Much of Washington is fixated for varying reasons on the release of the report from Michael Horowitz, the Justice Department’s Inspector General, on the origins of the FBI’s probe into Russian interference with the 2016 election. Yet few have focused on an unusual and consequential element of the dynamic surrounding the Justice Department’s reviews of the 2016 election: how Attorney General William Barr is wielding the unprecedented authority delegated to him by President Trump to unilaterally declassify information under the control of Intelligence Community agencies. Traditionally, presidents have delegated classification and declassification authority to various positions within the executive branch regardless of the particular individuals holding those positions. But, in Barr’s case, the authority delegated to him by Trump is personal, meaning that it “shall terminate upon a vacancy in the office of Attorney General” and “is not delegable” by Barr to anyone else. This unprecedented act is thus highly suspect and demands that Congress respond by asserting its rightful authority regarding classification issues—an authority greater than is often recognized.
In one regard, subjecting classification decisions made by executive branch agencies to independent review often demonstrates how agencies have kept information secret for reasons other than safeguarding the national security. For example, in 1995 President Bill Clinton established (and since then every successor president has continued) the Interagency Security Classification Appeals Panel (ISCAP), which is delegated presidential authority to decide on appeals by persons who have filed challenges to agency classification decisions. Since the ISCAP’s initial decision in 1996 through the end of FY17 (the most recent year for which data is available), agency decisions to retain the classified status of requested information have been overridden by the panel, either in whole or in part, 75% of the time. Only once has an ISCAP decision to declassify specific information been appealed directly to the president by an agency head. In that case, President Obama directed the declassification and release of portions of a President’s Daily Brief over the objections of the CIA.
While the success of the ISCAP might speak in favor of Trump’s similar delegation of declassification authority to Barr, it actually highlights its principal shortcoming. One of the reasons the ISCAP is effective in overriding agency classification decisions is that it operates under well-established and transparent by-laws, rules and procedures published under the Administrative Procedures Act. These procedures stand in stark contrast to the ad hoc nature of the authority that Trump has delegated to Barr as an individual, who in turn has given no indication that he intends to exercise that authority in anything but ad hoc fashion. Furthermore, as evidenced by Trump’s unprecedented decision in September 2018 to declassify portions of the FBI’s application for a Foreign Intelligence Surveillance Act (FISA) court warrant regarding Carter Page, this administration has demonstrated a willingness to use declassification authority for purely partisan purposes.
An absolute Presidential power?
In response to criticism regarding declassification decisions and disclosures of classified information, Trump has repeatedly asserted that he has “the absolute right” to declassify information at will. While the president is correct that he has the right to declassify, it is not necessarily absolute. As recognized by the legislative and judicial branches of the government, the president’s authority to classify information in the interest of national security derives from his Article II constitutional authority as commander-in-chief and chief executive responsible for foreign relations. The Supreme Court decision known as Department of the Navy v. Egan is often used to assert unchecked presidential authority over classified information However, at its core the Egan decision was primarily an interpretation of congressional statutory intent arising out of a dispute between two executive branch entities. Accordingly, when Trump uses terms normally associated with absolute monarchies and authoritarian regimes in order to politicize a critical national security tool, Congress can and must assert its own constitutional authority to provide the check and balance envisioned by the Founders and, if needed, force the Supreme Court to reexamine this issue. At the same time, Congress can also preserve the benefits derived from the independent review of classification decisions made by intelligence community and other executive branch agencies—when such independent review is done methodically, rather than personally and ad hoc.
Room for Congress
The ability of Congress to insert itself in matters of classification is not without precedent. Pre-Egan, Congress very much involved itself in classification matters with passage of the Atomic Energy Act of 1954. Post-Egan, Congress passed the President John F. Kennedy Assassination Records Collection Act of 1992, which included the establishment of the Assassination Records Review Board (ARRB) to consider and render decisions when a U.S. government agency sought to postpone the disclosure of classified or otherwise sensitive assassination records. Finally, in 1994, Congress created the Commission on Protecting and Reducing Government Secrecy (also called the “Moynihan Commission,” after its chairman, Senator Daniel Patrick Moynihan). The very first recommendation of this bipartisan panel was for Congress to enact a statute “to improve the functioning of the secrecy system and implementation of established rules.”
In the final analysis, rather than allowing this or a future president to invest in a single individual the authority to make ad hoc classification and declassification decisions based upon purely partisan motives as opposed to national security considerations, Congress can instead specifically provide for a deliberate, considered and informed process. Such a process could include an independent panel of experts operating under transparent rules and procedures empowered to review classification and declassification decisions of the executive. As an example, Congress can look to previous models such as the ARRB (mentioned above) as well as the similarly statutorily created Public Interest Declassification Board, which had members appointed by both the president and congressional leadership. Potential enhancements to this board’s role and authority are one place where Congress can start to counter assertions of unchecked executive authority by this and future presidents. And in doing so, Congress would force the Supreme Court to reexamine whether it erred in finding classification and declassification the executive’s sole prerogative—when, as a matter of both law and policy, it should be understood as properly shared.