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Over-Classified and Pseudo-Classified

Testimony of Mark Agrast

Agrast testifies to Congress on making the DHS the gold standard for designating classified and sensitive information.

The following is Mark Agrast’s oral testimony before the House Homeland Security Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment for a hearing entitled “Over-Classification and Pseudo-Classification: Making DHS the Gold Standard for Designating Classified and Sensitive Information.” To download a PDF of Agrast’s full testimony, click here.

Madame Chair, Mr. Reichert, and members of the subcommittee:

My name is Mark Agrast. I am a Senior Fellow at the Center for American Progress, where I focus on civil liberties and national security issues. I previously spent over a decade on Capitol Hill.

Most Americans understand and accept the need to protect government information whose disclosure would endanger the nation’s security.

But as the 9/11 Commission found, too much secrecy can put our nation at greater risk, hindering oversight, accountability, and information sharing; concealing vulnerabilities until it is too late to correct them; and undermining the credibility of the classification system itself.

Ten years ago, the Moynihan Commission concluded that “Secrets can be protected more effectively if secrecy is reduced overall.”

Unfortunately, while the Clinton administration made much headway in reducing unnecessary secrecy, today we are moving in the opposite direction. There were nearly three times as many classification actions in 2004 as in the last year of the Clinton presidency. And while Clinton declassified nearly a billion pages of historical material, the pace has slowed to a trickle in the last six years.

Today’s epidemic of over-classification stems in part from rules that resolve all doubts in favor of non-disclosure, and in part from standards so hard to administer that even skilled classifiers often get it wrong.

Then there are the cases where material is classified only to suppress embarrassing information. Take the decision to classify the Taguba report on prisoner abuse at Abu Ghraib. A reporter who had seen a copy of the report asked Secretary Rumsfeld why it was marked secret. “You’d have to ask the classifier,” Rumsfeld said.

Or the decision to reclassify a 1950 intelligence estimate, written only 12 days before Chinese forces entered Korea, predicting that Chinese intervention in the conflict was “not probable.”

Still, despite such failures, at least there are rules for what can be classified, for how long, and by whom. The same cannot be said for the designations used by federal agencies to deny access to sensitive but unclassified information. Few of these “pseudoclassifications” have ever been authorized by Congress. They allow virtually any employee—and even private contractors—to withhold information that wouldn’t even rate a “Confidential” stamp, with few standards or safeguards to prevent error and abuse.

And they have been abused. In one case, the CIA blocked the weapons inspector from revealing the unclassified identities of companies that had engaged in the Oil for Food program with Saddam Hussein.

In another, a federal air marshal blew the whistle when TSA attempted to reduce security on “high risk” flights, and the agency retaliated by retroactively designating the material he had disclosed as Sensitive Security Information.

Last Sunday’s Washington Post described a pseudo-classification scheme invented by the Vice President. His office has been giving reporters documents labeled: “Treated As: Top Secret/SCI”—an apparent attempt to treat unclassified material as though it were Sensitive Compartmented Information—a special access designation reserved for secrets whose disclosure would cause ‘exceptionally grave damage to national security.’”

And so, Madame Chair, I commend you for your commitment to doing the oversight that is so long overdue. And I hope you won’t stop at oversight. It’s been ten years since the Moynihan Commission urged Congress to legislate the rules that protect national security information, rather than leaving it up to the executive branch to police itself. It is time for Congress to take up that challenge.

In some cases, this will require government-wide solutions. For example, Congress should reinstate the presumption against classification in cases of significant doubt—a Clinton-era policy which the Moynihan Commission urged Congress to codify. Congress also should rein in the use of pseudo-classification. At a minimum, Congress should prohibit agencies from adopting unclassified designations that are not expressly authorized, and should mandate strict standards for any designations it does authorize to minimize their impact on public access.

Better still, Congress should refrain from authorizing unclassified designations in the first place. Such powers are all too easily given, and once they are in place, it is virtually impossible to get rid of them.

Finally, Congress can take steps to reform the system one agency at a time. By initiating reforms at the Department of Homeland Security—by making DHS the “gold standard”—Congress can promote best practices throughout the system. My full statement includes recommendations to improve oversight of the classification system at DHS, and to reduce the harmful effects of pseudo-classification as well. By helping ensure that the government keeps secret only what needs to be secret, these measures would enhance both openness and security—at DHS and throughout the government. Thank you.

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