisions are over-classifications.4 These opinions echoed that of Porter Goss, then Chair of the House Permanent Select Committee on Intelligence, and later Director of Central Intelligence, 

who told the 9/11 Commission, ‘‘we overclassify very badly. There’s a lot of gratuitous classification going on, and there are a variety of reasons for them.’’ 5

There are many reasons for the increased numbers of secrets and the increase in 

costs associated with the national security classification program. We are at war 

and are highly conscious of the need to prevent terrorist attacks. Yet, what about 

the unnecessary secrets that clog up the security classification system without offering any additional security? Those unnecessary secrets come at a greater price than 

the money it costs to protect them. 

The Director of the Information Security Oversight Office (ISOO), the governmental agency responsible to the President for policy oversight of the governmentwide security classification system and the National Industrial Security Program, 

who is testifying today, has called secrecy a ‘‘double edged sword.’’ 6 While classification serves the purpose of keeping information out of the hands of the enemy, it also 

sometimes keeps it out of the hands of friends or allies who could use it to protect 

us. Too much secrecy conceals our vulnerabilities until it is too late to correct them. 

Indeed, all of the inquiries concerning the September 11 attacks on the United 

States found that better information dissemination would have made us safer. It is 

not only government agencies who must share information with each other, but 

agencies must learn to share information with the public. As Eleanor Hill, Staff Director of the Joint House-Senate Intelligence Committee Investigation into September 11 Attacks, explained in a Staff Statement summarizing the testimony and 

evidence: 

[T]he record suggests that, prior to September 11th, the U.S. intelligence 

and law enforcement communities were fighting a war against terrorism 

largely without the benefit of what some would call their most potent weapon in that effort: an alert and committed American public. One needs look 

no further for proof of the latter point than the heroics of the passengers 

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7 Intelligence Community’s Response to Past Terrorist Attacks Against the United States from 

February 1993 to September 2001: Hearing Before the J. H./S. Intelligence Comm., 107th Cong. 

(2002) (Joint Inquiry Staff Statement, Eleanor Hill, Staff Dir.), http://intelligence.senate.gov/ 

0210hrg/021008/hill.pdf. 8See, e.g., Nat’l Acad. of Sciences, Seeking Security: Pathogens, Open Access, and Genome 

Databases 54–57 (2004), http://www.nap.edu/books/0309093058/html/52.html. 9 New York Times Co., 403 U.S. at 729 (Stewart, J., concurring). 10 Erwin N. Griswold, Secrets Not Worth Keeping: The courts and classified information, Wash. 

Post, Feb. 15, 1989, at A25. 

on Flight 93 or the quick action of the flight attendant who identified shoe 

bomber Richard Reid.7

There are other costs to keeping the public in the dark. Dissemination of information has always been critical for advancing technological and scientific progress. 

When considering the option of making the genome databases secret, even though 

the data could be used to engineer pathogens for use as biological weapons, the National Academy of Sciences concluded: 

[A]ny policy stringent enough to reduce the chance that a malefactor would 

access data would probably also impede legitimate scientists in using the 

data and would therefore slow discovery . . . . It is possible that the harm 

done during a process of negotiating such an agreement—through building 

walls of mistrust between peoples—would be greater than the benefit 

gained through the sense of security that such a regime might provide. Finally, such a restrictive regime, the committee believes, could seriously 

damage the vitality of the life sciences . . . There is some concern that restricting access to this information might lead to a situation in which the 

mainstream scientific community is unaware of dangers that may threaten 

us.’’ 8

Moreover, overclassification and unneeded secrecy also undermine the effort to 

keep truly sensitive information secret, ‘‘[f]or when everything is classified, then 

nothing is classified, and the system becomes one to be disregarded by the cynical 

or careless, and to be manipulated by those intent on self-protection or self-promotion.’’ 9

If secrecy comes with so many costs, why is there so much unnecessary secrecy? 

Secrecy can be used as a tool by the government in many ways. When claims of 

national security secrecy are plausible, secrecy often allows the government to enforce policies that otherwise would be unthinkable. Often, the claim of secrecy ends 

any public inquiry into allegations of misconduct, as well as any governmental liability. We see this today in the context of the warrantless wiretapping program initiated after September 11, 2001. To date there has been minimal success challenging the program despite confirmation of the program and signs of official concern about the illegality of the program. 

Perhaps an even stronger motivation is that by controlling information through 

classification and selective declassification, the government also has the ability to 

control public opinion and avoid embarrassment. As former Solicitor General of the 

United States Erwin Griswold, who led the government’s fight for secrecy in the 

Pentagon Papers case, acknowledged: 

It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and 

that the principal concern of the classifiers is not with national security, 

but with governmental embarrassment of one sort or another. There may 

be some basis for short-term classification while plans are being made, or 

negotiations are going on, but apart from details of weapons systems, there 

is very rarely any real risk to current national security from the publication 

of facts relating to transactions in the past, even the fairly recent past.10

CONTROLLING EXCESSIVE SECRECY

Today, all power for creating and holding secrets rests with a small group of executive branch agencies. While there is no doubt that the individual agency-centered 

approach allows for agencies to exercise independent judgment, the unilateral nature of the decision-making allows excessive secrecy to permeate individual agencies 

unchecked. When that happens, all of the worst features of turf consciousness and 

bureaucratic inertia come into play. 

One solution is to disperse the power, particularly with respect to historic materials where the passage of time and events has made it less necessary for one agency to jealously control all information. The Moynihan Commission, for example, recccoleman on PROD1PC77 with HEARING

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11 Report of the Commission on Protecting and Reducing Government Secrecy, S. Doc. No. 

105–2 (1997), at Ch. 3. 12See http:/www.archives.gov/declassification/challenges.pdf. 

ommended setting up a formal Declassification Center based at the National Archives and Records Administration (NARA) and staffed by an interagency group 

with delegated powers from their agencies.11 The National Declassification Initiative 

(NDI) that emerged last year, only after my organization, working with historian 

Matthew Aid, exposed the unilateral reclassification by agencies of historical materials that had been publicly available for years, goes part of the way to making this 

idea a reality. The NDI is sponsored by NARA. By harnessing the combined resources and expertise of many different agencies, the NDI could speed access to insightful historical documents for researchers and the general public. However, the 

NDI’s underlying innovation—the establishment of a comprehensive, interdepartmental declassification review capability for the federal government—could prove to 

be a serious flaw. The concentration of declassification activities in one location presents the risk that official declassification will fall prey to an unhealthy consensus, 

built upon the worst disclosure fears of individual agencies rather than principles 

of increased transparency and public access. As NARA itself has noted, ‘‘the biggest 

impediments to the NDI are culture, attitude, and resistance to change’’ on the part 

of participating Executive Branch agencies.12

One method of countering this tendency towards group think would be to establish a non-partisan, non-governmental board of private citizens to represent the interests of professional researchers, historians, and the general public in the declassification process of the NDI. Such a board could serve as a conduit for public input 

and oversight. There are models for such a board, including those authorized by 

Congress in the President John F. Kennedy Assassination Records Collection Act of 

1992 and the Nazi War Crimes Disclosure Act. Another model would be the establishment of a statutory independent review board at every agency with classification 

authority. The State Department’s Advisory Committee on Historical Diplomatic 

Documentation offers an example of how such a board can be successful in pushing 

out of the system the secrets that do not need keeping. 

The NDI and statutory independent review boards are well suited to breaking 

down the excessive control that agencies have exerted over historical records. Yet, 

historical records will still clog up the system because they are subject to the same 

type of review as current records. To illustrate the problem, consider the myth of 

automatic declassification. As of January 1 of this year, over 1 billion pages of 

records had been declassified under the provisions of Executive Order 12958, as 

amended. Yet, none of us can stroll into the National Archives and get to see those 

records. All the newly declassified records still must be processed by NARA before 

they will be made available to the public at NARA research facilities. Each of those 

records essentially has to go through standard FOIA review before it can be released 

for the public. That is the same review that in some cases has held records for up 

to 20 years after a FOIA request is made. A historical records review act that would 

alter the standard for review and withholding of records older than 25 years could 

end the bottleneck. Like the Nazi War Crimes Disclosure Act and the John F. Kennedy Assassination Records Review Act, which altered the standards for review and 

withholding of records older than 25 years. 

Chairwoman ESHOO. Next, I would like to welcome Steven 

Aftergood, Director of the Project on Government Secrecy at the 

Federation of American Scientists. 

Welcome. You have 5 minutes for your testimony. 

STATEMENT OF STEVEN AFTERGOOD, DIRECTOR, PROJECT 

ON GOVERNMENT SECRECY, FEDERATION OF AMERICAN 

SCIENTISTS 

Mr. AFTERGOOD. Thank you, Madam Chairwoman, Ranking 

Member Issa. Thank you for holding this hearing. 

Some people might think that classification is basically a matter 

of housekeeping of no great significance, but actually, as you know, 

it is tremendously significant. It defines the boundaries of what the 

public is permitted to know, what government officials are perccoleman on PROD1PC77 with HEARING

10 

mitted to say in public, and it determines how well our deliberative 

system is able to function. 

Judging from your opening remarks, the two of you, it is clear 

that there is a consensus that the system is not working as it was 

intended. It is not working as well as it should. What is less clear 

is what to do about that. 

In my written testimony, I have presented a short menu of specific steps that could be taken; and for now I would like to mention 

just two of them. My hope is that one or more of them might appeal to you and that you and the subcommittee might pursue them 

further. 

The first is the notion of a declassification database. Right now 

when a document is declassified, it is a lot like a tree that falls in 

the forest with no one around. No one has any idea that the document has been declassified, much less that it might be available to 

them. 

So, therefore, it seems sensible to establish an agency-by-agency 

database which gives some indication that a document or a set of 

documents has been processed for declassification and is available. 

In fact, such a database was mandated by Executive Order 12958 

in 1995. Unfortunately, that provision was modified in 2003, and 

the requirement to create a government-wide database was eliminated. So was the requirement to make such a database publicly 

available. So we have, unfortunately, stepped back from what 

would have been a very useful step to take full advantage of the 

declassification that we are already doing. 

It is interesting to me to note that, of all agencies, it seems to 

be the CIA that has made the most progress in developing a declassification database. It has created something called CREST, which 

is the CIA Records Search Tool, which is actually a database of 

many millions of documents that have been declassified. Not only 

that, it is publicly available but only in one particular room at the 

National Archives in College Park. 

The CIA has inexplicably, in my mind, refused to make the database available online or even to release its contents to others who 

would themselves put it online. So I think that might be something 

worth the subcommittee’s attention. If that could be turned into a 

public resource, that would immediately multiply the utility of current declassification programs. 

A quick second proposal or notion, and that is the concept of the 

tear-line format in creating classified documents. A tear line refers 

to the idea that when you create a classified record, you physically 

segregate the content of the document by classification level so 

that, in principle, you could tear off the unclassified portion and 

give it to somebody. 

This is not a new idea. It has been around for a while. In fact, 

Congress endorsed the tear-line format proposal in the 2004 Intelligence Reform Bill; and it instructed the administration to prepare 

guidelines for implementing tear lines so that we could improve information sharing. 

Now those guidelines were never issued, and that might be something the subcommittee wants to look into. Why was a direction 

that you gave two and a half years ago never acted upon? I mean, 

I can’t help but think when you mentioned that the DNI refused 

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11 

1 Report of the Commission on Protecting and Reducing Government Secrecy, 1997, page xxi, 

available at http://www.fas.org/sgp/library/moynihan/index.html. 2 Hearing before the National Commission on Terrorist Attacks, May 22, 2003, available at 

http://www.fas.org/irp/congress/2003lhr/911Com20030522.html. 

to send a representative, whether the ODNI is somehow showing 

inadequate respect for Congress and whether that is not something 

else to look into. 

I will leave it there for now. Thank you very much for holding 

the hearing. 

Chairwoman ESHOO. Thank you for your excellent testimony. 

[The statement of Mr. Aftergood follows:] 

STATEMENT OF STEVEN AFTERGOOD, FEDERATION OF AMERICAN SCIENTISTS

Thank you for the opportunity to address the Subcommittee. 

My name is Steven Aftergood and I direct the Project on Government Secrecy at 

the Federation of American Scientists, which seeks to enhance public access to government information and to limit national security classification to its necessary 

minimum. 

INTRODUCTION

It has been ten years since the congressionally-mandated Commission on Protecting and Reducing Government Secrecy issued its critique of national security 

classification policy and called for ‘‘a new way of thinking about government secrecy.’’

The Commission, chaired by Sen. Daniel P. Moynihan and co-chaired by former 

HPSCI chairman Rep. Larry Combest, concluded that: 

The classification system . . . is used too often to deny the public an understanding of the policymaking process, rather than for the necessary protection of intelligence activities and other highly sensitive matters. The 

classification [system is] no longer trusted by many inside and outside the 

Government.1

The Commission produced a fine report, but its work led to no discernable improvement in policy. In 2003, another HPSCI chairman, Rep. Porter J. Goss, testified before the 9/11 Commission that ‘‘we overclassify very badly. There’s a lot of 

gratuitous classification going on . . .’’ 2

The adverse consequences of overclassification are clear enough. Unnecessary or 

inappropriate classification degrades the performance of government agencies, impedes oversight, and fosters public suspicion and contempt. Yet the classification 

system has proved to be stubbornly resistant to reform or correction. 

In this statement, I would like to propose several specific steps that could be 

taken to improve classification and declassification policy. While these steps would 

not fully resolve all concerns about the proper exercise of classification authority, 

each of them has the virtue of being achievable in the near term. And individually 

or collectively, they would make a real difference. 

1. Establish a declassification database 

If a database of declassified documents could be established and made publicly accessible, then the positive impact of declassification would be multiplied many times 

over. 

Such a database was explicitly required in 1995 by Executive Order 12958, section 

3.8, which stated: 

The Archivist in conjunction with the Director of the Information Security 

Oversight Office and those agencies that originate classified information, 

shall establish a Government-wide database of information that has been 

declassified . . . . Except as otherwise authorized and warranted by law, 

all declassified information contained within the database . . . shall be 

available to the public. 

Unfortunately, this objective was abandoned in the 2003 amendments to Executive Order 12958. The amended order eliminated the requirement to establish a 

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12 

3See Executive Order 12958, as amended (EO 13292), at section 3.7. The amended order only 

says vaguely that agencies ‘‘shall coordinate the linkage and effective utilization of existing 

agency databases.’’ All of the additions and deletions that were made in the 2003 amendments 

to the executive order can be seen in this markup: http://www.fas.org/sgp/bush/ 

eo13292inout.html. 4 Intelligence Reform and Terrorism Prevention Act of 2004, section 1016(d)(1). 

Government-wide database and also deleted the requirement that declassified information in any existing databases be made available to the public.3

Without some form of public database to serve as a universal finding aid, it seems 

unlikely that most declassified documents will ever be located by the particular 

readers who would be most interested in them. 

Interestingly, it is the Central Intelligence Agency that has made the most 

progress in this direction. Its CREST database (CREST stands for CIA Records 

Search Tool) provides a searchable index of millions of declassified Agency records. 

And it is publicly available—but only in Room 3000 of National Archives II in College Park, MD. 

Inexplicably, CIA has refused to make CREST publicly available online or even 

to release the database to others who would do so at their own expense. Outside 

of Room 3000 at the Archives at College Park, the CREST database might as well 

not exist. 

I suggest that this Committee ask intelligence community agencies to establish 

public databases of their declassified documents. I further suggest that the Committee instruct the CIA to permit online access to its existing CREST database. 

2. Adopt a ‘‘tear line’’ format in at least one agency 

One way to combat the effects of overclassification is to require that official 

records be written in such a way that their contents are physically segregable by 

classification level and that unclassified information in the document can be readily 

separated from any classified information. This is commonly known as a ‘‘tear line’’ format, referring to the possibility of ‘‘tearing off’’ a portion of the document, literally or figuratively, so that it can be widely disseminated. 

Congress has already endorsed the tear line approach. In the Intelligence Reform 

and Terrorism Prevention Act of 2004, Congress mandated that: 

the President shall . . . issue guidelines . . . to ensure that information is 

provided in its most shareable form, such as by using tearlines to separate 

out data from the sources and methods by which the data are obtained; 4

Several years later, however, no such guidelines have been issued. 

Under the circumstances, it might be productive to undertake a more focused and 

limited approach. A ‘‘pilot project’’ applied to one government agency or organization 

could demonstrate the utility and feasibility of tear lines without engendering widespread bureaucratic opposition. 

For example, this Committee could ask the National Intelligence Council to adopt 

the tear line format in all of the National Intelligence Estimates that it prepares 

in the next twelve months. Since NIEs are intended for distribution outside of the 

intelligence community, these seem like a logical category of intelligence records 

with which to begin applying the tear line approach. 

Even if an entire document must remain classified for a time and cannot be publicly disclosed, a tear line approach that isolates compartmented information from 

collateral classified information would still facilitate distribution throughout government, including Congress. It would also expedite the ultimate declassification of the 

document. 

3. Add classification oversight to the functions of agency Inspectors General 

In order to augment existing oversight of classification and declassification activities performed by the Information Security Oversight Office, agency Inspectors General should be tasked to perform their own periodic reviews of classification and declassification. 

Given the general consensus that classification is very expensive, both financially 

and operationally, agency heads may well concur that increased oversight of classification practices is appropriate and may be expected to endorse increased IG attention to this area. 

Inspectors General with cleared staff are already in place at the relevant agencies 

and could readily undertake such oversight. Indeed, some of them, like the DoD Inspector General, already perform some classification oversight on an ad hoc basis. 

This Committee should therefore ask each of the intelligence community inspectors general to add a periodic review of classification and declassification activities 

to its portfolio of regular auditing functions. 

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5Preparing for the 21st Century: An Appraisal of U.S. Intelligence, available online at http:// 

www.fas.org/irp/offdocs/report.html, Recommendation 14–2, March 1996. 6Final Report of the National Commission on Terrorist Attacks Upon the United States, page 

416. 

4. Declassify the annual intelligence budget 

There is no single declassification action that would signal an end to obsolete classification practices as clearly and powerfully as declassification of the total annual 

intelligence budget. 

That was the bipartisan conclusion of the Aspin-Brown-Rudman Commission in 

1996.5 It was also the unanimous recommendation of the 9/11 Commission in 2004.6

But it has elicited fierce opposition from those who are attached to the status quo. 

Paradoxically, the persistent opposition to intelligence budget disclosure has elevated the issue to one of outstanding significance, thereby making its potential declassification even more powerful. 

The notion that that annual disclosure of the total intelligence budget could damage national security, a view that the present Administration appears to hold, has 

been decisively refuted. The budget total was formally declassified in 1997 and 1998 

without adverse effect. Nor did release of the budget in those years lead to uncontrolled disclosure of more sensitive information. In other words, the hypothetical 

‘‘slippery slope’’ feared by proponents of continued budget secrecy did not materialize. 

In fact, intelligence budget classification is a relic of times gone by that has nothing to do with protecting current national security interests. 

Declassification of the intelligence budget will help to set an enlightened new 

standard for classification policy by demonstrating that even the most entrenched 

secrecy practices are subject to reconsideration and will be rejected when they no 

longer make sense. 

Although this Committee has already completed its markup of the 2008 Intelligence Authorization Act without addressing intelligence budget disclosure, the 

Senate version of the bill does include a provision for requiring such disclosure (section 107 of S. 1538). Committee members may therefore encounter this provision in 

a future House-Senate conference. 

If so, I would urge you to seize the opportunity to achieve a final resolution of 

this longstanding controversy, and a new beginning for intelligence classification 

policy by endorsing declassification of the intelligence budget. 

Thank you for considering my views on these important issues. 

Chairwoman ESHOO. Last, but not least, Mr. Bill Leonard, who 

is the Director of the Information Security Oversight Office. Many 

members of the committee commonly refer to it as the National Archives and Records Administration, NARA. 

Welcome. Thank you for your wonderful service to our country. 

Very distinguished career dating back before you arrived at the National Archives and Records Administration. So welcome. We look 

forward to your testimony. 

STATEMENT OF J. WILLIAM LEONARD, DIRECTOR, 

INFORMATION SECURITY OVERSIGHT OFFICE 

Mr. LEONARD. A career of probably more years than I want to 

admit. 

Madam Chair, Mr. Issa, I want to thank you very much for holding this hearing on issues relating to the classification of national 

security information within the Intelligence Community as well as 

for inviting me to testify today. 

In the invitation to testify, you requested I address a number of 

issues, to include changes to the executive order over the past decade. In March, 2003, the President signed an order further amending Executive Order 12958. The principal purpose of the amendment was to provide agencies an additional 31⁄2 years to address 

the remaining backlog of unreviewed 25-year-old classified records 

of permanent historical value prior to the onset of automatic deccoleman on PROD1PC77 with HEARING

14 

classification, a concept I explain in detail in my formal written 

statement. I also provide in that statement a synopsis of the other 

changes that time does not permit me to go into at this time. 

However, what is most notable about the 2003 amendment is 

what did not change. The revision left the existing classification 

and declassification regime largely intact. It had an exceedingly 

limited impact on the way in which government officials classified 

or declassified information. For all practical purposes, it institutionalized automatic declassification as an essential element of the 

classification process. 

I also outline in my formal statement the second issue you requested me to address, specifically, an assessment of agency compliance with the order. In fiscal year 2006, my office conducted a 

total of 15 on-site reviews of executive branch agencies. Of the general program reviews we conducted, we found that few of the agencies visited had adequately implemented the core elements of the 

classified National Security Information Program. Shortcomings 

were observed at multiple agencies in their implementing regulations, self-inspection programs, document markings and refresher 

security education and training. 

I should further note, however, that, as a general rule, Intelligence Community agencies tend to have the most sound information security programs within the executive branch. 

Last year, last fiscal year, we concentrated much of our compliance reviews on the appropriateness of classification decisions; and, 

based upon a sample of over 2,000 documents reviewed, we identified many to be questionable. 

Which brings me to the third issue you requested me to address, 

the impacts of overclassification. The ability and authority to classify national security information is a critical tool at the disposal 

of the government and its leaders to protect our Nation and its citizens. In this time of constant and unique challenges to our national 

security, it is the duty of all of us engaged in public service to do 

everything possible to enhance the effectiveness of this tool. 

To be effective, the classification process is a tool that must be 

wielded with precision. In an audit of agency classification activities conducted by my office over a year ago, we discovered that 

even trained classifiers with ready access to the latest classification 

and declassification guides and trained in their use got it clearly 

right only 64 percent of the time in making determinations as to 

the appropriateness of classification. 

This is emblematic of the daily challenges confronting agencies 

when ensuring that the 3 million plus cleared individuals with at 

least a theoretical ability to derivatively classify information get it 

right each and every time. Too much classification unnecessarily 

obstructs effective information sharing and impedes an informed 

citizenry, the hallmark of our democratic form of government. 

You also requested I address the effectiveness of current declassification efforts. After several deadline extensions, automatic declassification finally became effective on December 31st, 2006, with 

a few notable authorized delays. While a detailed analysis of the 

final results is still under way, it appears that all executive branch 

agencies have succeeded in meeting their initial obligations under 

the automatic declassifications provisions of the order. 

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As significant as the initial development of the concept of automatic declassification was, its actual implementation after so many 

false starts and delays is even more of an accomplishment. It reflects well on the diligence and efforts of the public servants who 

accomplished this milestone through hard work and perseverance, 

as well the agencies that committed the requisite resource. However, significant challenges remain; and I have outlined them in my 

formal written statement. 

Finally, you asked that I address the effect of selective classification and declassification in my formal statement. I provide a synopsis of the policy. 

Again, thank you for inviting me here today, Madam Chair. I am 

happy to answer any and all questions. 

Chairwoman ESHOO. Thank you very much. 

[The statement of Mr. Leonard follows:] 

STATEMENT OF J. WILLIAM LEONARD, DIRECTOR, INFORMATION SECURITY OVERSIGHT

OFFICE

Chairwoman Eshoo, Mr. Issa, and members of the subcommittee, I wish to thank 

you for holding this hearing on issues relating to classification of national security 

information within the Intelligence Community as well as for inviting me to testify 

today. 

BACKGROUND

By section 5.2 of Executive Order 12958, as amended, ‘‘Classified National Security Information’’ (the Order), the President established the organization I direct, 

the Information Security Oversight Office, often called ‘‘ISOO.’’ We are within the 

National Archives and Records Administration and by law and Executive order (44 

U.S.C. 2102 and sec. 5.2(b) of E.O. 12958) are directed by the Archivist of the 

United States, who appoints the Director of ISOO, subject to the approval of the 

President. We also receive policy guidance from the Assistant to the President for 

National Security Affairs. Under the Order and applicable Presidential guidance, 

ISOO has substantial responsibilities with respect to the classification, safeguarding, and declassification of information by agencies within the executive 

branch. Included is the responsibility to develop and promulgate directives implementing the Order. We have done this through ISOO Directive No. 1 (32 CFR Part 

2001) (the Directive). 

The classification system and its ability to restrict the dissemination of information the unauthorized disclosure of which could result in harm to our nation and 

its citizens represents a fundamental tool at the Government’s disposal to provide 

for the ‘‘common defense.’’ The ability to surprise and deceive the enemy can spell 

the difference between success and failure on the battlefield. Similarly, it is nearly 

impossible for our intelligence services to recruit human sources who often risk their 

lives aiding our country or to obtain assistance from other countries’ intelligence 

services, unless such sources can be assured complete and total confidentiality. Likewise, certain intelligence methods can work only if the adversary is unaware of their 

existence. Finally, the successful discourse between nations often depends upon confidentiality and plausible deniability as the only way to balance competing and divergent national interests. 

It is the Order that sets forth the basic framework and legal authority by which 

executive branch agencies may classify national security information. Pursuant to 

his constitutional authority, and through the Order, the President has authorized 

a limited number of officials to apply classification to certain national security related information. In delegating classification authority the President has established clear parameters for its use and certain burdens that must be satisfied. 

Specifically, every act of classifying information must be traceable back to its origin as an explicit decision by a responsible official who has been expressly delegated 

original classification authority. In addition, the original classification authority 

must be able to identify or describe the damage to national security that could reasonably be expected if the information was subject to unauthorized disclosure. Furthermore, the information must be owned by, produced by or for, or under the conccoleman on PROD1PC77 with HEARING

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1Pursuant to § 1.4 of the Order, information shall not be considered for classification unless 

it concerns: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including special activities), intelligence sources or methods, or 

cryptology; (d) foreign relations or foreign activities of the United States, including confidential 

sources; (e) scientific, technological, or economic matters relating to the national security, which 

includes defense against transnational terrorism; (f) United States Government programs for 

safeguarding nuclear materials or facilities; (g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, 

which includes defense against transnational terrorism; or (h) weapons of mass destruction. 

trol of the U. S. Government; and finally, it must fall into one or more of the categories of information specifically provided for in the Order.1

The President has also spelled out in the Order some very clear prohibitions and 

limitations with respect to the use of classification. Specifically, for example, in no 

case can information be classified in order to conceal violations of law, inefficiency, 

or administrative error, to restrain competition, to prevent embarrassment to a person, organization, or agency, or to prevent or delay the release of information that 

does not require protection in the interest of national security. 

It is the responsibility of officials delegated original classification authority to establish at the time of their original decision the level of classification (Top Secret, 

Secret, and Confidential), as well as the duration of classification, which normally 

will not exceed ten years but in all cases cannot exceed 25 years unless an agency 

has received specific authorization to extend the period of classification. 

CHANGES TO THE ORDER OVER THE PAST DECADE

The current framework has basically been in effect since 1995. One of the most 

innovative features of the current framework is the concept of automatic declassification. Under prior executive orders governing classification and declassification, 

information once classified remained so indefinitely and very often did not become 

available to general public, researchers, or historians without persistent and continuous effort on the part of these individuals. While all agencies had the responsibility 

to systematically review historical classified records for declassification, and some 

agencies such as the State Department did so on a regular basis, there was no specified consequence for agencies that did not conduct such reviews. Understandably, 

in times of budget constraints, reviews for declassification suffered, resulting in a 

significant backlog or ‘‘mountain’’ of classified historical records, many of which 

were much older than 25 years of age. 

Under automatic declassification, information in records appraised as having permanent historical value is automatically declassified 25 years after classification, 

unless an agency head has determined that it falls within one of several limited exceptions that permit continued classification, a continuation that either the President or the Interagency Security Classification Appeals Panel (ISCAP) has approved. In effect, automatic declassification reverses the resource burden. Unlike 

previous systems, in which agencies had to expend resources to declassify older information, under the current system, agencies must expend resources to demonstrate why older historical information needs to remain classified. 

In March 2003, the President signed Executive Order 13292 further amending Executive Order 12958. The principal purpose of the amendment was to provide agencies an additional three and a half years to address the remaining backlog of 

unreviewed 25-year-old classified records of permanent historical value prior to the 

onset of automatic declassification. This and other changes were recommended by 

a broad consensus of interagency professionals in classification and declassification. 

They reflect seven years of experience in implementing E.O. 12958 as well as new 

priorities resulting from the events of 9/11. 

What is most notable about the 2003 amendment is what did not change. The revision left the existing classification/declassification regime largely intact. It had an 

exceedingly limited impact on the way in which government officials classified or declassified information. For all practical purposes, it institutionalized automatic declassification as an essential element of the classification process. 

For classifiers, the most notable change was a simplification of the process and 

a resulting change in marking requirements. For those involved in the declassification process, in addition to providing more time to complete the review of 25-year 

old records, the revision gave greater clarity to what records are subject to automatic declassification and under what conditions. 

A synopsis of the most significant changes included in the amendment is set forth 

below: 

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—Deadline for Automatic Declassification Extended. The 2003 amendment committed agencies to finish reviewing the backlog of classified records more than 

25 years old, by the end of 2006. (Sec. 3.3(a)) 

—Clarification of Documents Subject to Automatic Declassification. Before the most 

recent amendment, the language of the Order was unclear as to what 25-yearold documents that had not been explicitly exempted from release were subject 

to declassification and under what circumstances. Moreover, even in blocks of 

retired records spanning a period of years, the language suggested that older 

documents would become automatically declassified before the larger body of 

records was subject to review. 

A number of changes were made that clarified the question of what documents are 

automatically declassified at 25 years: 

—Records in a file block shall not be automatically declassified until the most 

recent record is 25 years old (Sec. 3.3(e)(1)); 

—An additional five years is allowed for difficult to review records such as 

audio and video tapes (Sec. 3.3(e)(2)); 

—An additional three years is allowed for the release of records transferred 

or referred from another agency (Sec. 3.3(e)(3)); 

—An additional three years is allowed for newly discovered records (Sec. 

3.3(e)(4)). 

—Protecting Foreign Government Information. The 2003 amendment to the Order 

contained the presumption that the unauthorized disclosure of foreign government information exchanged in confidence will cause damage to the national security (Sec. 1.1(c)). The practical consequence of this addition was limited since 

the original Order contained such broad discretion in this area that an original 

classifier had the authority to classify such information all along. More importantly, the amendment made it explicit that for foreign government information 

to be exempt from automatic declassification, the same standard as other information concerning foreign and diplomatic relations of the United States and a 

foreign government is to be applied. Specifically, serious and demonstrable ‘‘impairment’’ or ‘‘undermining’’ of these relations or activities must be shown in 

order for the information to be exempted. (Sec. 3.3(b)(6)) 

—Categories of Classifiable Information Clarified. Additional categories of information, specifically defense against transnational terrorism, infrastructures, and 

protection services, were explicitly spelled out as included in those that were 

eligible for classification. ‘‘Weapons of mass destruction’’ was added as a separate category. Arguably, all such information was already covered by the existing Order but the amendment made these points clearer. (Sec. 1.4(e), (g) & (h)) 

—Simplifying the Scheme. E.O. 12958 had been considered unduly complicated to 

administer because of separate criteria for original classification for up to ten 

years; for original classification from 10 to 25 years; and for extending classification beyond 25 years. To correct this, the separate set of criteria for withholding information between 10 and 25 years from date of origin was eliminated. While the revised language maintains ten years as the norm for most 

original classification actions, there is now one set of criteria for classification 

up to 25 years (Sec. 1.4) and another for continuing classification beyond 25 

years (Sec. 3.3(b)). 

—Reclassification of Properly Released Material. As originally issued, the Order prohibited the reclassification of information after it had been released to the public under proper authority and prohibited it entirely for documents more than 

25 years old. The 2003 amendment restored the ability under the predecessor 

executive order to reclassify such information and dropped the prohibition on 

25-year-old information, but only under ‘‘the personal authority of the agency 

head or deputy agency head’’ and only if the material may be ‘‘reasonably recovered.’’ (Sec. 1.7(c) & (d)) 

—Continuing Ability to Exempt File Series. When the order was originally issued 

in 1995, it required that all record file series that were to be exempted from 

automatic declassification at 25 years be identified to the President before the 

Order went into effect. This was changed so that an agency may now notify the 

President at any time of file series of records that qualify under the specific 

standards for exemption. (Sec. 3.3(c)) 

—Authority of Director of National Intelligence (DNI) Recognized. While intelligence 

sources and methods information remain subject to the jurisdiction of Interagency Security Classification Appeals Panel (ISCAP), the amendment recognized the special authority and responsibility of the now DNI to protect such 

information. As such, this revision authorized the DNI to object to final ISCAP 

declassification conclusions about such information. Furthermore, a decision by 

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the DNI to bar release can still be appealed to the President by any member 

agency of ISCAP. (Sec. 5.3(f)) 

—Sharing Classified Information in an Emergency. One of the issues that arose in 

the wake of 9/11 was awareness of the limitations imposed by the lack of authority under the Order to pass classified information to individuals not otherwise eligible (e.g. local and state authorities without the necessary clearances) 

in an emergency. As a result, a section was added specifically authorizing an 

agency head or designated person to share classified information with individuals not otherwise eligible to receive it and specifying procedures to be followed. 

(Sec 4.2(b)) 

AGENCY COMPLIANCE WITH THE ORDER

In fiscal year (FY) 2006, pursuant to sections 5.2(b)(2) and (4) of E.O. 12958, as 

amended, my office conducted a total of 15 onsite reviews of Executive branch agencies. Most of these reviews evaluated the agencies implementation of the classified 

national security information program to include such core elements as organization 

and management, classification and declassification, security education and training, self-inspections, safeguarding practices, classification markings, and security 

violations procedures. 

Of the general program reviews we conducted last fiscal year, we found that few 

of the agencies visited had adequately implemented the core elements of the classified national security information program. Shortcomings were observed at multiple 

agencies in their implementing regulations, self-inspection programs, document 

markings, and refresher security education and training. It is disappointing to note 

that these same shortcomings were noted in FY 2004 and 2005. I should note that 

as a general rule, intelligence community agencies tend to have the most sound information security programs within the Executive branch. 

At several agencies, the ISOO onsite reviews identified inadequate support from 

senior management for the information security program. Sections 5.4 (a) and (b) 

require agency heads and senior management of agencies that originate or handle 

classified information to demonstrate commitment and consign necessary resources 

to the effective implementation of the Order. 

An area of significant concern was the failure of agencies to update their regulations that implement E.O. 12958, as amended, even though the Order was amended 

in 2003. Implementing regulations are essential to the program because they are 

the foundation for agency personnel in terms of obtaining guidance and procedures 

pertinent to their individual responsibilities under the Order and the Directive. 

As found in FYs 2004 and 2005, many agencies have not established comprehensive self-inspection programs. The primary reason for the shortcomings of these 

agencies’ self-inspection programs were inadequate staffing levels necessary to meet 

their internal oversight responsibilities and insufficient senior agency official emphasis. Self-inspections are an important element of the information security program because they enable the agency to evaluate, as a whole, its implementation 

of the Order’s program and make adjustments and corrective action, as appropriate. 

Refresher security education and training, although an annual requirement of the 

Order, was not being provided at a few of the agencies reviewed. This training is 

fundamental to the continuous reinforcement of the policies, principles, and procedures that individuals authorized access to classified information are expected to 

understand and implement. 

In FY 2006, we concentrated much of our compliance reviews on the appropriateness of classification decisions. We focused on evaluating if agencies were correctly 

applying the Order’s standards for originally and derivatively classifying information. Unfortunately, the reviews revealed source information often could not be 

tracked when ‘‘multiple sources’’ was entered on the ‘‘derived from’’ line of the document classification block. Almost all agencies reviewed were not keeping a list of 

the source documents with the file or record copy as required by the Directive. In 

addition, we found a high percentage of documents with an unknown basis for classification, as these documents failed to indicate the authority or basis for classification, thereby calling into question the propriety of their classification. To make clear 

to the holder the basis for classification and to facilitate information sharing and 

automatic declassification, it is imperative that multiple sources are listed and the 

basis for classification is identified when designating national security information 

as being classified. 

Another area of concern was the failure of agencies to review and update their 

security classification guidance at least every five years or sooner as circumstances 

require. In large part due to lack of timely revision to classification guides, agencies 

were still using obsolete X1–X8 declassification markings, which were eliminated by 

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the 2003 amendment to the Order. As a consequence of this erroneous action, the 

accuracy and appropriateness of subsequent derivative classification determinations 

based upon such improperly marked documents is placed in jeopardy. 

As part of our onsite reviews, we review a sample of documents to ascertain compliance with requirements set forth in the Order and Directive. A review by ISOO 

of over 2000 documents in FY 2006 revealed the following: 

—Nearly 39 percent had errors with regard to declassification instructions; 

—Portion markings were inconsistently applied in over 30 percent of the documents; and 

—For over 11 percent of the documents, the basis for classification could not 

be identified. 

An essential requirement of the Order is that only an original classification authority (OCA) is authorized to classify information in the first instance. Thus original classifications can only be made by an OCA, and every derivative classification 

decision must be able to be traced to a source document or classification guide. The 

consequence of having so many documents for which the basis of their classification 

could not be determined is that any future classification decisions based upon these 

same documents will be equally problematic and their true classification status uncertain. 

When an agency fails to effectively implement one or more elements of the classified national security program, it weakens its entire program because each of the 

elements has an essential purpose that is interdependent upon the others. Implementing regulations set the foundation for the program and establish the agency 

framework to implement the Order. Deficiencies in regulations lead to gaps in the 

agency’s implementation of the program. Classification guides are a critical tool that 

prescribes the classification of specific information. They identify the elements of information regarding a specific subject that must be classified and establish the level 

and duration of classification for each element. Outdated classification guides may 

reproduce numerous invalid derivative classification decisions, thereby undermining 

the classification system provided by the Order. It is imperative that classification 

guides are updated to reflect the changes of the Order and otherwise be kept current. 

Security education and training briefings inform/remind agency personnel of their 

duties and responsibilities and on the proper procedures for creating, handling, and 

destroying classified information. Inadequately trained personnel are more prone to 

mistakes while working with classified information. Self-inspections enable an agency to evaluate the implementation of its program on a regular basis, identify areas 

of concern, and take corrective action, as applicable. The absence of a self-inspection 

program can leave problems unidentified and uncorrected and eventually place national security information at risk. For an effective program, the various program 

elements must work together. 

IMPACTS OF OVERCLASSIFICATION

As with any tool, the classification system is subject to misuse and misapplication. 

When information is improperly declassified, or is not classified in the first place 

although clearly warranted, our citizens, our democratic institutions, our homeland 

security, and our interactions with foreign nations can be subject to potential harm. 

Conversely, too much classification, the failure to declassify information as soon as 

it no longer satisfies the standards for continued classification, or inappropriate reclassification, unnecessarily obstructs effective information sharing and impedes an 

informed citizenry, the hallmark of our democratic form of government. In the final 

analysis, inappropriate classification activity of any nature undermines the integrity 

of the entire process and diminishes the effectiveness of this critical national security tool. Consequently, inappropriate classification or declassification puts our most 

sensitive secrets at needless increased risk. 

Classification, of course, can be a double-edged sword. Limitations on dissemination of information that are designed to deny information to the enemy on the battlefield can increase the risk of a lack of awareness on the part of our own forces, 

contributing to the potential for friendly fire incidents or other failures. Similarly, 

imposing strict compartmentalization of information obtained from human agents 

increases the risk that a Government official with access to other information that 

could cast doubt on the reliability of the agent would not know of the use of that 

agent’s information elsewhere in the Government. Simply put, secrecy comes at a 

price. I have continuously encouraged agencies to become more successful in factoring this reality into the overall risk equation when making classification decisions. 

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Classification is an important fundamental principle when it comes to national security, but it need not and should not be an automatic first principle. The decision 

to originally classify information in the first instance or not is ultimately the prerogative of agency original classification authorities. The exercise of agency prerogative 

to classify certain information, of course, has ripple effects throughout the entire executive branch. For example, it can serve as an impediment to sharing information 

with another agency, with State or local officials, or with the public, if they need 

to know the information. 

The challenge of overclassification is not new. Over 50 years ago, Congress established the Commission on Government Security (known as the ‘‘Wright Commission’’). Among its conclusions, which were put forth in 1955, at the height of the 

Cold War, was the observation that overclassification of information in and of itself 

represented a danger to national security. This observation was echoed in just about 

every serious review of the classification systems since to include: the Commission 

to Review DoD Security Policies and Practices (known as the ‘‘Stillwell Commission’’) created in 1985 in the wake of the Walker espionage case; the Joint Security 

Commission established during the aftermath of the Ames espionage affair; and the 

Commission on Protecting and Reducing Government Secrecy (often referred to as 

the ‘‘Moynihan Commission’’), which was similarly established by Congress and 

which issued its report in 1997. 

More recently, the National Commission on Terrorist Attacks on the United 

States (the ‘‘9–11 Commission’’), and the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (the ‘‘WMD Commission’’) likewise identified overclassification of information as a serious challenge. 

As I stated earlier, the ability and authority to classify national security information is a critical tool at the disposal of the Government and its leaders to protect 

our nation and its citizens. In this time of constant and unique challenges to our 

national security, it is the duty of all of us engaged in public service to do everything possible to enhance the effectiveness of this tool. To be effective, the classification process is a tool that must be wielded with precision. In an audit of agency classification activity conducted by my office over a year ago, we discovered that even 

trained classifiers, with ready access to the latest classification and declassification 

guides, and trained in their use, got it clearly right only 64 percent of the time in 

making determinations as to the appropriateness of classification. This is emblematic of the daily challenges confronting agencies when ensuring that the 3 million 

plus cleared individuals with at least theoretical ability to derivatively classify information get it right each and every time. 

EFFECTIVENESS OF CURRENT DECLASSIFICATION EFFORTS

Setting deadlines for agency action in implementing the automatic declassification 

provisions of the Order is essential in ensuring the continued integrity and effectiveness of the classification system, which cannot be depended upon to protect today’s 

sensitive national security information unless there is an ongoing process to purge 

it of yesterday’s secrets that no longer require protection. The automatic declassification process increases the potential release of formerly classified information 

to policy-makers and lawmakers as well as the general public and researchers, enhancing their knowledge of the United States’ democratic institutions and history, 

while at the same time ensuring that information which can still cause damage to 

national security continues to be protected. An agency’s failure to fully implement 

automatic declassification provisions undermines its ability to achieve these complementary objectives. 

After several deadline extensions, automatic declassification finally became effective on December 31, 2006, with a few notable authorized delays. While a detailed 

analysis of the final results is still underway, it appears that all Executive branch 

agencies have succeeded in meeting their obligations under the automatic declassification provisions of the Order. As significant as the initial development of the 

concept of automatic declassification was, its actual implementation after so many 

false starts and delays is even more of an accomplishment. It reflects well on the 

diligence and efforts of both the public servants who accomplished this milestone 

through their hard work and perseverance, as well as the agencies that committed 

the requisite resources. I should note to you today the significant leadership and 

support within the interagency declassification community displayed by the Central 

Intelligence Agency since 1995. 

Significant challenges remain. For example, the Order allows a delay in automatic 

declassification for up to three additional years (December 31, 2009, for classified 

records currently 25 years old or older) that contain information of more than one 

agency or information the disclosure of which would affect the interests or activities 

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of other agencies. Similarly, automatic declassification for classified information contained in microforms, motion pictures, audio tapes, video tapes, or comparable 

media that make a review for possible declassification exemptions more difficult or 

costly may be delayed from automatic declassification for up to five additional years. 

Improved processes, education about other agency equities and enhanced agency collaboration are necessary to ensure quality reviews with minimal referrals and adequate documentation regarding actual decisions made are essential. 

It should be noted that from the perspective of the public, researchers and historians, there is no ‘‘vault-full’’ of previously classified records that became automatically publicly available on January 1, 2007. However, in many regards, the public 

has already seen the major benefits of automatic declassification. Automatic declassification has served as the impetus during the recent past (since 1995) for many 

agencies to devote necessary resources for the establishment of substantial ongoing 

declassification review programs. 

During FY 2006, the Executive branch declassified 37,647,993 pages of permanently valuable historical records, which is a 27 percent increase over what was reported for FY 2005. This large increase was primarily due to the final push to comply with the December 31, 2006 automatic declassification deadline. Since 1995, 

agencies have reported the declassification of more than 1.33 billion pages of previously classified historical records. Only 257 million pages were declassified under 

the two previous executive orders governing classified information, a period encompassing almost twice as many years. 

Furthermore, the infrastructures established by agencies to accomplish declassification reviews since 1995 will continue indefinitely, thus contributing to the universe of declassified information as a new batch of historical records reaches 25 

years of age each and every year. However, we are concerned that some agencies 

may have regarded the automatic declassification deadline of December 31, 2006 as 

a one-time push rather than an ongoing requirement. 

Finally, declassification does not always equate to public access. Documents that 

have been declassified must still be reviewed to ascertain whether they contain 

other information that may not be releasable to the public, e.g. personal information. Also, declassified records must be accessioned and processed by archivists before they can be ‘‘put on the public shelves.’’ These activities ensure that the National Archives and Records Administration (NARA) has both physical and intellectual control of the records. While some 460 million declassified pages of federal 

records have been made publicly accessible since 1996, NARA holds another 400 

million pages of declassified federal records that require additional processing before 

they can be made available. To add to the burden, hundreds of millions of pages, 

both classified and recently declassified, remain within the custody of their originating agencies and will also require processing upon accession into NARA before 

they are made available to the public. 

EFFECT OF SELECTIVE CLASSIFICATION AND DECLASSIFICATION

As I indicated earlier, the decision to originally classify information in the first 

instance or not is ultimately the prerogative of agency original classification authorities. 

Similarly, the Order clearly states that information shall be declassified as soon 

as it no longer meets the standards for classification under this order, irrespective 

of the initial duration decision of the original classification authority. The Order 

goes on to state (section 3.1 (b)) that it is presumed that information that continues 

to meet the classification requirements under the Order requires continued protection. However, the Order does recognize that in some exceptional cases the need to 

protect such information may be outweighed by the public interest in disclosure of 

the information, and in these cases the information should be declassified. When 

such questions arise, the Order assigns the responsibility to make such a decision 

to the agency head or the senior agency official designated by the agency head 

under the Order. That official is responsible to determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national 

security that might reasonably be expected from disclosure. 

Again, I thank you for inviting me here today, Madame Chairwoman, and I would 

be happy to answer any questions that you or the subcommittee might have at this 

time. 

Chairwoman ESHOO. We have been joined by another distinguished member of the full committee of this subcommittee, Mr. 

Rush Holt, Congressman Holt from New Jersey. I would invite you 

to make a statement. 

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Mr. HOLT. I will wait until we get to the questions. Thank you. 

Chairwoman ESHOO. Let me once again thank the witnesses. 

There was a lot of material in your comments. 

Let me start with this question, and that is, has Congress ever 

revised an executive order, I mean, leaned in legislatively to either 

bolster what is an executive order or to change it in some way, 

shape or form? 

Mr. LEONARD. I think the most recent efforts in that area date 

back to the mid-1990s where there was the commission on reducing 

government and improving government secrecy, commonly known 

as the Moynihan Commission, where Senator Moynihan took the 

lead. 

The major thrust of that commission and their findings was to 

give a legislative basis, if you will, to much of the executive order. 

That is one of the many recommendations of that commission that 

actually did quite a bit of effective work that really has not seen 

the light of day. 

Chairwoman ESHOO. Maybe all three of you want to lean in on 

this. What in your view are the costs of overclassification? I mentioned, obviously, a big one. I mean, what we have learned from 

September 11th 2001. But if you would like to comment on that, 

fill it out. 

I think it is an important thing for us to be made very well 

aware of because the tendency is and the number of pages declassified recently are really abysmal when you look at Ms. Fuchs’ chart. Who would like to take a stab at that? 

Ms. FUCHS. Well, I mean, I think the costs of overclassification 

are myriad and in some respect they may be hard to identify because we don’t know what the secrets are that we haven’t heard 

of. But certainly in a situation where things are classified that 

shouldn’t be classified, it leads to disrespect of the system, and I 

think that is one of the reasons there have been so many incredible 

leaks to the press in the last couple of years, because so many important things including important policy choices are classified, and 

that limits dissent. So I think it leads to more leaks. 

I also think it makes the public suspicious. This is the United 

States of America. This is a democracy. We citizens feel proud we 

live in a country where the Congress and President are supposed 

to be responsive to our concerns. 

That doesn’t happen everywhere. In how many other countries 

could you see their intelligence agency releasing the skeletons in 

the closet, the ‘‘family jewels’’? That is something that we need to 

preserve because that makes our country special. If we allow secrecy to go unchecked, then we are not going to be like that any 

more. 

Chairwoman ESHOO. I think that is one of the most obvious ones. 

It is a very important one. 

Mr. Aftergood or Mr. Leonard, do you want to add anything? 

Mr. LEONARD. Clearly, I think most people would recognize that 

the best policy, the best solutions always come about after a robust 

and full exchange of ideas and a full exchange of information. Classification in and of itself guarantees that you will never achieve 

that optimal level because you, by definition, are restricting your 

input, restricting the deliberation of whatever. 

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So there are many times where that is a price we have to pay. 

We have to accept a sub-optimum outcome because we need to 

deny information to those who would use against information 

against us. But when we sign up to a sub-optimal outcome needlessly and deny that full and robust change—— Chairwoman ESHOO. What do you think is the most important 

tool for what you just described? 

Mr. LEONARD. To preclude that from happening? 

Chairwoman ESHOO. The misuse of it. 

Mr. LEONARD. The most important tool is we literally have to 

change the culture, because right now we have a culture where 

people rightfully are held accountable both administratively and 

criminally when they improperly disclose information. But I dare 

say I have a hard time identifying a situation where anybody has 

ever been held accountable for improperly restricting information. 

The system is out of kilter in that regard. We need to get it right 

each and every time from both directions, and until we come up 

with a means by which to hold people accountable for inappropriately hoarding information or inappropriately and needlessly restricting the dissemination of information, we will always have that 

tilt to, when in doubt, withhold. 

Chairwoman ESHOO. Is it your agency that in some ways— maybe this is a stretch to describe it this way. Do you act in some 

way, shape or form as kind of an IG looking over the shoulder of 

the executive and making sure that the executive order is carried 

out? Is there any Checkpoint Charlie besides the House Intelligence Committee, the Senate Intelligence Committee? Really so 

much of this rests with the executive branch. 

Mr. LEONARD. Ultimately, the decision to classify is a judgment 

and an act of discretion. 

Chairwoman ESHOO. The oversight and implementation of many 

of the things that you have in your written statement. 

Mr. LEONARD. That, from my perspective, is what is lacking. Because my office, the role we play is we will look and say, is the decision—is it made in accordance with the standards, which is different than asking the question was it the right decision. 

One of the things that I have long advocated is assigning to a 

rather senior official within agencies that role to be the advocate 

for challenging classification decisions where we actually inculcate 

a culture where people can challenge what they perceive to be inappropriate classification decisions and serve as an advocate for ensuring that the proper judgment is brought to these types of decisions. 

Chairwoman ESHOO. Kind of hard to do when we talk about having to change the culture in order to make this happen, though. 

Sometimes the most effective keepers of the culture are the people 

that are at the top, and then we would want them to review and 

make sure that they are essentially being the devil’s advocate and 

check on the system. It is difficult, but I appreciate what you are 

saying. 

Mr. Aftergood, did you want to add something? 

Mr. AFTERGOOD. I would endorse both what Ms. Fuchs and Mr. 

Leonard said, and I think it is true that you need to change the 

culture, but I don’t think it is particularly helpful to put it that 

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way because it is too diffuse of a goal. Instead, I think we ought 

to focus more on nuts and bolts questions of how do we actually 

increase the oversight in a meaningful way. 

The President’s executive order delegated the only real oversight 

function to Mr. Leonard’s organization, which is an office of perhaps 20 or 30 individuals at the National Archives responsible for 

overseeing a system of perhaps 3 million people holding clearances 

and tens of thousands of government officials. So, obviously, it is 

an oversight system that is not designed to fulfill its declared function. 

Okay, so what do you do about that? One thing you can do about 

it, without getting too grandiose or thinking about something too 

ambitious, is to expand the number of individuals whose job it is 

to perform oversight. 

How do you do that? Well, most intelligence agencies and other 

government agencies have inspectors general housed in their agencies. In the intelligence agencies, they all hold clearances. Why not 

ask them as part of their routine functioning once a year, or more 

often, periodically do an audit of classification and declassification 

activity. 

Now they may find that they are not classifying enough or they 

are classifying too low. It doesn’t matter. Have somebody whose job 

it is to think about the proper functioning of the classification system. Let them do an independent audit. Because the IGs are already housed in the agencies, they are less likely to engender the 

opposition that somebody from way outside the agency is automatically going to generate. 

Chairwoman ESHOO. Culture is already accustomed to them. 

Mr. AFTERGOOD. Some are already doing it on an ad hoc basis. 

But if this subcommittee were to ask each of the intelligence 

agency IGs, saying, look, we want you to once a year do an audit 

of classification practices, report to us, preferably in unclassified 

format, do it every year, and then see what happens. 

Chairwoman ESHOO. Very helpful. Thank you. 

Mr. Issa. 

Mr. ISSA. Thank you very much, Madam Chair. 

I am going to try to be tough to get some answers here, because 

I think there is a couple of things I want to get clear answers for 

the record on, and I think Director Leonard will probably answer 

most of these. 

Director, do the North Koreans, the Cubans, the Iranians, do 

they declassify and put on the Web anything? 

Mr. LEONARD. Not that I know of. 

Mr. ISSA. Did the Soviet Union ever do that during its existence? 

Mr. LEONARD. Not that I am aware of, no, sir. 

Mr. ISSA. Does Russia currently maintain a high level of secrecy, 

again, vis-a`-vis Putin’s announcement that he had secretly done a 

new level of nuclear weapon while we were paying under NunnLugar to clean up his old weapons? 

Mr. LEONARD. Probably a fair statement. 

Mr. ISSA. So, in fairness to ourselves, from all three of you, 

please, to the extent that we do this both publicly and internally, 

we are, for all practical purposes, the only nation doing it, is that 

correct? We are the only major nation that has major secrets that 

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makes anything close to this amount public as a matter—I am not 

trying to pat us on the back. I think we have a lot of room for improvement. But I want to have us all do a reality check, which is 

the bad guys do not participate in this and we have had no luck 

at getting them to participate. Is that a fair statement? 

Ms. FUCHS. I think it is fair to say that we are doing a much 

better job than all those countries we would never want to emulate, 

that is correct. 

Mr. ISSA. Let’s go a little further. Has France told us——

Chairwoman ESHOO. Did your daughters hear that? 

Mr. ISSA. They left. I waited to get tough. 

Has France—France is one of the three greatest spies on us: 

France, China and Israel. Common knowledge. 

Mr. AFTERGOOD. The United Kingdom does a lot of declassification. 

Mr. ISSA. Has France told us what they did to spy on us, Israel, 

or has China told us what they did, the three biggest spies against 

us? I am not an expert on this. Have we found out what they did 

25 years ago by their putting it on the Web? 

Ms. FUCHS. I think there have been times when other countries 

have declassified important information. For example, my organization has sought a lot of information about the Cuban missile crisis; 

and we were involved with organizing a conference held in Cuba 

at which former Soviet officials, U.S. officials and Cuban officials 

attended. And thanks to our efforts to unleash information from 

the U.S. Government, Fidel Castro actually came to the conference 

with a stack of papers which showed what Cuba knew was going 

on at the time of the Cuban missile crisis. 

So it happens. I certainly agree that we have made much more 

of an effort than other countries. 

Mr. ISSA. That was really setting it up for the major question 

and that is one from this part of this hearing is probably our first 

priority. Ms. Fuchs, from your part, it might be not the first. 

Today, the biggest concern I think on the dais—and I am asking 

for input on this—should be the fact that stovepiping exists, that 

overclassification that prevents the 3 million people who have security clearances at various levels are unable to get the equivalent 

of CREST in a classified world so that they know what they don’t 

know. Is that commonly agreed to the extent that you each know 

about it, particularly Director Leonard? I know you would be more 

aware of just how much stovepiping there is. 

Mr. LEONARD. The classification system in and of itself is an impediment to information sharing, especially third agency rules and 

things along those lines, yes, sir. 

Mr. ISSA. So when we deal with Confidential, For Official Use 

Only, Secret and Top Secret, we are dealing with the peanuts. Realistically, if this committee is to do its best work, wouldn’t we first 

start with Compartmented, where it is not available to other security agencies even when they have a valid need to know because 

they don’t know that it exists? If we are trying to prioritize some 

of our highest priorities, would that be fair to say? 

Mr. LEONARD. Writing intelligence for the consumer, either taking code word information and writing it to the collateral level, to 

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the confidential secret level, or writing it to the unclassified level 

for the uncleared state and locals, yes, sir, that is clearly—— Mr. AFTERGOOD. I would just add there is a cluster of problems 

here that are slightly different, but they are also related. Disclosure to the public is a different issue than information sharing 

within the government. Nevertheless, some of the solutions overlap. 

For example, the tear-line approach where you segregate information by classification level, you separate out the compartmented 

stuff from the collateral secret stuff from unclassified stuff. If you 

do that, you can share both widely within the government, you can 

also perhaps disclose to the public, and it also facilitates declassification at the end of the document’s lifetime. 

Mr. ISSA. That is exactly what I was getting to. If we can force 

the community which we have oversight on to adhere to existing 

requirements that they in fact begin creating what we all know 

from doing word processing, sort of the bold lines that we see when 

we do edits so that when you send back a document, they know 

what you edited, et cetera. We implement that same basic technology to the basic levels of security. Then we should, as an oversight agency, be able to scan a great deal of information at a level 

before we ever start asking for the little piece that is essentially 

redacted but in a digital world redacted in a different way. 

Mr. AFTERGOOD. If I could make one practical suggestion. Rather 

than attempting to change the practice throughout the entire community, which, again, may be too ambitious and may generate 

automatic opposition, I would suggest it might be tactically wise to 

break the problem up into smaller pieces and to begin—you mentioned in your opening statement the National Intelligence Estimate that was unable to be shared. Why not begin with the National Intelligence Council and tell them, look, in the future, we 

want all of your NIEs to be prepared in a tear-line format so that 

at a minimum, even if they are classified, the noncompartmented 

portions can be shared widely with Congress, cleared staff and so 

forth. 

Mr. ISSA. You just scored a home run for something I think we 

can implement as a result of this hearing. 

Mr. AFTERGOOD. I should add that that may be the staff director’s idea, because we were discussing that prior to the hearing. 

Chairwoman ESHOO. You can share it. 

Mr. ISSA. We have always found those to be solid. I am going to 

ask you a tough question, and my time is running short. 

Chairwoman ESHOO. It is up, but you can have more time. 

Mr. ISSA. Thank you. I will be brief, though. 

Because if it goes to a level of declassification, Mr. Aftergood, 

since your bio gives me the in, I will use it. I always love using 

people’s bios. One of your claims to fame was in fact when you sued 

the government to find out that the intel budget in 1997 was 

$226.6 billion. Quite an accomplishment to get a number for the 

first time. 

In your estimate, to the public what breakdown of the right to 

know below that number do you think is appropriate? I take it 

from each of you. In other words, I will give you some real quick 

hypotheticals. Should we break it down by overall agency, by reccoleman on PROD1PC77 with HEARING

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gion, by counties? Should we break it down by how much we pay 

the operative A, B, C? Where do you draw the line? 

I ask you that because you did quite a breakthrough, but we also 

have to know from our standpoint where the community would 

draw the line, where you would draw the line. 

Mr. AFTERGOOD. If your question is, if I were President, how 

much would I declassify, then I think I don’t see a problem with 

declassification of individual agency budgets, totals, in other words, 

figures for individual agencies. I am not the President. 

Mr. ISSA. I am not a Senator, so I am not even going to be one. 

Mr. AFTERGOOD. I accept the fact that all—that there is a bare 

consensus represented by the 9/11 Commission and others that the 

total budget for the national intelligence program should be disclosed but nothing beyond that. And I would note that when the 

budget was declassified by the Director of Central Intelligence in 

1997 and 1998, the one number was released and it did not lead 

to a hemorrhaging of further detailed secrets. In order words, the 

system was perfectly capable of drawing a line. It would not have 

been the line that I would draw necessarily, but it was a line that 

was drawn and was adhered to. 

Mr. ISSA. Thank you. 

Thank you, Madam Chair. 

I might note for the record that every Member of Congress has 

the ability to go up to the Crypt, not just those on the committee, 

and see a considerable level of detail of dollars by agencies and so 

on. That is a right every Member of the House and Senate has, and 

it also hasn’t led to hemorrhaging of the public hearing how much 

a particular program goes to. 

Thank you. 

Chairwoman ESHOO. Thank you. Excellent questions. 

Mr. Holt. 

Mr. HOLT. Thank you, Madam Chair. Thanks for setting up this 

meeting and thanks for the excellent staff work. It may have consisted of coaching the witnesses. I am not sure. 

But I must say, Mr. Aftergood, you have made several very specific and useful suggestions so far; and I hope we will come out of 

this hearing with some specific applicable suggestions, perhaps legislative controls that should be imposed or recommendations to 

agencies. 

Recognizing that excessive secrecy is actually a danger to democracy as well as a danger to good decision-making, we have to know 

where to draw the line. Stovepiping clearly interferes with the appropriate sharing of information that is necessary for good decisionmaking. It is fairly easy to know when you have erred on the side 

of failing to classify if someone’s sources or methods or identity is 

exposed and harm comes to them, comes to our country, comes to 

a program, comes to those who would be assisting our country. But 

it really is hard in the other direction. I mean, is there a rule of 

thumb to know that can be applied when there is excessive—when 

there is overclassification? 

That would be for all of you, because it is a general question. 

Mr. LEONARD. One of my observations over the years is a good 

indicator of overclassification is the amount of leaks that occur. As 

many leakers as there are in this town, there are reasons for doing 

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it. But one of the things that contributes to leaks is a lack of respect for the integrity of the system where people see information 

that has markings on it that a reasonable person would question. 

And when you start having people start substituting their own 

judgment for the judgment of the process, that is usually an indicator that the process is coming up short. 

Ms. FUCHS. I guess I would add that there are audits done of 

how agencies do their classification decisions, and you can see from 

those audits that there are problems. I think that is a good recommendation for how to limit overclassification. 

When the reclassification of historical records on the public 

shelves at the National Archives was exposed a couple of years ago, 

the Information Security Oversight Office did conduct an audit and 

the Archivist of the United States who held a meeting with officials 

from all of the agencies who had improperly reclassified information and members of the historical community, including my organization. And at the table I asked the question, so what are the 

consequences to these agencies for having flouted the executive 

order that was issued and for having reclassified without notifying 

the Information Security Oversight Office? The people from the 

agencies looked at me like I was insane. 

Mr. HOLT. That was actually my next question. What sanctions 

do exist? And I think there are none for overclassification, what 

sanctions might exist. 

I didn’t let everyone answer my first question, but if you wanted 

you could roll the answer of the second question in there. 

Ms. FUCHS. I just wanted to finish up. I think that, obviously, 

the vast majority of people who are keeping secrets or marking 

them secret are doing it to protect the United States and because 

that is their job. They are not trying to cause harm. But when it 

is shown that they have done something wrong, there should be 

some consequences. There certainly should be retraining. I mean, 

if they are classifying things improperly——

Mr. HOLT. What sanctions or controls exist against an employee 

or an office that overclassifies? Is there anything? 

Mr. LEONARD. The order and the directive recognizes the need for 

sanctions but does not prescribe any. 

But to build on what Ms. Fuchs indicated, there are some best 

practices out there that some agencies do. For example, the Department of Energy actually requires a demonstration of a minimum 

level of competence before someone is allowed to classify. The CIA, 

for example, requires every classified product to have on it the 

identity of the individual who signed. 

Mr. HOLT. That is training in advance, but is there anything 

after the fact? 

Mr. LEONARD. The nice thing, if agencies require certification, if 

they require a demonstration of competence, if some of them do audits and demonstrate an inability to get it right, there is an easy 

way to apply sanctions: Take away your certification. You can no 

longer classify something. You will have to go to your supervisor 

or whatever to get classification controls until you get recertified or 

retrained. That is an easy way, not a debilitating sanction, but it 

gets people’s attention, and I think it actually would work. 

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Mr. HOLT. In practice, are there regulations or legislation that 

should be imposed for that to occur? 

Mr. LEONARD. Agencies have the leeway right now to do that if 

they choose. NRO, for example, limits who can assign classification. 

Most do not. 

Mr. HOLT. Do you know of examples where someone’s ability, 

prerogative to classify has been stripped because it was found in 

an IG report or otherwise they were overusing? 

Mr. LEONARD. I believe the DOE, for example, when they see evidence that someone who is trained either as a classifier or 

declassifier isn’t getting it right, at the very least—— Mr. HOLT. Do you think there might be a few examples out 

there? 

Mr. LEONARD. Yes, sir. Only a few. But there are some best practices out there. 

Mr. HOLT. You had suggested that the IG in each agency do an 

audit of classification and the use of it. Does any agency’s IG, or 

other, if not the IG, other agency organization do that now? 

Mr. AFTERGOOD. I believe so. I think over the years——

Mr. HOLT. As a regular——

Mr. AFTERGOOD. Not as a regular. 

Mr. HOLT. That is what you were suggesting. 

Mr. AFTERGOOD. Part of their portfolio, yes. 

Chairwoman ESHOO. We are getting some important work done 

and excellent questions asked. 

Mr. HOLT. Following along this line now, not just the training 

but the process and controls for determining who has the ability 

and trustworthiness to handle classified information, are those controls appropriate? In other words, how you determine the level of 

clearance a person has? 

Mr. LEONARD. That has been a vexing issue for decades. 

Mr. HOLT. That is why we are asking you wise people. 

Mr. LEONARD. From a policy perspective, it is identical across the 

board. From a practical perspective, somehow, some way it doesn’t 

come into reality. 

One of the challenges is that, whereas everybody will sign up to 

the same set of standards for giving someone a clearance at the TS 

or SCI level, for example, individual agencies will say, okay, that 

is well and good, but, in addition to that, we have to determine 

whether you are suitable for overseas posting or suitable for this, 

and they impose additional suitability requirements, which although technically doesn’t affect their clearance, from a practical 

point of view is the same: I am not going to let you access this information system. 

Mr. HOLT. As you answer this, let me throw out a thought that 

I have had for some time which is the difference among the agencies may not be a bad thing if we use that difference to learn what 

works and what is appropriate. 

Mr. HOLT. If we imposed nationwide or communitywide, you 

know, one particular way, for example, certain kinds of polygraphs, 

whatever it is, we might lock ourselves into a decades-long mistake. 

Mr. LEONARD. Clearly the standard for someone to be assigned 

in a national clandestine service overseas needs to be different 

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than someone who is going to sit, you know, at the Department of 

Education at a computer terminal. The key is to minimize those 

differences to ensure that if there is an extra requirement, that it 

is truly fulfilling a unique need and not just another way of coming 

up with the same answer to the same question. 

Chairwoman ESHOO. Okay. I would like to do another round if 

you have additional questions. 

I would like to just jump in here and ask Mr. Leonard. You mentioned that the Moynihan Commission recommended providing the 

legislative basis for the Executive Order. Do you have views on 

what elements should be made statutory? 

Mr. LEONARD. The ability to restrict dissemination of national security information clearly is an absolute constitutional prerogative 

of the President pursuant to Article II, and that has been long recognized by the courts. 

So I think the basics in terms of what information is identified, 

how it is identified, to what level; but then over and above that the 

mechanics of how agencies implement the President’s policies from 

an overall efficiency point of view, from a point of view of how it 

impacts upon the mission of an agency and its ability to do that 

in an efficient and effective way, those nuts-and-bolts-type issues, 

I think, clearly are appropriate. 

Chairwoman ESHOO. Which is really the jurisdiction of this committee and why we are having this examination. 

Has Congress ever legislated in this area? 

Mr. LEONARD. Congress will on occasion, you know—for example, 

the first thing that occurs to me is something that has just been 

reconsidered by the Senate Select Committee on Intelligence. There 

was a statute passed dealing with clearances of individuals within 

the DOD and prohibiting the granting of clearances to anyone who 

had a felony record and spent more than a year in jail. That is 

something that is over and above the President’s policy. 

So there is an example of legislation involving classified or access 

to national security information where Congress has weighed in. 

Chairwoman ESHOO. It is an example, but not so much what we 

are discussing here today, but it is an example of what is legislatively enacted. 

Mr. AFTERGOOD. Maybe a more pertinent example is the fact 

that Congress legislated the classification system for atomic energy 

information, nuclear weapon design information in the Atomic Energy Act in the restricted data and formerly restricted data, which 

is essentially a parallel system that was enacted into law by Congress. So when the executive branch says this is a Commander in 

Chief function, the answer is no, not exclusively, and Congress has 

demonstrated that. 

Now, for myself, I think I would caution against this line of—this 

pursuit, because I remember 10 years ago testifying with Mr. Leonard—he was then at the Department of Defense—before Senator 

Fred Thompson’s Governmental Affairs Committee on something 

called the Government Secrecy Act of 1997, which was a proposed 

bill to essentially legislate a classification system. Now 10 years 

later, there is no Government Secrecy Act of 1997 because it never 

went anywhere. 

ccoleman on PROD1PC77 with HEARING

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And I think, for me, the lesson is that sometimes when you are 

too ambitious, you end up getting nothing done. And in retrospect 

I think a lot of that work done then was wasted effort. And I, for 

myself, I would rather see incremental changes that really are 

adopted this year and next year and the year after that, and then 

we will be way, way ahead of the game rather than, you know, trying to legislate a whole classification system. 

Ms. FUCHS. There is one area that Congress has legislated that 

relates to this in the National Security Act. It puts the obligation 

on the Intelligence Community not to disclose sources and methods, and that is one area whereas the most important area in many 

ways with respect to classification, and we see it throughout all 

sorts of secrecy and disclosure decisions. 

But it is also something that the Moynihan Commission touched 

on, and it is an area—there is frankly not much definition in the 

law about what sources and methods means and what it is intended to protect, and it is an area where—from the perspective of 

our advocates—where we say the Intelligence Community has been 

extreme in its protection of entire documents based on the fact that 

they derive——

Chairwoman ESHOO. How do you know that if it is a secret——

Ms. FUCHS. Frankly, sometimes we see documents that are disclosed at different times with redactions, so you know, in fact, what 

was redacted. That is one reason. I mean, in addition, you mentioned—Ranking Member Issa mentioned Mr. Aftergood’s litigation 

against the government involving the intelligence budget in which 

they said the intelligence budget itself is a method. 

I wouldn’t draw on that case as an example of extreme points of 

view, but they have also said that the process of briefing the President, the fact that the CIA briefs the President on intelligence matters is a method. Well, frankly, it is the one method that we all 

know exists. Former DCI Tenet talked about it extensively in his 

recent book. The current Secretary of Defense talked about it in his 

book. President Clinton has talked about it extensively. It is no secret, and yet it is a protective method from the perspective of the 

CIA. 

So there is some extremism there and something that I think, 

given that it is in the National Security Act, is something that Congress could consider looking at. 

Chairwoman ESHOO. Thank you very much. 

Mr. Issa. 

Mr. ISSA. Well, I think the secret is you can sell books if you 

keep it a secret, and it seems like it is a bipartisan thing to do. 

A couple of questions, and I don’t expect full answers today, but 

I think this is going to go beyond this, and I appreciate your responses as you reflect on this. 

You said baby steps and—you didn’t say baby steps. I took that 

word out of it. Yours was redacted. 

Mr. HOLT. Incremental changes. 

Mr. ISSA. Yes. Baby steps is what it changes to. And I think you 

are right. 

I think the history of great bills that didn’t happen or even medium-sized bills that never got implemented tells us we need to 

ccoleman on PROD1PC77 with HEARING

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find progress in a relatively short period of time, less than one 

Presidential term at a minimum. 

And so would you support, and this is for each of you, a significant change in the bias of classification, meaning sunsetting of initial classifications, so that any classification would, by definition, 

have to be reclassified, or it would drop a level—these are levels 

above Top Secret—so that you would never have a 25-year unless 

it was looked at repeatedly? Basic conceptual change that—and we 

are not going to discuss every level and how many years it would 

be authorized, and who would authorize, and what level it would 

take above this initial classifier to essentially reassess it, but the 

basic concept that just throwing ‘‘Top Secret Codeword blank’’ does 

not make it go away for 25 years because nobody knows about it. 

And then at a certain level, well below the levels I have described, do you believe that we should implement and fund a national security database that, by definition, is where materials 

below a certain level within the community would have to be made 

available, including—and I think the current that is most important today and what I learned today—those portions of communications which, in this tier-sheet-type environment, are, in fact, at 

that level? So, you know, at least portions of—at least the fact that 

we met on a Monday morning at 8 o’clock would be there even if 

it couldn’t say that we met with the DNI. 

Those are the three questions. I will take briefly any answers or 

thoughts that you have and the rest for the record, and I would appreciate it. 

[The information follows:] 

RESPONSE OF STEVEN AFTERGOOD

Rep. Issa’s suggestions for a change in the bias of classification, including an automatic sunsetting of initial classifications after a set period of time, and for establishing a national security database to encourage sharing of classified information 

merit careful consideration. 

But I suspect that these proposals are too abstract and incompletely defined to 

be implemented as described. 

President Nixon’s Executive Order 11652 included an automatic classification 

downgrading schedule that resembles Rep. Issa’s concept. But it did not achieve its 

intended purpose. (President Clinton’s EO 12958, as amended, has been somewhat 

more successful with its automatic declassification provisions.) 

As for the national security database proposal, various interagency databases involving classified information have reportedly failed to fulfill their potential, because 

agencies have declined to fully participate in sharing their information. 

So something more or different is required. 

Rep. Issa’s suggestions might indeed prove fruitful if they were applied within a 

relatively discrete and homogeneous set of records—say, certain types of intelligence 

analyses—rather than being applied to the universe of all classified records. 

As I tried to indicate in my testimony, I believe ‘‘experiments’’ in classification 

and declassification policy should be encouraged at the pilot project level. Proposals 

like Rep. Issa’s and others would be worth testing in practice to discover what 

works. 

RESPONSE OF MS. FUCHS

Thank you for the opportunity to respond to the open questions. In my view the 

implementation of automatic declassification for 25 year old records still has the potential to transform the system by pushing aside secrecy fetishes that have been 

permitted to exist for decades. As the community learns that historic material can 

be released without harm, there may be a greater willingness to share current information within the intelligence/law enforcement/homeland security communities. 

Having said that, automatic declassification has not resulted in the disclosure of 

much information because all the records still have to be reviewed for other senccoleman on PROD1PC77 with HEARING

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sitivities, such as privacy, and because many agencies have been able to obtain file 

series exemptions from automatic declassification. 

Although I think it would be helpful to have a system that involves regular review 

to determine whether classification status should be maintained or dropped, as Mr. 

Issa suggests, it may be impractical. Thus, the fall back of having initial classification decisions be limited in their duration is important. In addition, having a system 

of downgrading classification levels is useful. It is also critical to prevent initial 

overclassification. Thus, requirements that records be created in unclassified format 

or with unclassified versions would alter the mindset that Mr. Issa referred to—the 

one that looks as classification as a locked closet where secrets will disappear forever. It would force agencies to explain their policies, practices and activities in a 

way that could be shared and debated. It would also make it possible for the agencies to share information with their State, local, tribal and private sector colleagues 

unencumbered by concerns about secrecy. If such unclassified records were required 

and created in every instance, then the national security database suggested by Mr. 

Issa could serve a useful purpose. Without a requirement that records be created 

in unclassified form, however, such a database could be ineffective and misleading. 

RESPONSE OF J. WILLIAM LEONARD

While the goal of such a recommendation is commendable, on a practical basis it 

would be difficult to implement. In an information sharing environment, we want 

to encourage the appropriate sharing of classified information. However, in the current environment, the originator of the information will never know all the places 

where the original information eventually ends up. Thus, it would be exceedingly 

difficult and resource intensive to notify holders of the information as to the results 

of these periodic reviews of the appropriateness of continued classification. The vast 

majority of classified information can be declassified well before 25 years and this 

reflects the actions of agencies as well. For example, in FY 2006 agencies made 

231,996 original classification decisions of which nearly 61 percent were assigned a 

duration of ten years or less. However, I believe that too much information is exempted from declassification after 25 years and that a solution is to carve out a 

more narrow exception than what is currently in effect as to what information can 

be kept classified beyond 25 years. I do think we should establish a national security database and I believe such a goal is an integral part of the President’s direction to establish an information sharing environment which links people, systems, 

databases, and information of Federal, State, local, and tribal entities and the private sector to facilitate terrorism information sharing, access, and collaboration. 

Once such a system is established, it potentially could alleviate the impediments to 

implementing the recommendation for a relatively short sun set date for classification decisions. 

Mr. LEONARD. I think the thing on duration is that is something 

that is long needed, but it is also the hardest nut to crack. 

My personal perspective, I think we have a much more simplified 

scheme. There is the core things we have to protect for a long period of time: identity of human sources, cryptography, those sorts 

of things. But I think we could come up with a very narrow universe, put those aside, and then come up with a greatly simplified 

scheme than what we have now, which, quite frankly, I think ultimately is very—is very difficult to administer. 

Mr. AFTERGOOD. It is a pity that the ODNI representative is not 

here, because these are good questions to air with—— Mr. ISSA. They won’t go into it either when he is finally there. 

Mr. AFTERGOOD. You know, I think there are some rudimentary 

equivalents of the kind of database you are describing whether it 

is Intelink or some other version of it. 

Mr. ISSA. The good news of it is we have lots of them; the bad 

news is we don’t have one. 

Mr. AFTERGOOD. Well, I think some investigation is required to 

understand the dynamics behind that, why did it unfold the way 

it did, why are people not putting much of their information in it 

and so on. 

ccoleman on PROD1PC77 with HEARING

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So I think the question is a good one to ask. I think it needs to 

be fleshed out with some more research into why the system behaves the way that it does. I don’t personally know the answer. 

Ms. FUCHS. One thing I might suggest in considering those types 

of suggestions is also speaking with Ambassador MacNamara, who 

is the program manager of the information-sharing environment 

which is housed at the ODNI, because he is—one of the things that 

he is looking at is how to deal with unclassified information that 

should be shared, but is also getting caught up in similar things, 

similar types of problems. So I just wanted to add that as a suggestion because they have some very useful ideas. 

And I just wanted to respond on the duration of classification. I 

mean, I think that our perspective is that automatic declassification, which was in Executive Order 12958 and was retained what 

it was amended, set a very important standard and forced agencies 

to confront the issue of old information. And so I think that limiting the duration of classification is an important standard. 

My understanding is that it is sometimes confusing when there 

is multiple time periods, and so it may be, I think as Mr. Leonard 

suggested, that some work needs to be done to figure out how to 

do that effectively. But it is a very, very effective and useful tool. 

Mr. ISSA. My time has expired, but I was speaking to the fact 

that, for example, Presidential classifications don’t expire even 

when a President does; that we have, in fact, deep dark secrets for 

very long period of time without needing a new signature, a new 

initial. And I, for one, assume that the—and I will just give you 

a little life briefing from my background. I found that if you didn’t 

open up the HR manual in your company and you didn’t make 

chief executives initial it once a year, they didn’t know what was 

in it, and ultimately they didn’t make the changes that needed to 

be made. 

And so that is the reason that I personally will be supportive of 

any effort we can have to get well below 25 years, and that the 

higher a classification, the more often there needs to be an affirmative act to say this needs to be kept as a secret not just from the 

public, which I realize is part of today’s hearing, but from the interagency process, which is what will protect us from the next 9/11 

if we have it and will cause another fiasco if we don’t. 

Thank you, Madam Chair. 

Chairwoman ESHOO. Thank you for your excellent questions and 

your observations. This is what makes a hearing one of the most 

important tools for Members of Congress. 

I would like to ask Ms. Fuchs a question if I might—and then 

I am going to go to Mr. Holt, and then I think we are going to wrap 

up because we have been at this for almost an hour and a half, and 

it has been a very, very worthwhile hearing, and you have made 

it so. In your written testimony, Ms. Fuchs, you talked about the 

fact that the law requires release. And something that jumps out 

is that under FOIA, the agencies are supposed to respond to a request for documents within 20 business days, and yet it took FOIA 

delays of up to 20 years to actually bring out the information. 

What is it in the system that allows information that should 

move and be available in 20 days take 20 years? 

ccoleman on PROD1PC77 with HEARING

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Ms. FUCHS. Well, there is a lot of excuses that the agency has 

for why it takes time. Certainly some of it is resources, and certainly it is not a priority to respond. The agencies—— Chairwoman ESHOO. Most people in the country think the government has adequate resources, don’t you think? 

Ms. FUCHS. Well, the agencies that take the longest time do tend 

to be the agencies that have the most sensitive information, but 

that is not always so. Some agencies disregard their information 

and never respond to the requests. They destroyed them indeed before responding to them. 

We have had several letters from the Treasury Department asking us if we could resend FOIA requests that are a decade old because they destroyed them and never responded to them. So some 

of it is disregard for the public. 

But I think that—there is actually a bill pending right now in 

Congress, it has passed in the House and it is pending in the Congress, that tries to make an effort to put more pressure on agencies 

to respond, because the only thing that the public can do is to go 

to court and sue. 

Chairwoman ESHOO. Do you think it is an effective piece of legislation to effect the outcome that you described in your written testimony? 

Ms. FUCHS. I think the legislation is designed to have more accountability about the delay, and, in fact, by exposing the delay, 

that is part of the reason the CIA released this. We actually got 

a call from the CIA before it was released and they said, you know 

what? All of the publicity you made about our delays and our backlogs has really gotten us to look at them, and they told us they reduced their backlog of 120 old cases down to 60, this being one of 

the cases. I think exposure of the problem has been very significant. 

Chairwoman ESHOO. I think the exposure on both kind of bookends in this. 

And I started out by highlighting that because the key agencies 

in our government did not share information. We know what the 

upshot of that was. And then the other bookend that we have just 

talked about. I think for the average person in the country, when 

they heard the word ‘‘declassified,’’ it means let us just spill our secrets. It is much broader than that. It is much broader than that. 

And that is really not what this hearing is about. 

But I restate it because I think that the naive citizen side of me 

moves to that sensibility when I hear the word ‘‘declassified.’’ And 

its action, as I said, it is far broader. I think it is really important 

to examine. 

I think you have been outstanding witnesses. 

Let me ask Mr. Holt if he has more questions. 

Mr. HOLT. I do. 

Just to follow on Ms. Eshoo’s comments about freedom of information. The classification for official use only seems to be used on 

occasion to shield things from freedom of information release. Do 

you think, in fact, it has been used that way? Is that an appropriate use of that classification? 

Ms. FUCHS. I guess I would say that I do believe that it has been 

used that way, and it is an inappropriate use of that classification. 

ccoleman on PROD1PC77 with HEARING

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I mean, ‘‘for official use only’’ is something that agencies put on 

their records as a matter of managing their records within the 

agency. And I think it is perfectly acceptable for them to come up 

with ways to decide how to disseminate the records in the agency. 

But when it comes to a FOIA request, they have to look at the contents, not the label, and decide whether or not it should be disclosed to the public. 

Mr. HOLT. Regardless of whether it is for official use only or——

Ms. FUCHS. Almost every record they are creating is for official 

use. It is for the agency’s business. When they create things for 

public use, they put them on their Web site and inform the public 

and help the public. But the fact it is for official use only is meaningless when it comes to the FOIA. 

Mr. HOLT. Earlier you mentioned the Atomic Energy Act. 

How well do you think that classification system has worked? 

What do you think of the idea of Born Secret as a category, and 

doesn’t that lead to some kind of curious retroactive classifications 

that are, it seems to me, sometimes nonsensical? And you can explain maybe what you mean by retroactive classifications. 

Mr. AFTERGOOD. Well, the answer to the question really depends 

on how broad a framework you want to put it in. The purpose of 

the atomic energy classification system is essentially to minimize 

nuclear weapons proliferation. Arguably it has done a fair to middling job of achieving that goal, you know, over the past 60-plus 

years. It has not been perfect. And in any event, much of the 

knowledge which it was designed to protect has been independently 

generated or replicated outside of the confines of the restricted data 

system. 

How well has it worked? You know, there have been different 

eras where it has been horribly abused. A decade ago we had a big 

revelation of human radiation experiments conducted under a cloak 

of atomic energy secrecy. There have been enormous backlogs. 

There still are many hundreds of millions of pages of restricteddata documents awaiting processing. 

You know, I would say it suffers from many of the same 

pathologies that the regular classification system does, and it requires much of the same oversight that the regular classification 

system does and hasn’t really gotten it. 

Mr. HOLT. Any comments about the kind of Born Secret or retroactive classification? 

Mr. AFTERGOOD. The term ‘‘Born Secret’’ does not literally appear 

in the Atomic Energy Act, but it refers to the idea that any information generated, wherever it may be, that is within the confines 

of the Atomic Energy Act is controlled by it. 

Mr. HOLT. The reason I am asking that is to find out whether 

that concept should apply to sources and methods in the Intelligence Community. 

Mr. AFTERGOOD. No. I think it is a dangerous concept that can 

be easily abused, and it is not a good model. 

Mr. HOLT. Either of you? Any comments on this? 

Mr. LEONARD. I am—I am a long advocate that classification 

should be an act of discretion and represent informed judgment. 

So——

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Mr. HOLT. Now, what about declassification? Should that be 

automatic? Is a 25-year period appropriate? I mean, if the actual 

declassification should be discretionary, should there be automatic 

declassification? 

Mr. LEONARD. Yes. Again, taking off the table which—again, the 

human source identity, cryptography, those types of things. The 

vast amount of information is time-sensitive, and the sensitivity of 

it is entitled to the passage of time. 

Mr. HOLT. And should that time period be discretionary, or 

should we have a flat decade, two decades? 

Mr. LEONARD. The current Executive Order isn’t discretionary 

because it says information will be declassified as soon as it no 

longer meets the standard of declassification irrespective of whether it is 25 years old or 2 years old. So the pull there and the challenge is to how to find a way to make it effective. 

Mr. HOLT. Under Executive Order 12958, it is required that the 

executive branch keep data, make data available about what is 

classified and how it is kept and that sort of thing. There have 

been revisions of this over the years, or at least one revision I know 

of, and I think there is another revision under consideration. 

What is the purpose of that, do you think, or what is—what 

should be the purpose of that recordkeeping and disclosure to the 

appropriate agency then to——

Mr. LEONARD. From my perspective, Congressman, it boils down 

to this: The purpose of the framework is to protect the substance 

of the information. And clearly the substance of the information is 

what we need to keep secret. 

The way that system works, though, is that traditionally the 

process that we use to keep it secret has been transparent. We 

openly publish the rules that we follow. We openly publish the 

number of times that that process is invoked. We openly publish 

the number of individuals who are assigned the authority to invoke 

that. 

When you start taking that process and putting that process behind a cloak of secrecy, I really believe we are starting to—it is 

very unfortunate, because what makes this system work is not the 

safe, it is not the alarms, it is not the markings on documents. 

What makes it work is the faith and confidence of the cleared community that is dependent to make it work day in and day out. And 

what makes it work is the faith and confidence of the American 

people that the government makes the decisions and applies this 

process that is being done uniformly, consistent and in accordance 

with standards. 

And if we evolve to a system where the process becomes secret 

in and of itself, I think that will degrade that confidence and degrade both the cleared communities and the American people’s confidence and the integrity of the process. 

Mr. HOLT. Now, the disclosure of the information of the processes 

and about how classified information is kept and so forth, the disclosure of the national archives and records, to whom should that 

apply? 

I know there is a dispute right now, you know, to whom the Executive Order actually does apply, and the Vice President is saying, 

it does not apply to me. But so we can talk about how this is actuccoleman on PROD1PC77 with HEARING

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ally written and how it has applied. But in order to accomplish 

what we are trying to accomplish, what you think that it should 

accomplish, to whom should it apply? Everyone? 

Mr. LEONARD. I think—I think from the perspective of maintaining the integrity and the effectiveness of the system, yes, it has to 

apply to everyone, because quite frankly, when it applies to some 

and not to others, it degrades the overall integrity, and people start 

to wonder, well, you know, why does it apply to me but not somewhere else? 

Mr. AFTERGOOD. I think the problem is actually even worse than 

you are suggesting. From my point of view—— Mr. HOLT. I am trying to be diplomatic. 

Mr. AFTERGOOD. I think it is fine if the Executive Order says 

that the Vice President must report his classification activity to 

Mr. Leonard, as Mr. Leonard believes that it does. I think it would 

also be fine if the President were to design an order of, I don’t want 

this reporting requirement to apply to the Office of the Vice President and amended the order accordingly. 

What is not fine, however, is for the Vice President to simply set 

aside the literal, the plain-text reading of the Executive Order and 

to defy it. 

What is also not fine is for the Attorney General, who is required 

by the Executive Order to adjudicate disputes over the interpretation of the Executive Order, to abstain and to be silent. 

Mr. HOLT. So you don’t think there is ambiguity that needs to 

be resolved legislatively? You think it is unambiguous? 

Mr. AFTERGOOD. Mr. Leonard thinks it is unambiguous, and he 

is the official who is designated by the President to implement and 

oversee the Executive Order. He could be wrong. The Attorney 

General could say he is wrong. But we have got a situation where 

the Executive Order is, in effect, being ignored, and that is dangerous because it undermines the integrity of the whole system. 

I think, you know, if the President were to amend the Executive 

Order and say the Vice President is not subject—or if the Attorney 

General were to say, I have determined that the Vice President is 

not subject, then the integrity of the system would be preserved. 

Right now it is in danger of being just undermined. 

Mr. LEONARD. I think it is important, this point is important, at 

least with respect to any issues my office may have raised. I have 

never raised any issues with the issue of the Vice President, the 

issues that have been raised. 

Chairwoman ESHOO. Isn’t that issue the other way around? 

Mr. LEONARD. The issue has been with respect to the Office of 

the Vice President, the public servants just like me who——

Mr. HOLT. I was using shorthand. 

Mr. LEONARD. But I think it is an important distinction because 

there is—you know, for example, the President has a National Security Adviser and a National Security Council staff who advises 

him on national security matters, and that activity has routinely 

been transparent in its reports and what have you. 

And the OVP does an analogue to that. There is a National Security Adviser and people who work along those lines as well, too. So 

that is one of the challenges of that, in my own mind, is trying to 

square the two in terms of understanding how they differ. 

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39 

Mr. HOLT. And the National Security Adviser apparatus in the 

President’s office has been transparent in previous administrations 

also. 

Mr. LEONARD. In previous administrations also. 

Mr. HOLT. And the Vice President’s analogue has been transparent in previous administrations. 

Mr. LEONARD. And up until 2002 in this administration. 

Ms. FUCHS. I just wanted to add, speaking as a citizen, I mean, 

Mr. Aftergood said he thought it would be fine for the President to 

exclude some offices from these requirements of the Executive 

Order, but, frankly, I have always understood the Information Security Oversight Office in part trying to make sure that real secrets 

are properly protected. And so to me, as a policy matter, it seems 

like it makes a lot more sense to make everyone report and require 

everyone to be subject to inquiry as to whether they are, in fact, 

protecting secrets properly. 

I am of an advocacy group that wants to know what the government is doing, but we don’t want the real secrets to get out either. 

We want proper protection for things that should be secure and 

open with respect to things that are not sensitive. 

Mr. HOLT. That is a good note for me to end my questioning. 

I want to thank you all for some good insights, some things I 

think we can work with, and I thank the Chair for organizing this. 

Chairwoman ESHOO. Thank you, Mr. Holt, who is always 

thoughtful in his questions and drills down, and then the experts 

respond in kind. 

So I want to thank each one of you. I think this has been a highly worthwhile hearing. I have learned a great deal myself, and I 

think that, as Mr. Aftergood said, there are clustered—there is a 

cluster of problems, but there is an overlap in terms of the solutions. And I quote that because I think that is—that you have 

given us excellent proposals for us to address the different concerns 

that have been raised during the hearing. 

The issue of beginning with an NIE at the NIE Council, the role 

of the IGs inside the respective agencies. I am a bit more confused 

now about the Executive Order relative to the executive branch 

and how the Office of the Vice President has somehow separated 

themselves from this Executive Order. I am not quite sure who is—

how that is reviewed or addressed, but maybe we can leave that 

to another day. 

Mr. HOLT. And, Madam Chair, let me just say, on that subject, 

I certainly don’t agree with the Vice President, Director Leonard. 

that your agency should be abolished. 

Chairwoman ESHOO. Ditto. Very good. 

Mr. HOLT. Thank you, Madam Chair. That is for the record. 

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40 

Chairwoman ESHOO. So you have been most helpful to us. I hope 

that we can come back and extract more ideas and information 

from you either in the hearing setting or our staff working with 

you, and as I use the word ‘‘staff,’’ I would like to acknowledge the 

important role, key roles, that they play really. Without them we 

could not do the kind of work, quality of work that we hope to 

produce for the American people both for the Minority side and the 

Majority side. We are all in this together. 

So with that, this hearing is adjourned. 

[Whereupon, at 2:40 p.m., the subcommittee was adjourned.] 

Æ 

ccoleman on PROD1PC77 with HEARING