By Cliff Montgomery – Jan. 30th, 2018
“The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power” regarding the classification of national security information, declared a little-known Congressional Research Service (CRS) study released in May 2017.
“This language has been interpreted by some to indicate that the President has virtually plenary [i.e., absolute] authority to control classified information,” the CRS report chillingly adds. This apparently is because the President may deem any government activity to be a matter of ‘national security’.
Below, quotes the second part of the CRS study’s “Background” section. On Saturday, it published part one.
“Most recently, Congress passed the Reducing Over-Classification Act, P.L. 111-258 (2010), which, among other things, requires executive branch agencies’ inspectors general to conduct assessments of their agencies’ implementation of classification policies.
“Congress occasionally takes an interest in declassification of specific materials that might be deemed essential for some public purpose. The procedural rules of both the Senate and House provide a means for disclosing classified information in the intelligence committees’ possession where the intelligence committee of the respective house (either the House Permanent Select Committee on Intelligence (HPSCI) or the Senate Select Committee on Intelligence (SSCI)) determines by vote that such disclosure would serve the public interest.
“In the event the intelligence committee votes to disclose classified information that was submitted by the executive branch, and the executive branch requests it be kept secret, the committee is required to notify the President. The information may be disclosed after five days unless the President formally objects and certifies that the threat to the U.S. national interest outweighs any public interest in disclosing it, in which case the question may be referred to the full chamber.
“[But] It does not appear that either house has invoked its procedure for disclosing classified information. In fact, in at least one instance, Congress deferred to the executive branch even with respect to materials prepared by Congress, albeit perhaps using documents obtained from the executive branch.
“A recent example involved the 28 pages of classified text from the report of the Joint Inquiry of the HPSCI and the SSCI into the Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001.
“The report of the Joint Inquiry was completed in 2002 and referred to the executive branch for a classification review, which determined that three of the four parts of the report could be disclosed to the public, but that the disclosure of a portion of the report would pose national security risks.
“Despite calls for the release of the 28 pages by some Members and former Members, and legislative proposals to mandate disclosure, the intelligence committees awaited a declassification review by the intelligence community before releasing the material in redacted form.
“One notable instance in which Congress sought and procured the declassification of government information involved records pertaining to prisoners of war and personnel listed as missing in action after the Vietnam War (‘POW/MIA’).
“Congress initially required certain agencies to provide information regarding ‘live-sightings’ of such personnel to next of kin, with the exception of ‘information that would reveal or compromise sources and methods of intelligence collection.’
“Congress subsequently directed the Department of Defense (DOD) to create an accessible library of documents related to POW/MIA, excluding records that would be exempt under certain provisions of FOIA.
“The Senate Select Committee on POW/MIA Affairs considered invoking the procedural rule described above to declassify relevant documents, but deemed that untested avenue unsuitable because it would have required the Committee to identify the documents beforehand and to have had them in its possession. Furthermore, enforcement of the measure would have required the full vote of the Senate.
“Instead, Members wrote to President George H. W. Bush requesting an executive order to accomplish the declassification of relevant records. It was followed by a resolution expressing the sense of the Senate that the President should expeditiously issue an executive order for the declassification, without compromising national security, of relevant documents. President Bush complied.
“More recently, Congress has directed the President or agency heads to undertake a declassification review of records pertaining to specific matters and to release them as appropriate.
“For example, Congress in 2000 directed the President to ‘order all Federal agencies and departments that possess relevant information [about the murders of churchwomen in El Salvador] to make every effort to declassify and release’ them to victims’ families.
“In 2002, Congress directed the Secretary of Defense to submit to Congress and to the Secretary of Veterans Affairs ‘a comprehensive plan for the review, declassification, and submittal’ of all information related to Project 112—a series of biological and chemical warfare vulnerability tests conducted by the Department of Defense—that would be relevant for that project’s participants’ health care.
“In 2004, Congress directed the Secretary of Defense to ‘review and, as determined appropriate, revise the classification policies of the Department of Defense with a view to facilitating the declassification of data that is potentially useful for the monitoring and assessment of the health of members of the Armed Forces who have been exposed to environmental hazards during deployments overseas.’
“In 2007, Congress directed the Director of the Central Intelligence Agency (CIA) to make public a version of the executive summary of the CIA Office of the Inspector General report on ‘CIA Accountability Regarding Findings and Conclusions of the Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001,’ declassified ‘to the maximum extent possible, consistent with national security [procedures].’
“And in 2014, Congress directed the Director of National Intelligence (DNI) to conduct a declassification review of documents collected during the raid that killed Osama bin Laden, requiring a justification for materials that remain classified after the review.”
