The CIA’s Covert Operation Against Declassification Review and Obama’s Open Government

This very important Document Friday features a very obscure document, just two pages (59033 and 59034) that the Central Intelligence Agency printed in the Federal Register on Friday, 23 September 2011 –without a notice for public comment. These regulations, which the CIA began enforcing in December, are a covert attack on the most effective tool that the public uses to declassify the CIA’s secret documents, Mandatory Declassification Review (MDR).

Overnight, without public comment or notice, the Agency decreed that declassification reviews would now cost requesters up to $72 per hour, even if no information is found or released. To even submit a request –again, even if no documents are released— the public must now agree to pay a minimum of $15.

Mandatory Declassification Review is an extremely powerful tool because it eventually allows declassification decisions to be removed from the control of the overly-secretive CIA and decided by an independent, rational, democratic, outside entity. First, the requester must request a document under MDR and exhaust his appeal. Then, according to President Obama’s executive order on classified information, he can invoke what is sometimes called the “secrecy court of last resort,” the Interagency Security Classification Appeals Panel (ISCAP). ISCAP has certainly proven the most effective means that the National Security Archive has used to pry the release of documents from the CIA.

ISCAP is composed of senior-level representatives appointed by the Departments of State, Defense, and Justice, the National Archives, the Office of the Director of National Intelligence, and the National Security Advisor. These senior representatives review classified documents, and vote to determine if some or all of the information can be released without harming US national security –majority vote rules. According to the most recent US government report on classification, these officials have overruled agencies –certainly including the CIA– in more than 65 percent of their decisions since 1996. And now, to avoid this accountability and oversight, the CIA is trying to price users out of turning to ISCAP.

MDR and ISCAP are certainly more effective tools for requesting documents from the CIA than the Freedom of Information Act (FOIA). After the CIA denies a FOIA request and a FOIA appeal, requesters have the right to go to court, but that’s expensive and risky business– judges are frequently overly-deferential to dubious CIA claims for the need of secrecy. (For one example, see the CIA’s recently brief to a US federal judge stating that it would not release a volume of a three-decade-old history of the 1961 Bay of Pigs debacle because it would “confuse the public.” For another, see the CIA’s tooth-and-nail fight against releasing a 95-year-old invisible ink recipe, available on google scholar.)

To prevent requesters from an independent review of their requests by ISCAP, the CIA amended its regulations –without allowing for public comment, as is required the Administrative Procedure Act– to allow charging astronomically high fees to process MDR requests. Even if no documents are found or released, the CIA’s rules now allow it to charge up to $72 dollars per hour of review time. Furthermore, each requester must now agree to pay a minimum of $15 dollars before the CIA will even accept their request — again, that’s regardless if the CIA finds or releases anything.

Compare these exorbitant fees to those charged for FOIA requests. Before the CIA surreptitiously changed its regulations, its MDR fee structure was “in the same amount and under the same conditions as specified in [the Freedom of Information Act] 32 CFR part 1900.” The Freedom of Information Act stipulates that public interest, educational, journalism, and other fee waivers must be granted by agencies where applicable. Under the bipartisan 2007 Open Government Act, Senators Leahy and Cornyn crafted amendments to FOIA which now force agencies to forfeit their right to collect some FOIA processing fees when they miss their processing deadline, an extremely common occurrence at the Agency. The CIA’s new MDR regulation, which allows it to claim that unlike FOIA, “there are no fee categories in processing MDRs” is clearly a step back for access to government information.

Furthermore, the fees the CIA is now charging for MDR reviews are astronomically more expensive than the FOIA fees charged by other agencies. And no other federal agency mandates a minimum payment, especially if no information is found or released. This was certainly not a good-faith effort to recoup costs by the CIA.

Fortunately, regulations can be repealed. Late last year, an outraged public forced the Department of Justice to withdraw a regulation that would have allowed it to lie to FOIA requesters. The condemnation of Senators Grassley, Udall, Leahy and Representative Smith forced the Department of Justice to recall its damaging regulation. Will Congress act to stop this retrograde regulation as well?

And what about President Obama –who recently pledged to the leaders of 46 other countries that he would “streamlin[e] the declassification process throughout the federal government”? What has his administration done to counter this covert, harmful, and anti-openness CIA regulation? Nothing yet. So far it appears that the CIA’s sneak attack on the”new era of open government” is flying under White House’s radar.

The more that agencies are allowed to issue covert, transparency-stifling regulations without public comment, the closer the United States looks to a “managed democracy.” The longer the White House stands on the sidelines as agencies openly defy its instructions on openness, the more it appears that the entrenched secrecy establishment of the United States really is “literally out of control.”

Let’s fight to reverse these trends, beginning with the repeal of this nefarious CIA attack on open government.