Pentagon seeks extraordinary new power to evade transparency

This post originally appeared in The Nuance, the Reporters Committee’s newsletter on legal and policy issues at the forefront of a free press. Sign up today!

The U.S. Department of Defense is seeking expansive — and troubling — new legal authority to restrict access to government information. The request comes buried in a package of legislative proposals the Pentagon submitted to Congress at the end of June. It asks to give the secretary of defense unilateral power to exempt unclassified information from disclosure under both the federal Freedom of Information Act and state public records laws.

This is a pivotal time for transparency and the press at the Defense Department. Defense Secretary Pete Hegseth is routinely attacking reporters, the Pentagon is embroiled in litigation over efforts to restrict press access to its building, and it’s been more than two and a half months since the Defense Department has held a press conference. 

On the FOIA side, the agency’s performance has been abysmal in the new administration. The government’s own data show the agency averaged 260+ days to respond to “complex” FOIA requests last year, up more than 30% from the previous year. And even when it does respond, the results are grim: Fewer than 17% of requests to the Defense Department were granted in full.  

The Pentagon is now trying to open up another front in its war on transparency by proposing a new FOIA Exemption 3 statute. If taken up and passed by Congress, it would create a new three-prong test that exempts information if it is: (1) “Controlled Unclassified Information,” or CUI, (2) “national security information,” and if (3) the secretary of defense issues a written determination that the “harm” from public disclosure outweighs the public interest in such information.

Although the proposal is dressed up in a lot of fancy language, it all boils down to one question: Does Hegseth want the information kept secret?

Let’s start with CUI, the first prong of the proposed exemption. If this term sounds familiar, that’s because it’s been in the news as part of the Pentagon’s efforts to restrict journalists’ access to the building. To briefly recap, last fall the Defense Department issued a new press pass policy the provisions of which were so odious that nearly every journalist chose to vacate their offices in the Pentagon rather than sign on. The New York Times also filed a lawsuit challenging the policy’s legality (that litigation is ongoing).

In a friend-of-the-court brief supporting The Times’s lawsuit, the Reporters Committee noted that one of the problems with the Pentagon’s policy was that it claimed the power to revoke journalists’ credentials merely for soliciting CUI and other information. That’s troubling for many reasons, including because what CUI means is both nebulous and expansive. 

The concept originated with Executive Order 13556 from President Obama. Under regulations issued by the National Archives, it’s formally defined as unclassified information “that a law, regulation, or Government-wide policy requires or permits an agency to handle using safeguarding or dissemination controls.” It applies to dozens of categories of information across the federal government, including records on water assessments, campaign funds, data sets with space applications, and agency responses to congressional oversight inquiries.

The CUI standard is already so broad that were it to be incorporated as a FOIA exemption for the Defense Department, massive amounts of important information would be yanked from the public. That would be disastrous, especially when the Defense Department is at the forefront of so many stories the public needs to know about, from the United States’ war with Iran to the targeted destruction of boats in the Caribbean and eastern Pacific. There’s a serious and pressing need for more information about these and other Defense Department entanglements, not less.  

But the proposed legislation the Pentagon sent to Congress would go even further than exempting existing CUI information. It states that “[i]n addition to any other authority or requirement regarding protection from disclosure,” the secretary of defense “may designate information as being … controlled unclassified information,” and information “so designated” is subject to the proposed exemption. By its own terms, this would give Hegseth the ability to unilaterally designate information as CUI.

But the power grab for the secretary doesn’t stop there. The second prong of the Pentagon’s proposed exemption would create a new (but equally standardless) label for material as “national security information.” The legislation defines this as information that “has been determined to require protection against unauthorized disclosure,” and that if disclosed would “reveal vulnerabilities” in defense operations that, “if exploited, would likely result in the significant disruption of, or damage of or to” Defense Department operations or programs.

The rationale for creating a new category of “national security information” is puzzling at first blush, because the Pentagon can already classify and protect information under Executive Order 13526 if it pertains to “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security,” and its “unauthorized disclosure” would cause some level of harm thereto. Properly classified records are not subject to disclosure under FOIA, so why does the Pentagon want a new definition for “national security information”?

One answer might be that classification, even though massively overused and abused by the government, still has procedural and substantive requirements. Under EO 13526, for example, records cannot be classified to “conceal violations of law, inefficiency, or administrative error,” nor can they be classified to “prevent embarrassment to a person, organization, or agency.” Classified records are supposed to be declassified over time. 

Although the proposal is dressed up in a lot of fancy language, it all boils down to one question: Does Hegseth want the information kept secret?

Those are limitations this new label lacks. Moreover, the proposed legislation makes clear that the secretary of defense has the unilateral power to “designate” information as being “national security information.” In other words, Hegseth could just decide something qualifies, without substantive or temporal restrictions. It’s super-classification in the hands of one person, and if the existing classification regime is any guide, that’s bad news for the public.

The third prong of the proposed exemption asks whether there’s been a determination from the secretary of defense that the public interest in the information is outweighed by the harm disclosure may cause to the Defense Department. The problems here are obvious; as Congress noted back in 1966 when it passed FOIA, “[n]o Government employee at any level believes that the ‘public interest’ would be served by disclosure of his failures or wrongdoings.” Leaving a so-called public interest balancing to the head of an executive branch agency will not come out in the public’s favor when the information is inconvenient for the government.  

To sum up, the Pentagon’s FOIA exemption proposal has three prongs, each of which can be satisfied if the secretary of defense says so. That’s anathema to the entire point of FOIA, which was enacted to wrestle back control over what the public knows from the total discretion of the executive branch. 

This proposal isn’t limited to the federal government, either. Any information provided to a state or local government that the secretary has “designated” to be exempt “shall not be disclosed by that State or local government,” even if a state or local transparency law requires it to be disclosed. That could have serious ramifications if, for example, there’s a dispute over who has control of a state national guard, as recently happened in California. A California Public Records Act request to state entities might be stymied by the secretary of defense “designating” relevant records as exempt.

The Pentagon’s proposal would have a devastating effect on the public’s right to know on some of the most consequential issues of the day. Congress needs to reject it out of hand.