-15 information met one of the seven classification categories "35 was not to be classified unless "its unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security." [Emphasis added.] It provided for automatic declassification routinely after six years; only officials with "Top Secret" Security clearance classify a document for more than "twenty years". Finally, it established a presumption such that "[i]f there is a reasonable doubt which designation is appropriate, or whether the information should be classified at all, the less restrictive designation should be used, or the information should not be classified."37 [Emphasis added.] 36 Executive Order 12356 reverses this trend toward openness by significantly altering or eliminating each of the earlier systems' major features. The new order eliminates the balancing test: no longer must classifiers weigh the public's need to know against the need for classification. In addition, the threshold 34 The categories were: "a) military plans, weapons or operations; b) foreign government information; c) intelligence activities, sources or methods; d) foreign relations or foreign activities of the U.S.; e) scientific, technological or economic matters relating to national security; f) programs for safeguarding nuclear materials or facilities; or g) other categories of information which require protection against unauthorized disclosure." 36 Id., Sec. 1; 1-4 Duration of Classification. Also, there is Id., Sec. 1; 1-1 Classification Designation, 1-101. -16 standard for classification has been reduced. Heretofore, the 38 The new classifier had to show "identifiable damage" to the national security. The new executive order leaves much more room for discretion: it demands only that the classifier have a reason39 able expectation of damage to the nation's security." order also eliminates automatic declassification, requiring that information remain classified "as long as required by national security consideration." Finally, the presumption in favor of openness is reversed. Now, "[i]f there is a reasonable doubt about the need to classify information, it shall be safeguarded as if it were classified...and [i]f there is a reasonable doubt about the appropriate level of classification it shall be safeguarded at the higher level of classification..." ..40 41 Secondary features of the security classification system have also undergone extensive revision in Executive Order 12356. In the areas of basic scientific research and reclassification, changes have taken place. Under both the new and the old executive orders, basic scientific research information unrelated to 39 E.O. 12356, Preamble: "Information may not be classified under this Order unless its disclosure reasonably could be expected to cause damage to the national security." 40 Id., Sec. 1.4(a), Duration of Classification. Id., Sec. 1.1(c). -17 national security is exempt from classification.42 However, the initial drafts of the new order did not include the basic re43 In addition, the previous order expressly search exemption. limited the government's interest in non-governmental sponsored a matter that the new order leaves to admini basic research' 44 strative discretion. Under President Carter's Order, "[c]lassification may not be restored to documents already declassified and released to the 45 public...". But under the new order, declassified information may be reclassified if "the information requires protection in the interests of national security; and [if] the information may be reasonably recovered."46 Acting under this clause, the Reagan Administration unsuccessfully attempted in 1982 to recover documents previously released to a private researcher about electronic surveillance carried out by the CIA and NSA against anti-war activists in the 1970's. The documents had been provided to 42 43 44 information Both Orders state: "Basic scientific research "Academic Freedom and the Classified Information System", Supra, note 31, at 258. E.O. 12065, Sec. 1-603: "A product of non-government research and development that does not incorporate or reveal classified information to which the producer or developer was given prior access may not be classified under this Order until and unless the government acquires a proprietary interest in the product." E.O. 12356, Sec. 1.6(c). -18 author James Bamford, under a Freedom of Information request made 47 in 1979. Executive order 12356 provides that "information may be classified or reclassified after an agency has received a request for it under the Freedom of Information Act or the Privacy 48 "1 Act...' In contrast, the earlier order provided that "no document originated on or after the effective date of this Order may be classified after an agency has received a request for the 49 document under the Freedom of Information Act... Given the bent toward secrecy exhibited by the many changes in the security classification system, scholars now fear that "[a]cademic research not born classified may, under this order, die classified."50 The new order gives unprecedented authority to government officials to intrude upon academic research by imposing classification restrictions on areas of research after projects have been undertaken in those areas. The new order appears to allow classification to be imposed at any stage of a research project and to be maintained for as long as government officials deem prudent. Thus, the Order could inhibit academic researchers from making long-term intellectual investments in non-classified projects with features that make them likely 47 "The Rise of Government Controls on Information, Debate and 50 "Academic Freedom and the Classified Information System", Supra, note 31, at 258. In the area of export regulation, both military and civilian, statutory controls have been imposed over scientific communication related to basic research. 52 These controls affect basic research through their definition of the terms "technological data" and "export". Information subject to export controls need not be classified, so long as it falls within the definition of "technological data" and is to be "exported". The Export Administration Regulations (EAR), promulgated under the Export Administration Act of 1979, define "technological data" as "information of any kind that can be used, or adapted for use in the design, production, manufacture, utilization, reconstruction of articles or materials. The data may take a tangible form, such as a model, prototype, blueprint, or an operating manual; or they may take an intangible form such as or 51 52 Testimony of Dr. F. Karl Willenbrock, Chairman of the IEEE Military Exports are regulated by The Arms Export Control |