Just When I Thought I Was Out, They PullMe Back In: Executive Power and the NovelReclassification Authority

"Conceal a flaw, and the world will imagine the worst."1I. IntroductionIn April 2006, the Washington Post uncovered a secret agreement between the National Archives and Records Administration (NARA), the Air Force, the Central Intelligence Agency (CIA), and other federal agencies to withdraw and reclassify records from NARA's publicly accessible shelves.2 This reclassification program was disclosed by an amateur historian whose "requests for formerly available documents were delayed or denied."3 After another secret reclassification agreement was discovered, the Archivist of the United States announced that he was discontinuing all secret reclassification projects within NARA.4Later that April, the Information security Oversight Office (ISOO), a branch of NARA, released a report that attempted to quantify and, as much as practicable, describe the records affected by the program of secret withdrawals.5 The ISOO auditors found that at least 25,315 publicly available records had been withdrawn6 and concluded that over a third of the withdrawn records did not clearly meet the executive branch's standards for reclassification.7 Their report illuminates a program of tremendous reach; for instance, the auditors write:[A] significant number of records that were withdrawn had actually been created as unclassified documents but were subsequently classified by CIA at the time of re-review (often SO years later) solely because they contained the name of a CIA official in the list of individuals provided a copy.8The report goes on to describe the minimalist limiting principle which informed the agencies' reclassification activities:Based upon review of withdrawn records as well as interviews with concerned personnel, it is apparent that records were often withdrawn because the agency can continue classification of a specific record, with infrequent consideration as to whether classification should be continued.9It seems reasonable to conclude from the foregoing that, having been given the opportunity, government agencies involved in intelligence and defense clandestinely, liberally, and aggressively pursued the reclassification of public documents.10At the time the first agreement was signed on March 7,2002, the handling of classified information was governed by a Clinton-era policy directiveExecutive Order 12,958, which prohibited the practice of reclassificationdirecting that "[information may not be reclassified after it has been declassified and released to the public under proper authority."11 In March 2003, just over a year later, the George W. Bush Administration (Bush Administration) amended Executive Order 12,958 to effectively reverse the above prohibition. The amended executive order provided:Information may be reclassified after declassification and release to the public under proper authority only in accordance with the following conditions:(1) the reclassification is taken under the personal authority of the agency head or deputy agency head, who determines in writing that the reclassification of the information is necessary in the interest of the national security;(2) the information may be reasonably recovered; and(3) the reclassification action is reported promptly to the Director of the Information security Oversight Office.12This reclassification authority is apparently novel and untested.13 While the first and third conditions of the amended provision recite relatively straightforward procedural safeguards restricting reclassification, the second condition describes a substantive-and substantially ambiguous-standard.14 As of this writing, the phrase "reasonably recovered" does not appear, except as a direct reference to the Amended Order, in the U.S. Code, the Code of Federal Regulations, or the Federal Register. It is an entirely novel standard in federal law. As such, the constitutional significance of the reasonably recovered provision is largely an open question, which the Executive and Judicial branches will have a role in answering. …