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Executive Order on National Security Classification Amended

After advancing through various stages of inter-agency development since mid-2001, including one in which it was "leaked" outside of the executive branch, a revised executive order governing the classification of information on national security grounds was issued at the end of last month.

On March 25, President Bush signed Executive Order 13,292, entitled "Further Amendment to Executive Order 12958, as Amended, Classified National Security Information," 68 Fed. Reg. 15,315 (Mar. 28, 2003), which has the effect of keeping in place, but amending, current Executive Order 12,958. While previous presidential administrations issued entirely new such executive orders, as complete replacements for their predecessors, the Bush Administration did not.

Thus, Executive Order 12,958 -- which was issued in 1995 during the Clinton Administration and was amended once (on a procedural point) in 1999, see Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 120 & nn.155-56 (citing Executive Order 13,142, 64 Fed. Reg. 66,089 (1999)) -- still stands (albeit with revised section numbering) as the current national security executive order to be cited by agencies under Exemption 1 of the Freedom of Information Act, 5 U.S.C. § 552(b)(1) (2000).

These amendments to Executive Order 12,958 made relatively few changes that will affect its implementation in conjunction with Exemption 1. This stands in distinct contrast to the potential impact on the FOIA of a complete replacement of an existing national security executive order, something that has taken place several times over the years and last occurred in 1995. See FOIA Update, Vol. XVI, No. 2, at 1-2.

The substantive modifications made this time primarily pertain to:

• the classification of information on "transnational terrorism" grounds, in renumbered Sections 1.1(a)(4), 1.4(e), and 1.4(g);

• similar treatment of information regarding "weapons of mass destruction," in new Section 1.4(h);

• the continued protection of information that "reveal[s] current vulnerabilities of systems, installations, infrastructures, or projects relating to national security," in new Section 3.3(b)(8);

• the reclassification of declassified information, under newly specified conditions, in new Section 1.7(c); and

• the presumption of classification for "foreign government information" (which sometimes is referred to as "FGI") in new Section 1.1(c).

Additionally, a substantive provision that precluded classification in any case of "significant doubt about the need to classify," which was contained in former Section 1.2(b) of the original executive order, has been removed by the amendment.

Most of the modifications to Executive Order 12,958 pertain to procedural matters governing the overall implementation of the government's national security information safeguarding system. Thus, the amendments address such matters as the duration of classification; classification markings; safeguarding of classified information; emergency disclosures of classified information; the date for automatic declassification of records twenty-five years or older (changed from April 17, 2003, to December 31, 2006); and the operation of the Interagency Security Classification Appeals Panel (known as "ISCAP," and pronounced as "icecap," for short), which was established in Executive Order 12,958 and will continue under these amendments. All new provisions in the amendments took effect immediately upon issuance, except for the "identification and marking" provisions of Section 1.6, which take effect upon the expiration of a 180-day implementation period.

Upon the issuance of Executive Order 13,292 to amend Executive Order 12,958, the White House issued a statement at a press briefing saying that "[t]he major features of the amended executive order are continuation . . . of the existing program of automatic declassification, which was established in the 1995 executive order [and] which has been a very successful program to ensure declassification of classified documents after 25 years, except in certain specified circumstances. . . . The central feature of the executive order, the amendments signed today by the President, is to ensure continuation of that program." (The entire transcript of the White House press briefing is available on a World Wide Web site maintained by the Federation of American Scientists and may be read at the following link:

Governmentwide oversight of the national security classification process and the implementation of Executive Order 12,958, as now amended, rests with the Information Security Oversight Office (ISOO), which is housed within the National Archives and Records Administration but works under the auspices of the National Security Council. See FOIA Update, Vol. VI, No. 1, at 1-2. ISOO regularly issues governmentwide directives for the implementation of new executive order provisions. See, e.g., Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 116-17 & n.137. ISOO's main home page on the World Wide Web ( contains much related information. (ISOO also has prepared a "comparison version" of the executive order that is interlineated to show all language modifications made to it and is now available at the following link:

This is only the fifth time that the government's executive order on national security information classification has been replaced (or, in this instance, substantially amended) since the enactment of the Freedom of Information Act more than thirty-six years ago. The executive order in effect at that time, Executive Order 10,501, was replaced by Executive Order 11,652 during the Nixon Administration in 1972. It was replaced, in turn, by Executive Order 12,065 at the beginning of the Carter Administration in 1978, by Executive Order 12,356 at the beginning of the Reagan Administration in 1982, and eventually by Executive Order 12,958 during the Clinton Administration. Such executive orders trace back to the early days of the Cold War at the end of the Truman Administration in 1951. See FOIA Update, Vol. XVI, No. 2, at 15.   (posted 4/11/03)

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