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: http://www.fas.org/sgp/news/2003/03/wh032503.html.)
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 (http://www.archives.gov/isoo)
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:
www.fas.org/sgp/bush/eo13292inout.html.)
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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