20 May 2004. See also DoD Oversight of Special Access Programs:
http://cryptome.org/32cfr159a-80.txt
19 May 2004.
This presents information on highly classified Special Access Programs (SAPs) of the US Government. Recently, the Department of Defense has been accused of setting up an SAP to pursue, capture, interrogate and assassinate terrorists, and that the program has led to abuse of prisoners of war and internees. There is a question about whether Congress was informed of this DoD program.
Original legislation and executive orders required that Congress be informed of SAPs within 30 days of their creation as well as to report on their status annually.
These documents track SAP legislation and executive orders from 1982 to September 2003, and show that since January 2002 President George W. Bush has annually challenged the congressional reporting requirement for SAPs as an infringement on executive authority.
Contents
Executive Order 12356, April 2, 1982
US Code 10USC119, December 4, 1987
Executive Order 12958, April 24, 1995
US Code 50USC435, October 5, 1999
George W. Bush Statement, January 2, 2002
George W. Bush Statement, October 25, 2002
Executive Order 13292, March 28, 2003
George W. Bush Statement, September 30, 2003
Executive Order 12356--National security information
Source: The provisions of Executive Order 12356 of Apr. 2, 1982, appear at 47 FR 14874 and 15557, 3 CFR, 1982 Comp., p. 166, unless otherwise noted.
Table of Contents
This Order prescribes a uniform system for classifying, declassifying, and safeguarding national security information. It recognizes that it is essential that the public be informed concerning the activities of its Government, but that the interests of the United States and its citizens require that certain information concerning the national defense and foreign relations be protected against unauthorized disclosure. Information may not be classified under this Order unless its disclosure reasonably could be expected to cause damage to the national security.
NOW, by the authority vested in me as President by the Constitution and laws of the United States of America, it is hereby ordered as follows:
Original Classification
Sec. 1.4 Duration of Classification.
(a) Information shall be classified as long as required by national security
considerations. When it can be determined, a specific date or event for
declassification shall be set by the original classification authority at
the time the information is originally classified.
(b) Automatic declassification determinations under predecessor orders shall
remain valid unless the classification is extended by an authorized official
of the originating agency. These extensions may be by individual documents
or categories of information. The agency shall be responsible for notifying
holders of the information of such extensions.
(c) Information classified under predecessor orders and marked for
declassification review shall remain classified until reviewed for
declassification under the provisions of this Order.
Sec. 1.6 Limitations on Classification.
(a) In no case shall information be classified in order to conceal violations
of law, inefficiency, or administrative error; to prevent embarrassment to
a person, organization, or agency; to restrain competition; or to prevent
or delay the release of information that does not require protection in the
interest of national security.
(b) Basic scientific research information not clearly related to the national
security may not be classified.
(c) The President or an agency head or official designated under Sections
1.2(a)(2), 1.2(b)(1), or 1.2(c)(1) may reclassify information previously
declassified and disclosed if it is determined in writing that (1) the
information requires protection in the interest of national security; and
(2) the information may reasonably be recovered. These reclassification actions
shall be reported promptly to the Director of the Information Security Oversight
Office.
(d) Information may be classified or reclassified after an agency has received
a request for it under the Freedom of Information Act (5 U.S.C. 552) or the
Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of
this Order (Section 3.4) if such classification meets the requirements of
this Order and is accomplished personally and on a document-by-document basis
by the agency head, the deputy agency head, the senior agency official designated
under Section 5.3(a)(1),2 or an official with
original Top Secret classification authority.
Derivative Classification
Declassification and Downgrading
Sec. 3.1 Declassification Authority.
(a) Information shall be declassified or downgraded as soon as national security
considerations permit. Agencies shall coordinate their review of classified
information with other agencies that have a direct interest in the subject
matter. Information that continues to meet the classification requirements
prescribed by Section 1.3 despite the passage of time will continue to be
protected in accordance with this Order.
(b) Information shall be declassified or downgraded by the official who
authorized the original classification, if that official is still serving
in the same position; the originator's successor; a supervisory official
of either; or officials delegated such authority in writing by the agency
head or the senior agency official designated pursuant to Section
5.3(a)(1).2
(c) If the Director of the Information Security Oversight Office determines
that information is classified in violation of this Order, the Director may
require the information to be declassified by the agency that originated
the classification. Any such decision by the Director may be appealed to
the National Security Council. The information shall remain classified, pending
a prompt decision on the appeal.
(d) The provisions of this Section shall also apply to agencies that, under
the terms of this Order, do not have original classification authority, but
that had such authority under predecessor orders.
Sec. 3.2 Transferred Information.
(a) In the case of classified information transferred in conjunction with
a transfer of functions, and not merely for storage purposes, the receiving
agency shall be deemed to be the originating agency for purposes of this
Order.
(b) In the case of classified information that is not officially transferred
as described in Section 3.2(a), but that originated in an agency that has
ceased to exist and for which there is no successor agency, each agency in
possession of such information shall be deemed to be the originating agency
for purposes of this Order. Such information may be declassified or downgraded
by the agency in possession after consultation with any other agency that
has an interest in the subject matter of the information.
(c) Classified information accessioned into the National Archives of the
United States shall be declassified or downgraded by the Archivist of the
United States in accordance with this Order, the directives of the Information
Security Oversight Office, and agency guidelines.
Sec. 3.3 Systematic Review for
Declassification.
(a) The Archivist of the United States shall, in accordance with procedures
and timeframes prescribed in the Information Security Oversight Office's
directives implementing this Order, systematically review for declassification
or downgrading (1) classified records accessioned into the National Archives
of the United States, and (2) classified presidential papers or records under
the Archivist's control. Such information shall be reviewed by the Archivist
for declassification or downgrading in accordance with systematic review
guidelines that shall be provided by the head of the agency that originated
the information, or in the case of foreign government information, by the
Director of the Information Security Oversight Office in consultation with
interested agency heads.
(b) Agency heads may conduct internal systematic review programs for classified
information originated by their agencies contained in records determined
by the Archivist to be permanently valuable but that have not been accessioned
into the National Archives of the United States.
(c) After consultation with affected agencies, the Secretary of Defense may
establish special procedures for systematic review for declassification of
classified cryptologic information, and the Director of Central Intelligence
may establish special procedures for systematic review for declassification
of classified information pertaining to intelligence activities (including
special activities), or intelligence sources or methods.
Safeguarding
Sec. 4.1 General Restrictions on Access.
(a) A person is eligible for access to classified information provided that
a determination of trustworthiness has been made by agency heads or designated
officials and provided that such access is essential to the accomplishment
of lawful and authorized Government purposes.
(b) Controls shall be established by each agency to ensure that classified
information is used, processed, stored, reproduced, transmitted, and destroyed
only under conditions that will provide adequate protection and prevent access
by unauthorized persons.
(c) Classified information shall not be disseminated outside the executive
branch except under conditions that ensure that the information will be given
protection equivalent to that afforded within the executive branch.
(d) Except as provided by directives issued by the President through the
National Security Council, classified information originating in one agency
may not be disseminated outside any other agency to which it has been made
available without the consent of the originating agency. For purposes of
this Section, the Department of Defense shall be considered one agency.
Sec. 4.2 Special Access Programs.
(a) Agency heads designated pursuant to Section 1.2(a) may create special
access programs to control access, distribution, and protection of particularly
sensitive information classified pursuant to this Order or predecessor orders.
Such programs may be created or continued only at the written direction of
these agency heads. For special access programs pertaining to intelligence
activities (including special activities but not including military operational,
strategic and tactical programs), or intelligence sources or methods, this
function will be exercised by the Director of Central Intelligence.
(b) Each agency head shall establish and maintain a system of accounting
for special access programs. The Director of the Information Security Oversight
Office, consistent with the provisions of Section 5.2(b)(4), shall have
non-delegable access to all such accountings.
Sec. 4.3 Access by Historical Researchers and Former Presidential Appointees.
(a) The requirement in Section 4.1(a) that access to classified information may be granted only as is essential to the accomplishment of authorized and lawful Government purposes may be aived as provided in Section 4.3(b) for persons who:
(1) are engaged in historical research projects, or
(2) previously have occupied policy-making positions to which they were appointed
by the President.
(b) Waivers under Section 4.3(a) may be granted only if the originating agency:
(1) determines in writing that access is consistent with the interest of
national security;
(2) takes appropriate steps to protect classified information from unauthorized
disclosure or compromise, and ensures that the information is safeguarded
in a manner consistent with this Order; and
(3) limits the access granted to former presidential appointees to items
that the person originated, reviewed, signed, or received while serving as
a presidential appointee.
Implementation and Review
Sec. 5.1 Policy Direction.
(a) The National Security Council shall provide overall policy direction
for the information security program.
(b) The Administrator of General Services shall be responsible for implementing
and monitoring the program established pursuant to this Order. The Administrator
shall delegate the implementation and monitorship functions of this program
to the Director of the Information Security Oversight Office.
Sec. 5.2 Information Security Oversight Office.
(a) The Information Security Oversight Office shall have a full-time Director appointed by the Administrator of General Services subject to approval by the President. The Director shall have the authority to appoint a staff for the Office.
(b) The Director shall:
(1) develop, in consultation with the agencies, and promulgate, subject to
the approval of the National Security Council, directives for the implementation
of this Order, which shall be binding on the agencies;
(2) oversee agency actions to ensure compliance with this Order and implementing
directives;
(3) review all agency implementing regulations and agency guidelines for
systematic declassification review. The Director shall require any regulation
or guideline to be changed if it is not consistent with this Order or
implementing directives. Any such decision by the Director may be appealed
to the National Security Council. The agency regulation or guideline shall
remain in effect pending a prompt decision on the appeal;
(4) have the authority to conduct on-site reviews of the information security
program of each agency that generates or handles classified information and
to require of each agency those reports, information, and other cooperation
that may be necessary to fulfill the Director's responsibilities. If these
reports, inspections, or access to specific categories of classified information
would pose an exceptional national security risk, the affected agency head
or the senior official designated under Section
5.3(a)(1)2 may deny access. The Director may
appeal denials to the National Security Council. The denial of access shall
remain in effect pending a prompt decision on the appeal;
(5) review requests for original classification authority from agencies or
officials not granted original classification authority and, if deemed
appropriate, recommend presidential approval;
(6) consider and take action on complaints and suggestions from persons within
or outside the Government with respect to the administration of the information
security program;
(7) have the authority to prescribe, after consultation with affected agencies,
standard forms that will promote the implementation of the information security
program;
(8) report at least annually to the President through the National Security
Council on the implementation of this Order; and
(9) have the authority to convene and chair interagency meetings to discuss
matters pertaining to the information security program.
Sec. 5.3General Responsibilities.
Agencies that originate or handle classified information shall:
(a) designate a senior agency official to direct and administer its information
security program, which shall include an active oversight and security education
program to ensure effective implementation of this Order;
(b) promulgate implementing regulations. Any unclassified regulations that
establish agency information security policy shall be published in the
Federal Register to the extent that these regulations affect members
of the public;
(c) establish procedures to prevent unnecessary access to classified information,
including procedures that (i) require that a demonstrable need for access
to classified information is established before initiating administrative
clearance procedures, and (ii) ensure that the number of persons granted
access to classified information is limited to the minimum consistent with
operational and security requirements and needs; and
(d) develop special contingency plans for the protection of classified
information used in or near hostile or potentially hostile areas.
Sec. 5.4 Sanctions.
(a) If the Director of the Information Security Oversight Office finds that
a violation of this Order or its implementing directives may have occurred,
the Director shall make a report to the head of the agency or to the senior
official designated under Section 5.3(a)(1)2
so that corrective steps, if appropriate, may be taken.
(b) Officers and employees of the United States Government, and its contractors,
licensees, and grantees shall be subject to appropriate sanctions if they:
(1) knowingly, willfully, or negligently disclose to unauthorized persons
information properly classified under this Order or predecessor orders;
(2) knowingly and willfully classify or continue the classification of
information in violation of this Order or any implementing directive; or
(3) knowingly and willfully violate any other provision of this Order or
implementing directive.
(c) Sanctions may include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.
(d) Each agency head or the senior official designated under Section 5.3(a)(1)2 shall ensure that appropriate and prompt corrective action is taken whenever a violation under Section 5.4(b) occurs. Either shall ensure that the Director of the Information Security Oversight Office is promptly notified whenever a violation under Section 5.4(b) (1) or (2) occurs.
Part 6
General Provisions
Sec. 6.1 Definitions.
(a) "Agency" has the meaning provided at 5 U.S.C. 552(e).
(b) "Information" means any information or material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government.
(c) "National security information" means information that has been determined pursuant to this Order or any predecessor order to require protection against unauthorized disclosure and that is so designated.
(d) "Foreign government information" means:
(1) information provided by a foreign government or governments, an international
organization of governments, or any element thereof with the expectation,
expressed or implied, that the information, the source of the information,
or both, are to be held in confidence; or
(2) information produced by the United States pursuant to or as a result
of a joint arrangement with a foreign government or governments or an
international organization of governments, or any element thereof, requiring
that the information, the arrangement, or both, are to be held in confidence.
(e) "National security" means the national defense or foreign relations of the United States.
(f) "Confidential source" means any individual or organization that has provided, or that may reasonably be expected to provide, information to the United States on matters pertaining to the national security with the expectation, expressed or implied, that the information or relationship, or both, be held in confidence.
(g) "Original classification" means an initial determination that information requires, in the interest of national security, protection against unauthorized disclosure, together with a classification designation signifying the level of protection required.
Sec. 6.2 General.
(a) Nothing in this Order shall supersede any requirement made by or under
the Atomic Energy Act of 1954, as amended. "Restricted Data" and "Formerly
Restricted Data" shall be handled, protected, classified, downgraded, and
declassified in conformity with the provisions of the Atomic Energy Act of
1954, as amended, and regulations issued under that Act.
(b) The Attorney General, upon request by the head of an agency or the Director
of the Information Security Oversight Office, shall render an interpretation
of this Order with respect to any question arising in the course of its
administration.
(c) Nothing in this Order limits the protection afforded any information
by other provisions of law.
(d) Executive Order No. 12065 of June 28, 1978, as amended, is revoked as
of the effective date of this Order.
(e) This Order shall become effective on August 1, 1982.
1 Editorial note: On May 7, 1982, the President
issued an order of designation (47 FR 20105, 3 CFR, 1982 Comp., p. 257) the
text of which follows:
Pursuant to the provisions of Section 1.2 of Executive Order No. 12356 of
April 2, 1982, entitled "National Security Information," I hereby designate
the following officials to classify information originally as "Top Secret",
"Secret", or "Confidential":
Top Secret
Executive Office of the President:
The Vice President
The Counsellor to the President
The Chief of Staff and Assistant to the President
The Deputy Chief of Staff and Assistant to the President
The Director, Office of Management and Budget
The United States Trade Representative
The Assistant to the President for National Security Affairs
The Director, Office of Science and Technology Policy
The Chairman, The President's Foreign Intelligence Advisory Board
The Chairman, The President's Intelligence Oversight Board
The Secretary of State
The Secretary of the Treasury
The Secretary of Defense
The Secretary of the Army
The Secretary of the Navy
The Secretary of the Air Force
The Attorney General
The Secretary of Energy
The Chairman, Nuclear Regulatory Commission
The Director, United States Arms Control and Disarmament Agency
The Director of Central Intelligence
The Administrator, National Aeronautics and Space Administration
The Administrator of General Services
The Director, Federal Emergency Management Agency
Secret
Executive Office of the President:
The Chairman, Council of Economic Advisers
The President's Personal Representative for Micronesian Status Negotiations
The Secretary of Commerce
The Secretary of Transportation
The Administrator, Agency for International Development
The Director, International Communication Agency
Confidential
The President, Export-Import Bank of the United States
The President, Overseas Private Investment Corporation
The Administrator, Environmental Protection Agency
Any delegation of this authority shall be in accordance with Section 1.2(d) of the Order.
This Order shall be published in the Federal Register.
2 Editorial note: The correct citation is Section 5.3(a).
From the U.S. Code Online via GPO Access
[Laws in effect as of January 7, 2003]
[CITE: 10USC119]
TITLE 10--ARMED FORCES
Subtitle A--General Military Law
PART I--ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 2--DEPARTMENT OF DEFENSE
Sec. 119. Special access programs: congressional oversight
(a)(1) Not later than March 1 of each year, the Secretary of Defense
shall submit to the defense committees a report on special access
programs.
(2) Each such report shall set forth--
(A) the total amount requested for special access programs of
the Department of Defense in the President's budget for the next
fiscal year submitted under section 1105 of title 31; and
(B) for each program in that budget that is a special access
program--
(i) a brief description of the program;
(ii) a brief discussion of the major milestones established
for the program;
(iii) the actual cost of the program for each fiscal year
during which the program has been conducted before the fiscal
year during which that budget is submitted; and
(iv) the estimated total cost of the program and the
estimated cost of the program for (I) the current fiscal year,
(II) the fiscal year for which the budget is submitted, and
(III) each of the four succeeding fiscal years during which the
program is expected to be conducted.
(3) In the case of a report under paragraph (1) submitted in a year
during which the President's budget for the next fiscal year, because of
multiyear budgeting for the Department of Defense, does not include a
full budget request for the Department of Defense, the report required
by paragraph (1) shall set forth--
(A) the total amount already appropriated for the next fiscal
year for special access programs of the Department of Defense and
any additional amount requested in that budget for such programs for
such fiscal year; and
(B) for each program of the Department of Defense that is a
special access program, the information specified in paragraph
(2)(B).
(b)(1) Not later than February 1 of each year, the Secretary of
Defense shall submit to the defense committees a report that, with
respect to each new special access program, provides--
(A) notice of the designation of the program as a special access
program; and
(B) justification for such designation.
(2) A report under paragraph (1) with respect to a program shall
include--
(A) the current estimate of the total program cost for the
program; and
(B) an identification of existing programs or technologies that
are similar to the technology, or that have a mission similar to the
mission, of the program that is the subject of the notice.
(3) In this subsection, the term ``new special access program''
means a special access program that has not previously been covered in a
notice and justification under this subsection.
(c)(1) Whenever a change in the classification of a special access
program of the Department of Defense is planned to be made or whenever
classified information concerning a special access program of the
Department of Defense is to be declassified and made public, the
Secretary of Defense shall submit to the defense committees a report
containing a description of the proposed change, the reasons for the
proposed change, and notice of any public announcement planned to be
made with respect to the proposed change.
(2) Except as provided in paragraph (3), any report referred to in
paragraph (1) shall be submitted not less than 14 days before the date
on which the proposed change or public announcement is to occur.
(3) If the Secretary determines that because of exceptional
circumstances the requirement of paragraph (2) cannot be met with
respect to a proposed change or public announcement concerning a special
access program of the Department of Defense, the Secretary may submit
the report required by paragraph (1) regarding the proposed change or
public announcement at any time before the proposed change or public
announcement is made and shall include in the report an explanation of
the exceptional circumstances.
(d) Whenever there is a modification or termination of the policy
and criteria used for designating a program of the Department of Defense
as a special access program, the Secretary of Defense shall promptly
notify the defense committees of such modification or termination. Any
such notification shall contain the reasons for the modification or
termination and, in the case of a modification, the provisions of the
policy as modified.
(e)(1) The Secretary of Defense may waive any requirement under
subsection (a), (b), or (c) that certain information be included in a
report under that subsection if the Secretary determines that inclusion
of that information in the report would adversely affect the national
security. Any such waiver shall be made on a case-by-case basis.
(2) If the Secretary exercises the authority provided under
paragraph (1), the Secretary shall provide the information described in
that subsection with respect to the special access program concerned,
and the justification for the waiver, jointly to the chairman and
ranking minority member of each of the defense committees.
(f) A special access program may not be initiated until--
(1) the defense committees are notified of the program; and
(2) a period of 30 days elapses after such notification is
received.
(g) In this section, the term ``defense committees'' means--
(1) the Committee on Armed Services and the Committee on
Appropriations, and the Defense Subcommittee of the Committee on
Appropriations, of the Senate; and
(2) the Committee on Armed Services and the Committee on
Appropriations, and the Subcommittee on Defense of the Committee on
Appropriations, of the House of Representatives.
(Added Pub. L. 100-180, div. A, title XI, Sec. 1132(a)(1), Dec. 4, 1987,
101 Stat. 1151; amended Pub. L. 101-510, div. A, title XIV, Secs. 1461,
1482(a), Nov. 5, 1990, 104 Stat. 1698, 1709; Pub. L. 104-106, div. A,
title X, Sec. 1055, title XV, Sec. 1502(a)(4), Feb. 10, 1996, 110 Stat.
442, 502; Pub. L. 106-65, div. A, title X, Sec. 1067(1), Oct. 5, 1999,
113 Stat. 774; Pub. L. 107-107, div. A, title X, Sec. 1048(a)(2), Dec.
28, 2001, 115 Stat. 1222.)
Amendments
2001--Subsec. (g)(2). Pub. L. 107-107 substituted ``Subcommittee on
Defense'' for ``National Security Subcommittee''.
1999--Subsec. (g)(2). Pub. L. 106-65 substituted ``Committee on
Armed Services'' for ``Committee on National Security''.
1996--Subsec. (a)(1). Pub. L. 104-106, Sec. 1055, substituted
``March 1'' for ``February 1''.
Subsec. (g). Pub. L. 104-106, Sec. 1502(a)(4), added pars. (1) and
(2) and struck out former pars. (1) and (2) which read as follows:
``(1) the Committees on Armed Services and Appropriations of the
Senate and House of Representatives; and
``(2) the Defense Subcommittees of the Committees on Appropriations
of the Senate and House of Representatives.''
1990--Subsec. (c). Pub. L. 101-510, Sec. 1461(a), amended subsec.
(c) generally. Prior to amendment, subsec. (c) read as follows:
``Whenever a change is made in the status of a program of the Department
of Defense as a special access program, the Secretary of Defense shall
submit to the defense committees a report describing the change. Any
such report shall be submitted not later than 30 days after the date on
which the change takes effect.''
Subsec. (f). Pub. L. 101-510, Sec. 1482(a)(2), added subsec. (f).
Former subsec. (f) redesignated (g).
Pub. L. 101-510, Sec. 1461(b), inserted ``and Appropriations'' after
``Armed Services'' in par. (1).
Subsec. (g). Pub. L. 101-510, Sec. 1482(a)(1), redesignated subsec.
(f) as (g).
Effective Date of 1990 Amendment
Section 1482(d) of Pub. L. 101-510 provided that: ``The amendments
made by this section [enacting section 2214 of this title and amending
this section and section 1584 of this title] shall take effect on
October 1, 1991.''
Initial Reports on Special Access Programs
Section 1132(b), (c) of Pub. L. 100-180 provided that:
``(b) Five-Year Reference Amounts.--The first report under
subsection (a) of section 119 of title 10, United States Code (as added
by subsection (a)), shall set forth--
``(1) the total amount requested in the President's budget for
each of the five previous fiscal years for special access programs
of the Department of Defense that were included in the budget; and
``(2) the total amount appropriated for each such year for such
programs.
``(c) Initial Report on Special Access Program Designations.--The
first report under subsection (b) of section 119 of title 10, United
States Code (as added by subsection (a)), shall cover each existing
special access program.''
[Weekly Compilation of Presidential Documents]
From the 1996 Presidential Documents Online via GPO Access [frwais.access.gpo.gov]
[DOCID:pd24ap95_txt-6]
[Page 634-650]
Monday, April 24, 1995
Volume 31--Number 16
Pages 631-683
Week Ending Friday, April 21, 1995
Executive Order 12958--Classified National Security Information
April 17, 1995
[Special Access Programs]
This order prescribes a uniform system for classifying,
safeguarding, and declassifying national security information. Our
democratic principles require that the American people be informed of
the activities of their Government. Also, our Nation's progress depends
on the free flow of information. Nevertheless, throughout our history,
the national interest has required that certain information be
maintained in confidence in order to protect our citizens, our
democratic institutions, and our participation within the community of
nations. Protecting information critical to our Nation's security
remains a priority. In recent years, however, dramatic changes have
altered, although not eliminated, the
[[Page 635]]
national security threats that we confront. These changes provide a
greater opportunity to emphasize our commitment to open Government.
Now, Therefore, by the authority vested in me as President by the
Constitution and the laws of the United States of America, it is hereby
ordered as follows:
Part 1 Original Classification
Section 1.1. Definitions. For purposes of this order:
(a) ``National security'' means the national defense or foreign
relations of the United States.
(b) ``Information'' means any knowledge that can be communicated or
documentary material, regardless of its physical form or
characteristics, that is owned by, produced by or for, or is under the
control of the United States Government. ``Control'' means the authority
of the agency that originates information, or its successor in function,
to regulate access to the information.
(c) ``Classified national security information'' (hereafter
``classified information'') means information that has been determined
pursuant to this order or any predecessor order to require protection
against unauthorized disclosure and is marked to indicate its classified
status when in documentary form.
(d) ``Foreign Government Information'' means:
(1) information provided to the United States Government by a
foreign government or governments, an international organization
of governments, or any element thereof, with the expectation that
the information, the source of the information, or both, are to be
held in confidence;
(2) information produced by the United States pursuant to or as a
result of a joint arrangement with a foreign government or
governments, or an international organization of governments, or
any element thereof, requiring that the information, the
arrangement, or both, are to be held in confidence; or
(3) information received and treated as ``Foreign Government
Information'' under the terms of a predecessor order.
(e) ``Classification'' means the act or process by which information
is determined to be classified information.
(f) ``Original classification'' means an initial determination that
information requires, in the interest of national security, protection
against unauthorized disclosure.
(g) ``Original classification authority'' means an individual
authorized in writing, either by the President, or by agency heads or
other officials designated by the President, to classify information in
the first instance.
(h) ``Unauthorized disclosure'' means a communication or physical
transfer of classified information to an unauthorized recipient.
(i) ``Agency'' means any ``Executive agency,'' as defined in 5
U.S.C. 105, and any other entity within the executive branch that comes
into the possession of classified information.
(j) ``Senior agency official'' means the official designated by the
agency head under section 5.6(c) of this order to direct and administer
the agency's program under which information is classified, safeguarded,
and declassified.
(k) ``Confidential source'' means any individual or organization
that has provided, or that may reasonably be expected to provide,
information to the United States on matters pertaining to the national
security with the expectation that the information or relationship, or
both, are to be held in confidence.
(l) ``Damage to the national security'' means harm to the national
defense or foreign relations of the United States from the unauthorized
disclosure of information, to include the sensitivity, value, and
utility of that information.
Sec. 1.2. Classification Standards. (a) Information may be
originally classified under the terms of this order only if all of the
following conditions are met:
(1) an original classification authority is classifying the
information;
(2) the information is owned by, produced by or for, or is under
the control of the United States Government;
(3) the information falls within one or more of the categories of
information listed in section 1.5 of this order; and
(4) the original classification authority determines that the
unauthorized dis-
[[Page 636]]
closure of the information reasonably could be expected to result in
damage to the national security and the original classification
authority is able to identify or describe the damage.
(b) If there is significant doubt about the need to classify
information, it shall not be classified. This provision does not:
(1) amplify or modify the substantive criteria or procedures for
classification; or
(2) create any substantive or procedural rights subject to
judicial review.
(c) Classified information shall not be declassified automatically
as a result of any unauthorized disclosure of identical or similar
information.
Sec. 1.3. Classification Levels. (a) Information may be classified
at one of the following three levels:
(1) ``Top Secret'' shall be applied to information, the
unauthorized disclosure of which reasonably could be expected to
cause exceptionally grave damage to the national security that the
original classification authority is able to identify or describe.
(2) ``Secret'' shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause serious
damage to the national security that the original classification
authority is able to identify or describe.
(3) ``Confidential'' shall be applied to information, the
unauthorized disclosure of which reasonably could be expected to
cause damage to the national security that the original
classification authority is able to identify or describe.
(b) Except as otherwise provided by statute, no other terms shall be
used to identify United States classified information.
(c) If there is significant doubt about the appropriate level of
classification, it shall be classified at the lower level.
Sec. 1.4. Classification Authority. (a) The authority to classify
information originally may be exercised only by:
(1) the President;
(2) agency heads and officials designated by the President in the
Federal Register; or
(3) United States Government officials delegated this authority
pursuant to paragraph (c), below.
(b) Officials authorized to classify information at a specified
level are also authorized to classify information at a lower level.
(c) Delegation of original classification authority.
(1) Delegations of original classification authority shall be
limited to the minimum required to administer this order. Agency
heads are responsible for ensuring that designated subordinate
officials have a demonstrable and continuing need to exercise this
authority.
(2) ``Top Secret'' original classification authority may be
delegated only by the President or by an agency head or official
designated pursuant to paragraph (a)(2), above.
(3) ``Secret'' or ``Confidential'' original classification
authority may be delegated only by the President; an agency head
or official designated pursuant to paragraph (a)(2), above; or the
senior agency official, provided that official has been delegated
``Top Secret'' original classification authority by the agency
head.
(4) Each delegation of original classification authority shall be
in writing and the authority shall not be redelegated except as
provided in this order. Each delegation shall identify the
official by name or position title.
(d) Original classification authorities must receive training in
original classification as provided in this order and its implementing
directives.
(e) Exceptional cases. When an employee, contractor, licensee,
certificate holder, or grantee of an agency that does not have original
classification authority originates information believed by that person
to require classification, the information shall be protected in a
manner consistent with this order and its implementing directives. The
information shall be transmitted promptly as provided under this order
or its implementing directives to the agency that has appropriate
subject matter interest and classification authority with respect to
this information. That agency shall decide within 30 days whether to
classify this information. If it is not clear
[[Page 637]]
which agency has classification responsibility for this information, it
shall be sent to the Director of the Information Security Oversight
Office. The Director shall determine the agency having primary subject
matter interest and forward the information, with appropriate
recommendations, to that agency for a classification determination.
Sec. 1.5. Classification Categories.
Information may not be considered for classification unless it
concerns:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities),
intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States,
including confidential sources;
(e) scientific, technological, or economic matters relating to the
national security;
(f) United States Government programs for safeguarding nuclear
materials or facilities; or
(g) vulnerabilities or capabilities of systems, installations,
projects or plans relating to the national security.
Sec. 1.6. Duration of Classification. (a) At the time of original
classification, the original classification authority shall attempt to
establish a specific date or event for declassification based upon the
duration of the national security sensitivity of the information. The
date or event shall not exceed the time frame in paragraph (b), below.
(b) If the original classification authority cannot determine an
earlier specific date or event for declassification, information shall
be marked for declassification 10 years from the date of the original
decision, except as provided in paragraph (d), below.
(c) An original classification authority may extend the duration of
classification or reclassify specific information for successive periods
not to exceed 10 years at a time if such action is consistent with the
standards and procedures established under this order. This provision
does not apply to information contained in records that are more than 25
years old and have been determined to have permanent historical value
under title 44, United States Code.
(d) At the time of original classification, the original
classification authority may exempt from declassification within 10
years specific information, the unauthorized disclosure of which could
reasonably be expected to cause damage to the national security for a
period greater than that provided in paragraph (b), above, and the
release of which could reasonably be expected to:
(1) reveal an intelligence source, method, or activity, or a
cryptologic system or activity;
(2) reveal information that would assist in the development or use
of weapons of mass destruction;
(3) reveal information that would impair the development or use of
technology within a United States weapons system;
(4) reveal United States military plans, or national security
emergency preparedness plans;
(5) reveal foreign government information;
(6) damage relations between the United States and a foreign
government, reveal a confidential source, or seriously undermine
diplomatic activities that are reasonably expected to be ongoing
for a period greater than that provided in paragraph (b), above;
(7) impair the ability of responsible United States Government
officials to protect the President, the Vice President, and other
individuals for whom protection services, in the interest of
national security, are authorized; or
(8) violate a statute, treaty, or international agreement.
(e) Information marked for an indefinite duration of classification
under predecessor orders, for example, ``Originating Agency's
Determination Required,'' or information classified under predecessor
orders that contains no declassification instructions shall be
declassified in accordance with part 3 of this order.
Sec. 1.7. Identification and Markings. (a) At the time of original
classification, the following shall appear on the face of each
classified document, or shall be applied to other classified media in an
appropriate manner:
(1) one of the three classification levels defined in section 1.3
of this order;
[[Page 638]]
(2) the identity, by name or personal identifier and position, of
the original classification authority;
(3) the agency and office of origin, if not otherwise evident;
(4) declassification instructions, which shall indicate one of the
following:
(A) the date or event for declassification, as prescribed in
section 1.6(a) or section 1.6(c); or
(B) the date that is 10 years from the date of original
classification, as prescribed in section 1.6(b); or
(C) the exemption category from declassification, as prescribed
in section 1.6(d); and
(5) a concise reason for classification which, at a minimum, cites
the applicable classification categories in section 1.5 of this
order.
(b) Specific information contained in paragraph (a), above, may be
excluded if it would reveal additional classified information.
(c) Each classified document shall, by marking or other means,
indicate which portions are classified, with the applicable
classification level, which portions are exempt from declassification
under section 1.6(d) of this order, and which portions are unclassified.
In accordance with standards prescribed in directives issued under this
order, the Director of the Information Security Oversight Office may
grant waivers of this requirement for specified classes of documents or
information. The Director shall revoke any waiver upon a finding of
abuse.
(d) Markings implementing the provisions of this order, including
abbreviations and requirements to safeguard classified working papers,
shall conform to the standards prescribed in implementing directives
issued pursuant to this order.
(e) Foreign government information shall retain its original
classification markings or shall be assigned a U.S. classification that
provides a degree of protection at least equivalent to that required by
the entity that furnished the information.
(f) Information assigned a level of classification under this or
predecessor orders shall be considered as classified at that level of
classification despite the omission of other required markings. Whenever
such information is used in the derivative classification process or is
reviewed for possible declassification, holders of such information
shall coordinate with an appropriate classification authority for the
application of omitted markings.
(g) The classification authority shall, whenever practicable, use a
classified addendum whenever classified information constitutes a small
portion of an otherwise unclassified document.
Sec. 1.8. Classification Prohibitions and Limitations. (a) In no
case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative
error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not
require protection in the interest of national security.
(b) Basic scientific research information not clearly related to the
national security may not be classified.
(c) Information may not be reclassified after it has been
declassified and released to the public under proper authority.
(d) Information that has not previously been disclosed to the public
under proper authority may be classified or reclassified after an agency
has received a request for it under the Freedom of Information Act (5
U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory
review provisions of section 3.6 of this order only if such
classification meets the requirements of this order and is accomplished
on a document-by-document basis with the personal participation or under
the direction of the agency head, the deputy agency head, or the senior
agency official designated under section 5.6 of this order. This
provision does not apply to classified information contained in records
that are more than 25 years old and have been determined to have
permanent historical value under title 44, United States Code.
(e) Compilations of items of information which are individually
unclassified may be classified if the compiled information reveals an
additional association or relationship that:
(1) meets the standards for classification under this order; and
[[Page 639]]
(2) is not otherwise revealed in the individual items of
information.
As used in this order, ``compilation'' means an aggregation of pre-
existing unclassified items of information.
Sec. 1.9. Classification Challenges. (a) Authorized holders of
information who, in good faith, believe that its classification status
is improper are encouraged and expected to challenge the classification
status of the information in accordance with agency procedures
established under paragraph (b), below.
(b) In accordance with implementing directives issued pursuant to
this order, an agency head or senior agency official shall establish
procedures under which authorized holders of information are encouraged
and expected to challenge the classification of information that they
believe is improperly classified or unclassified. These procedures shall
assure that:
(1) individuals are not subject to retribution for bringing such
actions;
(2) an opportunity is provided for review by an impartial official
or panel; and
(3) individuals are advised of their right to appeal agency
decisions to the Interagency Security Classification Appeals Panel
established by section 5.4 of this order.
Part 2 Derivative Classification
Sec. 2.1. Definitions. For purposes of this order: (a) ``Derivative
classification'' means the incorporating, paraphrasing, restating or
generating in new form information that is already classified, and
marking the newly developed material consistent with the classification
markings that apply to the source information. Derivative classification
includes the classification of information based on classification
guidance. The duplication or reproduction of existing classified
information is not derivative classification.
(b) ``Classification guidance'' means any instruction or source that
prescribes the classification of specific information.
(c) ``Classification guide'' means a documentary form of
classification guidance issued by an original classification authority
that identifies the elements of information regarding a specific subject
that must be classified and establishes the level and duration of
classification for each such element.
(d) ``Source document'' means an existing document that contains
classified information that is incorporated, paraphrased, restated, or
generated in new form into a new document.
(e) ``Multiple sources'' means two or more source documents,
classification guides, or a combination of both.
Sec. 2.2. Use of Derivative Classification. (a) Persons who only
reproduce, extract, or summarize classified information, or who only
apply classification markings derived from source material or as
directed by a classification guide, need not possess original
classification authority.
(b) Persons who apply derivative classification markings shall:
(1) observe and respect original classification decisions; and
(2) carry forward to any newly created documents the pertinent
classification markings. For information derivatively classified
based on multiple sources, the derivative classifier shall carry
forward:
(A) the date or event for declassification that corresponds to
the longest period of classification among the sources; and
(B) a listing of these sources on or attached to the official
file or record copy.
Sec. 2.3. Classification Guides. (a) Agencies with original
classification authority shall prepare classification guides to
facilitate the proper and uniform derivative classification of
information. These guides shall conform to standards contained in
directives issued under this order.
(b) Each guide shall be approved personally and in writing by an
official who:
(1) has program or supervisory responsibility over the information
or is the senior agency official; and
(2) is authorized to classify information originally at the
highest level of classification prescribed in the guide.
(c) Agencies shall establish procedures to assure that
classification guides are reviewed and updated as provided in directives
issued under this order.
[[Page 640]]
Part 3 Declassification and Downgrading
Sec. 3.1. Definitions. For purposes of this order: (a)
``Declassification'' means the authorized change in the status of
information from classified information to unclassified information.
(b) ``Automatic declassification'' means the declassification of
information based solely upon:
(1) the occurrence of a specific date or event as determined by
the original classification authority; or
(2) the expiration of a maximum time frame for duration of
classification established under this order.
(c) ``Declassification authority'' means:
(1) the official who authorized the original classification, if
that official is still serving in the same position;
(2) the originator's current successor in function;
(3) a supervisory official of either; or
(4) officials delegated declassification authority in writing by
the agency head or the senior agency official.
(d) ``Mandatory declassification review'' means the review for
declassification of classified information in response to a request for
declassification that meets the requirements under section 3.6 of this
order.
(e) ``Systematic declassification review'' means the review for
declassification of classified information contained in records that
have been determined by the Archivist of the United States
(``Archivist'') to have permanent historical value in accordance with
chapter 33 of title 44, United States Code.
(f) ``Declassification guide'' means written instructions issued by
a declassification authority that describes the elements of information
regarding a specific subject that may be declassified and the elements
that must remain classified.
(g) ``Downgrading'' means a determination by a declassification
authority that information classified and safeguarded at a specified
level shall be classified and safeguarded at a lower level.
(h) ``File series'' means documentary material, regardless of its
physical form or characteristics, that is arranged in accordance with a
filing system or maintained as a unit because it pertains to the same
function or activity.
Sec. 3.2. Authority for Declassification. (a) Information shall be
declassified as soon as it no longer meets the standards for
classification under this order.
(b) It is presumed that information that continues to meet the
classification requirements under this order requires continued
protection. In some exceptional cases, however, the need to protect such
information may be outweighed by the public interest in disclosure of
the information, and in these cases the information should be
declassified. When such questions arise, they shall be referred to the
agency head or the senior agency official. That official will determine,
as an exercise of discretion, whether the public interest in disclosure
outweighs the damage to national security that might reasonably be
expected from disclosure. This provision does not:
(1) amplify or modify the substantive criteria or procedures for
classification; or
(2) create any substantive or procedural rights subject to
judicial review.
(c) If the Director of the Information Security Oversight Office
determines that information is classified in violation of this order,
the Director may require the information to be declassified by the
agency that originated the classification. Any such decision by the
Director may be appealed to the President through the Assistant to the
President for National Security Affairs. The information shall remain
classified pending a prompt decision on the appeal.
(d) The provisions of this section shall also apply to agencies
that, under the terms of this order, do not have original classification
authority, but had such authority under predecessor orders.
Sec. 3.3. Transferred Information. (a) In the case of classified
information transferred in conjunction with a transfer of functions, and
not merely for storage purposes, the receiving agency shall be deemed to
be the originating agency for purposes of this order.
(b) In the case of classified information that is not officially
transferred as described in paragraph (a), above, but that originated in
an agency that has ceased to exist and for
[[Page 641]]
which there is no successor agency, each agency in possession of such
information shall be deemed to be the originating agency for purposes of
this order. Such information may be declassified or downgraded by the
agency in possession after consultation with any other agency that has
an interest in the subject matter of the information.
(c) Classified information accessioned into the National Archives
and Records Administration (``National Archives'') as of the effective
date of this order shall be declassified or downgraded by the Archivist
in accordance with this order, the directives issued pursuant to this
order, agency declassification guides, and any existing procedural
agreement between the Archivist and the relevant agency head.
(d) The originating agency shall take all reasonable steps to
declassify classified information contained in records determined to
have permanent historical value before they are accessioned into the
National Archives. However, the Archivist may require that records
containing classified information be accessioned into the National
Archives when necessary to comply with the provisions of the Federal
Records Act. This provision does not apply to information being
transferred to the Archivist pursuant to section 2203 of title 44,
United States Code, or information for which the National Archives and
Records Administration serves as the custodian of the records of an
agency or organization that goes out of existence.
(e) To the extent practicable, agencies shall adopt a system of
records management that will facilitate the public release of documents
at the time such documents are declassified pursuant to the provisions
for automatic declassification in sections 1.6 and 3.4 of this order.
Sec. 3.4. Automatic Declassification. (a) Subject to paragraph (b),
below, within 5 years from the date of this order, all classified
information contained in records that (1) are more than 25 years old,
and (2) have been determined to have permanent historical value under
title 44, United States Code, shall be automatically declassified
whether or not the records have been reviewed. Subsequently, all
classified information in such records shall be automatically
declassified no longer than 25 years from the date of its original
classification, except as provided in paragraph (b), below.
(b) An agency head may exempt from automatic declassification under
paragraph (a), above, specific information, the release of which should
be expected to:
(1) reveal the identity of a confidential human source, or reveal
information about the application of an intelligence source or
method, or reveal the identity of a human intelligence source when
the unauthorized disclosure of that source would clearly and
demonstrably damage the national security interests of the United
States;
(2) reveal information that would assist in the development or use
of weapons of mass destruction;
(3) reveal information that would impair U.S. cryptologic systems
or activities;
(4) reveal information that would impair the application of state
of the art technology within a U.S. weapon system;
(5) reveal actual U.S. military war plans that remain in effect;
(6) reveal information that would seriously and demonstrably
impair relations between the United States and a foreign
government, or seriously and demonstrably undermine ongoing
diplomatic activities of the United States;
(7) reveal information that would clearly and demonstrably impair
the current ability of United States Government officials to
protect the President, Vice President, and other officials for
whom protection services, in the interest of national security,
are authorized;
(8) reveal information that would seriously and demonstrably
impair current national security emergency preparedness plans; or
(9) violate a statute, treaty, or international agreement.
(c) No later than the effective date of this order, an agency head
shall notify the President through the Assistant to the President for
National Security Affairs of any specific file series of records for
which a review or assessment has determined that the information within
those file series almost invariably falls within one or more of the
exemption
[[Page 642]]
categories listed in paragraph (b), above, and which the agency proposes
to exempt from automatic declassification. The notification shall
include:
(1) a description of the file series;
(2) an explanation of why the information within the file series
is almost invariably exempt from automatic declassification and
why the information must remain classified for a longer period of
time; and
(3) except for the identity of a confidential human source or a
human intelligence source, as provided in paragraph (b), above, a
specific date or event for declassification of the information.
The President may direct the agency head not to exempt the file series
or to declassify the information within that series at an earlier date
than recommended.
(d) At least 180 days before information is automatically
declassified under this section, an agency head or senior agency
official shall notify the Director of the Information Security Oversight
Office, serving as Executive Secretary of the Interagency Security
Classification Appeals Panel, of any specific information beyond that
included in a notification to the President under paragraph (c), above,
that the agency proposes to exempt from automatic declassification. The
notification shall include:
(1) a description of the information;
(2) an explanation of why the information is exempt from automatic
declassification and must remain classified for a longer period of
time; and
(3) except for the identity of a confidential human source or a
human intelligence source, as provided in paragraph (b), above, a
specific date or event for declassification of the information.
The Panel may direct the agency not to exempt the information or
to declassify it at an earlier date than recommended. The agency
head may appeal such a decision to the President through the
Assistant to the President for National Security Affairs. The
information will remain classified while such an appeal is
pending.
(e) No later than the effective date of this order, the agency head
or senior agency official shall provide the Director of the Information
Security Oversight Office with a plan for compliance with the
requirements of this section, including the establishment of interim
target dates. Each such plan shall include the requirement that the
agency declassify at least 15 percent of the records affected by this
section no later than 1 year from the effective date of this order, and
similar commitments for subsequent years until the effective date for
automatic declassification.
(f) Information exempted from automatic declassification under this
section shall remain subject to the mandatory and systematic
declassification review provisions of this order.
(g) The Secretary of State shall determine when the United States
should commence negotiations with the appropriate officials of a foreign
government or international organization of governments to modify any
treaty or international agreement that requires the classification of
information contained in records affected by this section for a period
longer than 25 years from the date of its creation, unless the treaty or
international agreement pertains to information that may otherwise
remain classified beyond 25 years under this section.
Sec. 3.5. Systematic Declassification Review. (a) Each agency that
has originated classified information under this order or its
predecessors shall establish and conduct a program for systematic
declassification review. This program shall apply to historically
valuable records exempted from automatic declassification under section
3.4 of this order. Agencies shall prioritize the systematic review of
records based upon:
(1) recommendations of the Information Security Policy Advisory
Council, established in section 5.5 of this order, on specific
subject areas for systematic review concentration; or
(2) the degree of researcher interest and the likelihood of
declassification upon review.
(b) The Archivist shall conduct a systematic declassification review
program for classified information: (1) accessioned into the National
Archives as of the effective date of this order; (2) information
transferred to the
[[Page 643]]
Archivist pursuant to section 2203 of title 44, United States Code; and
(3) information for which the National Archives and Records
Administration serves as the custodian of the records of an agency or
organization that has gone out of existence. This program shall apply to
pertinent records no later than 25 years from the date of their
creation. The Archivist shall establish priorities for the systematic
review of these records based upon the recommendations of the
Information Security Policy Advisory Council; or the degree of
researcher interest and the likelihood of declassification upon review.
These records shall be reviewed in accordance with the standards of this
order, its implementing directives, and declassification guides provided
to the Archivist by each agency that originated the records. The
Director of the Information Security Oversight Office shall assure that
agencies provide the Archivist with adequate and current
declassification guides.
(c) After consultation with affected agencies, the Secretary of
Defense may establish special procedures for systematic review for
declassification of classified cryptologic information, and the Director
of Central Intelligence may establish special procedures for systematic
review for declassification of classified information pertaining to
intelligence activities (including special activities), or intelligence
sources or methods.
Sec. 3.6. Mandatory Declassification Review. (a) Except as provided
in paragraph (b), below, all information classified under this order or
predecessor orders shall be subject to a review for declassification by
the originating agency if:
(1) the request for a review describes the document or material
containing the information with sufficient specificity to enable
the agency to locate it with a reasonable amount of effort;
(2) the information is not exempted from search and review under
the Central Intelligence Agency Information Act; and
(3) the information has not been reviewed for declassification
within the past 2 years. If the agency has reviewed the
information within the past 2 years, or the information is the
subject of pending litigation, the agency shall inform the
requester of this fact and of the requester's appeal rights.
(b) Information originated by:
(1) the incumbent President;
(2) the incumbent President's White House Staff;
(3) committees, commissions, or boards appointed by the incumbent
President; or
(4) other entities within the Executive Office of the President
that solely advise and assist the incumbent President is exempted
from the provisions of paragraph (a), above. However, the
Archivist shall have the authority to review, downgrade, and
declassify information of former Presidents under the control of
the Archivist pursuant to sections 2107, 2111, 2111 note, or 2203
of title 44, United States Code. Review procedures developed by
the Archivist shall provide for consultation with agencies having
primary subject matter interest and shall be consistent with the
provisions of applicable laws or lawful agreements that pertain to
the respective Presidential papers or records. Agencies with
primary subject matter interest shall be notified promptly of the
Archivist's decision. Any final decision by the Archivist may be
appealed by the requester or an agency to the Interagency Security
Classification Appeals Panel. The information shall remain
classified pending a prompt decision on the appeal.
(c) Agencies conducting a mandatory review for declassification
shall declassify information that no longer meets the standards for
classification under this order. They shall release this information
unless withholding is otherwise authorized and warranted under
applicable law.
(d) In accordance with directives issued pursuant to this order,
agency heads shall develop procedures to process requests for the
mandatory review of classified information. These procedures shall apply
to information classified under this or predecessor orders. They also
shall provide a means for administratively appealing a denial of a
mandatory review request, and for notifying the requester of the right
to appeal a final agency
[[Page 644]]
decision to the Interagency Security Classification Appeals Panel.
(e) After consultation with affected agencies, the Secretary of
Defense shall develop special procedures for the review of cryptologic
information, the Director of Central Intelligence shall develop special
procedures for the review of information pertaining to intelligence
activities (including special activities), or intelligence sources or
methods, and the Archivist shall develop special procedures for the
review of information accessioned into the National Archives.
Sec. 3.7. Processing Requests and Reviews. In response to a request
for information under the Freedom of Information Act, the Privacy Act of
1974, or the mandatory review provisions of this order, or pursuant to
the automatic declassification or systematic review provisions of this
order:
(a) An agency may refuse to confirm or deny the existence or
nonexistence of requested information whenever the fact of its existence
or nonexistence is itself classified under this order.
(b) When an agency receives any request for documents in its custody
that contain information that was originally classified by another
agency, or comes across such documents in the process of the automatic
declassification or systematic review provisions of this order, it shall
refer copies of any request and the pertinent documents to the
originating agency for processing, and may, after consultation with the
originating agency, inform any requester of the referral unless such
association is itself classified under this order. In cases in which the
originating agency determines in writing that a response under paragraph
(a), above, is required, the referring agency shall respond to the
requester in accordance with that paragraph.
Sec. 3.8. Declassification Database. (a) The Archivist in
conjunction with the Director of the Information Security Oversight
Office and those agencies that originate classified information, shall
establish a Governmentwide database of information that has been
declassified. The Archivist shall also explore other possible uses of
technology to facilitate the declassification process.
(b) Agency heads shall fully cooperate with the Archivist in these
efforts.
(c) Except as otherwise authorized and warranted by law, all
declassified information contained within the database established under
paragraph (a), above, shall be available to the public.
Part 4 Safeguarding
Sec. 4.1. Definitions. For purposes of this order: (a)
``Safeguarding'' means measures and controls that are prescribed to
protect classified information.
(b) ``Access'' means the ability or opportunity to gain knowledge of
classified information.
(c) ``Need-to-know'' means a determination made by an authorized
holder of classified information that a prospective recipient requires
access to specific classified information in order to perform or assist
in a lawful and authorized governmental function.
(d) ``Automated information system'' means an assembly of computer
hardware, software, or firmware configured to collect, create,
communicate, compute, disseminate, process, store, or control data or
information.
(e) ``Integrity'' means the state that exists when information is
unchanged from its source and has not been accidentally or intentionally
modified, altered, or destroyed.
(f) ``Network'' means a system of two or more computers that can
exchange data or information.
(g) ``Telecommunications'' means the preparation, transmission, or
communication of information by electronic means.
(h) ``Special access program'' means a program established for a
specific class of classified information that imposes safeguarding and
access requirements that exceed those normally required for information
at the same classification level.
Sec. 4.2. General Restrictions on Access. (a) A person may have
access to classified information provided that:
(1) a favorable determination of eligibility for access has been
made by an agency head or the agency head's designee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person has a need-to-know the information.
[[Page 645]]
(b) Classified information shall remain under the control of the
originating agency or its successor in function. An agency shall not
disclose information originally classified by another agency without its
authorization. An official or employee leaving agency service may not
remove classified information from the agency's control.
(c) Classified information may not be removed from official premises
without proper authorization.
(d) Persons authorized to disseminate classified information outside
the executive branch shall assure the protection of the information in a
manner equivalent to that provided within the executive branch.
(e) Consistent with law, directives, and regulation, an agency head
or senior agency official shall establish uniform procedures to ensure
that automated information systems, including networks and
telecommunications systems, that collect, create, communicate, compute,
disseminate, process, or store classified information have controls
that:
(1) prevent access by unauthorized persons; and
(2) ensure the integrity of the information.
(f) Consistent with law, directives, and regulation, each agency
head or senior agency official shall establish controls to ensure that
classified information is used, processed, stored, reproduced,
transmitted, and destroyed under conditions that provide adequate
protection and prevent access by unauthorized persons.
(g) Consistent with directives issued pursuant to this order, an
agency shall safeguard foreign government information under standards
that provide a degree of protection at least equivalent to that required
by the government or international organization of governments that
furnished the information. When adequate to achieve equivalency, these
standards may be less restrictive than the safeguarding standards that
ordinarily apply to United States ``Confidential'' information,
including allowing access to individuals with a need-to-know who have
not otherwise been cleared for access to classified information or
executed an approved nondisclosure agreement.
(h) Except as provided by statute or directives issued pursuant to
this order, classified information originating in one agency may not be
disseminated outside any other agency to which it has been made
available without the consent of the originating agency. An agency head
or senior agency official may waive this requirement for specific
information originated within that agency. For purposes of this section,
the Department of Defense shall be considered one agency.
Sec. 4.3. Distribution Controls. (a) Each agency shall establish
controls over the distribution of classified information to assure that
it is distributed only to organizations or individuals eligible for
access who also have a need-to-know the information.
(b) Each agency shall update, at least annually, the automatic,
routine, or recurring distribution of classified information that they
distribute. Recipients shall cooperate fully with distributors who are
updating distribution lists and shall notify distributors whenever a
relevant change in status occurs.
Sec. 4.4. Special Access Programs. (a) Establishment of special
access programs. Unless otherwise authorized by the President, only the
Secretaries of State, Defense and Energy, and the Director of Central
Intelligence, or the principal deputy of each, may create a special
access program. For special access programs pertaining to intelligence
activities (including special activities, but not including military
operational, strategic and tactical programs), or intelligence sources
or methods, this function will be exercised by the Director of Central
Intelligence. These officials shall keep the number of these programs at
an absolute minimum, and shall establish them only upon a specific
finding that:
(1) the vulnerability of, or threat to, specific information is
exceptional; and
(2) the normal criteria for determining eligibility for access
applicable to information classified at the same level are not
deemed sufficient to protect the information from unauthorized
disclosure; or
(3) the program is required by statute.
(b) Requirements and Limitations. (1) Special access programs shall
be limited to programs in which the number of persons who will have
access ordinarily will be reasonably
[[Page 646]]
small and commensurate with the objective of providing enhanced
protection for the information involved.
(2) Each agency head shall establish and maintain a system of
accounting for special access programs consistent with directives
issued pursuant to this order.
(3) Special access programs shall be subject to the oversight
program established under section 5.6(c) of this order. In
addition, the Director of the Information Security Oversight
Office shall be afforded access to these programs, in accordance
with the security requirements of each program, in order to
perform the functions assigned to the Information Security
Oversight Office under this order. An agency head may limit access
to a special access program to the Director and no more than one
other employee of the Information Security Oversight Office; or,
for special access programs that are extraordinarily sensitive and
vulnerable, to the Director only.
(4) The agency head or principal deputy shall review annually each
special access program to determine whether it continues to meet
the requirements of this order.
(5) Upon request, an agency shall brief the Assistant to the
President for National Security Affairs, or his or her designee,
on any or all of the agency's special access programs.
(c) Within 180 days after the effective date of this order, each
agency head or principal deputy shall review all existing special access
programs under the agency's jurisdiction. These officials shall
terminate any special access programs that do not clearly meet the
provisions of this order. Each existing special access program that an
agency head or principal deputy validates shall be treated as if it were
established on the effective date of this order.
(d) Nothing in this order shall supersede any requirement made by or
under 10 U.S.C. 119.
Sec. 4.5. Access by Historical Researchers and Former Presidential
Appointees. (a) The requirement in section 4.2(a)(3) of this order that
access to classified information may be granted only to individuals who
have a need-to-know the information may be waived for persons who:
(1) are engaged in historical research projects; or
(2) previously have occupied policy-making positions to which they
were appointed by the President.
(b) Waivers under this section may be granted only if the agency
head or senior agency official of the originating agency:
(1) determines in writing that access is consistent with the
interest of national security;
(2) takes appropriate steps to protect classified information from
unauthorized disclosure or compromise, and ensures that the
information is safeguarded in a manner consistent with this order;
and
(3) limits the access granted to former Presidential appointees to
items that the person originated, reviewed, signed, or received
while serving as a Presidential appointee.
Part 5 Implementation and Review
Sec. 5.1. Definitions. For purposes of this order: (a) ``Self-
inspection'' means the internal review and evaluation of individual
agency activities and the agency as a whole with respect to the
implementation of the program established under this order and its
implementing directives.
(b) ``Violation'' means:
(1) any knowing, willful, or negligent action that could
reasonably be expected to result in an unauthorized disclosure of
classified information;
(2) any knowing, willful, or negligent action to classify or
continue the classification of information contrary to the
requirements of this order or its implementing directives; or
(3) any knowing, willful, or negligent action to create or
continue a special access program contrary to the requirements of
this order.
(c) ``Infraction'' means any knowing, willful, or negligent action
contrary to the requirements of this order or its implementing
directives that does not comprise a ``violation,'' as defined above.
[[Page 647]]
Sec. 5.2. Program Direction. (a) The Director of the Office of
Management and Budget, in consultation with the Assistant to the
President for National Security Affairs and the co-chairs of the
Security Policy Board, shall issue such directives as are necessary to
implement this order. These directives shall be binding upon the
agencies. Directives issued by the Director of the Office of Management
and Budget shall establish standards for:
(1) classification and marking principles;
(2) agency security education and training programs;
(3) agency self-inspection programs; and
(4) classification and declassification guides.
(b) The Director of the Office of Management and Budget shall
delegate the implementation and monitorship functions of this program to
the Director of the Information Security Oversight Office.
(c) The Security Policy Board, established by a Presidential
Decision Directive, shall make a recommendation to the President through
the Assistant to the President for National Security Affairs with
respect to the issuance of a Presidential directive on safeguarding
classified information. The Presidential directive shall pertain to the
handling, storage, distribution, transmittal, and destruction of and
accounting for classified information.
Sec. 5.3. Information Security Oversight Office. (a) There is
established within the Office of Management and Budget an Information
Security Oversight Office. The Director of the Office of Management and
Budget shall appoint the Director of the Information Security Oversight
Office, subject to the approval of the President.
(b) Under the direction of the Director of the Office of Management
and Budget acting in consultation with the Assistant to the President
for National Security Affairs, the Director of the Information Security
Oversight Office shall:
(1) develop directives for the implementation of this order;
(2) oversee agency actions to ensure compliance with this order
and its implementing directives;
(3) review and approve agency implementing regulations and agency
guides for systematic declassification review prior to their
issuance by the agency;
(4) have the authority to conduct on-site reviews of each agency's
program established under this order, and to require of each
agency those reports, information, and other cooperation that may
be necessary to fulfill its responsibilities. If granting access
to specific categories of classified information would pose an
exceptional national security risk, the affected agency head or
the senior agency official shall submit a written justification
recommending the denial of access to the Director of the Office of
Management and Budget within 60 days of the request for access.
Access shall be denied pending a prompt decision by the Director
of the Office of Management and Budget, who shall consult on this
decision with the Assistant to the President for National Security
Affairs;
(5) review requests for original classification authority from
agencies or officials not granted original classification
authority and, if deemed appropriate, recommend Presidential
approval through the Director of the Office of Management and
Budget;
(6) consider and take action on complaints and suggestions from
persons within or outside the Government with respect to the
administration of the program established under this order;
(7) have the authority to prescribe, after consultation with
affected agencies, standardization of forms or procedures that
will promote the implementation of the program established under
this order;
(8) report at least annually to the President on the
implementation of this order; and
(9) convene and chair interagency meetings to discuss matters
pertaining to the program established by this order.
Sec. 5.4. Interagency Security Classification Appeals Panel. (a)
Establishment and Administration.
(1) There is established an Interagency Security Classification
Appeals Panel
[[Page 648]]
(``Panel''). The Secretaries of State and Defense, the Attorney
General, the Director of Central Intelligence, the Archivist of
the United States, and the Assistant to the President for National
Security Affairs shall each appoint a senior level representative
to serve as a member of the Panel. The President shall select the
Chair of the Panel from among the Panel members.
(2) A vacancy on the Panel shall be filled as quickly as possible
as provided in paragraph (1), above.
(3) The Director of the Information Security Oversight Office
shall serve as the Executive Secretary. The staff of the
Information Security Oversight Office shall provide program and
administrative support for the Panel.
(4) The members and staff of the Panel shall be required to meet
eligibility for access standards in order to fulfill the Panel's
functions.
(5) The Panel shall meet at the call of the Chair. The Chair shall
schedule meetings as may be necessary for the Panel to fulfill its
functions in a timely manner.
(6) The Information Security Oversight Office shall include in its
reports to the President a summary of the Panel's activities.
(b) Functions. The Panel shall:
(1) decide on appeals by persons who have filed classification
challenges under section 1.9 of this order;
(2) approve, deny, or amend agency exemptions from automatic
declassification as provided in section 3.4 of this order; and
(3) decide on appeals by persons or entities who have filed
requests for mandatory declassification review under section 3.6
of this order.
(c) Rules and Procedures. The Panel shall issue bylaws, which shall
be published in the Federal Register no later than 120 days from the
effective date of this order. The bylaws shall establish the rules and
procedures that the Panel will follow in accepting, considering, and
issuing decisions on appeals. The rules and procedures of the Panel
shall provide that the Panel will consider appeals only on actions in
which: (1) the appellant has exhausted his or her administrative
remedies within the responsible agency; (2) there is no current action
pending on the issue within the federal courts; and (3) the information
has not been the subject of review by the federal courts or the Panel
within the past 2 years.
(d) Agency heads will cooperate fully with the Panel so that it can
fulfill its functions in a timely and fully informed manner. An agency
head may appeal a decision of the Panel to the President through the
Assistant to the President for National Security Affairs. The Panel will
report to the President through the Assistant to the President for
National Security Affairs any instance in which it believes that an
agency head is not cooperating fully with the Panel.
(e) The Appeals Panel is established for the sole purpose of
advising and assisting the President in the discharge of his
constitutional and discretionary authority to protect the national
security of the United States. Panel decisions are committed to the
discretion of the Panel, unless reversed by the President.
Sec. 5.5. Information Security Policy Advisory Council. (a)
Establishment. There is established an Information Security Policy
Advisory Council (``Council''). The Council shall be composed of seven
members appointed by the President for staggered terms not to exceed 4
years, from among persons who have demonstrated interest and expertise
in an area related to the subject matter of this order and are not
otherwise employees of the Federal Government. The President shall
appoint the Council Chair from among the members. The Council shall
comply with the Federal Advisory Committee Act, as amended, 5 U.S.C.
App. 2.
(b) Functions. The Council shall:
(1) advise the President, the Assistant to the President for
National Security Affairs, the Director of the Office of
Management and Budget, or such other executive branch officials as
it deems appropriate, on policies established under this order or
its implementing directives, including recommended changes to
those policies;
[[Page 649]]
(2) provide recommendations to agency heads for specific subject
areas for systematic declassification review; and
(3) serve as a forum to discuss policy issues in dispute.
(c) Meetings. The Council shall meet at least twice each calendar
year, and as determined by the Assistant to the President for National
Security Affairs or the Director of the Office of Management and Budget.
(d) Administration.
(1) Each Council member may be compensated at a rate of pay not to
exceed the daily equivalent of the annual rate of basic pay in
effect for grade GS-18 of the general schedule under section 5376
of title 5, United States Code, for each day during which that
member is engaged in the actual performance of the duties of the
Council.
(2) While away from their homes or regular place of business in
the actual performance of the duties of the Council, members may
be allowed travel expenses, including per diem in lieu of
subsistence, as authorized by law for persons serving
intermittently in the Government service (5 U.S.C. 5703(b)).
(3) To the extent permitted by law and subject to the availability
of funds, the Information Security Oversight Office shall provide
the Council with administrative services, facilities, staff, and
other support services necessary for the performance of its
functions.
(4) Notwithstanding any other Executive order, the functions of
the President under the Federal Advisory Committee Act, as
amended, that are applicable to the Council, except that of
reporting to the Congress, shall be performed by the Director of
the Information Security Oversight Office in accordance with the
guidelines and procedures established by the General Services
Administration.
Sec. 5.6. General Responsibilities. Heads of agencies that originate
or handle classified information shall: (a) demonstrate personal
commitment and commit senior management to the successful implementation
of the program established under this order;
(b) commit necessary resources to the effective implementation of
the program established under this order; and
(c) designate a senior agency official to direct and administer the
program, whose responsibilities shall include:
(1) overseeing the agency's program established under this order,
provided, an agency head may designate a separate official to
oversee special access programs authorized under this order. This
official shall provide a full accounting of the agency's special
access programs at least annually;
(2) promulgating implementing regulations, which shall be
published in the Federal Register to the extent that they affect
members of the public;
(3) establishing and maintaining security education and training
programs;
(4) establishing and maintaining an ongoing self-inspection
program, which shall include the periodic review and assessment of
the agency's classified product;
(5) establishing procedures to prevent unnecessary access to
classified information, including procedures that: (i) require
that a need for access to classified information is established
before initiating administrative clearance procedures; and (ii)
ensure that the number of persons granted access to classified
information is limited to the minimum consistent with operational
and security requirements and needs;
(6) developing special contingency plans for the safeguarding of
classified information used in or near hostile or potentially
hostile areas;
(7) assuring that the performance contract or other system used to
rate civilian or military personnel performance includes the
management of classified information as a critical element or item
to be evaluated in the rating of: (i) original classification
authorities; (ii) security managers or security specialists; and
(iii) all other personnel whose duties significantly involve the
creation or handling of classified information;
(8) accounting for the costs associated with the implementation of
this order,
[[Page 650]]
which shall be reported to the Director of the Information
Security Oversight Office for publication; and
(9) assigning in a prompt manner agency personnel to respond to
any request, appeal, challenge, complaint, or suggestion arising
out of this order that pertains to classified information that
originated in a component of the agency that no longer exists and
for which there is no clear successor in function.
Sec. 5.7. Sanctions. (a) If the Director of the Information Security
Oversight Office finds that a violation of this order or its
implementing directives may have occurred, the Director shall make a
report to the head of the agency or to the senior agency official so
that corrective steps, if appropriate, may be taken.
(b) Officers and employees of the United States Government, and its
contractors, licensees, certificate holders, and grantees shall be
subject to appropriate sanctions if they knowingly, willfully, or
negligently:
(1) disclose to unauthorized persons information properly
classified under this order or predecessor orders;
(2) classify or continue the classification of information in
violation of this order or any implementing directive;
(3) create or continue a special access program contrary to the
requirements of this order; or
(4) contravene any other provision of this order or its
implementing directives.
(c) Sanctions may include reprimand, suspension without pay,
removal, termination of classification authority, loss or denial of
access to classified information, or other sanctions in accordance with
applicable law and agency regulation.
(d) The agency head, senior agency official, or other supervisory
official shall, at a minimum, promptly remove the classification
authority of any individual who demonstrates reckless disregard or a
pattern of error in applying the classification standards of this order.
(e) The agency head or senior agency official shall:
(1) take appropriate and prompt corrective action when a violation
or infraction under paragraph (b), above, occurs; and
(2) notify the Director of the Information Security Oversight
Office when a violation under paragraph (b)(1), (2) or (3), above,
occurs.
Part 6 General Provisions
Sec. 6.1. General Provisions. (a) Nothing in this order shall
supersede any requirement made by or under the Atomic Energy Act of
1954, as amended, or the National Security Act of 1947, as amended.
``Restricted Data'' and ``Formerly Restricted Data'' shall be handled,
protected, classified, downgraded, and declassified in conformity with
the provisions of the Atomic Energy Act of 1954, as amended, and
regulations issued under that Act.
(b) The Attorney General, upon request by the head of an agency or
the Director of the Information Security Oversight Office, shall render
an interpretation of this order with respect to any question arising in
the course of its administration.
(c) Nothing in this order limits the protection afforded any
information by other provisions of law, including the exemptions to the
Freedom of Information Act, the Privacy Act, and the National Security
Act of 1947, as amended. This order is not intended, and should not be
construed, to create any right or benefit, substantive or procedural,
enforceable at law by a party against the United States, its agencies,
its officers, or its employees. The foregoing is in addition to the
specific provisos set forth in sections 1.2(b), 3.2(b) and 5.4(e) of
this order.
(d) Executive Order No. 12356 of April 6, 1982, is revoked as of the
effective date of this order.
Sec. 6.2. Effective Date. This order shall become effective 180 days
from the date of this order.
William J. Clinton
The White House,
April 17, 1995.
[Filed with the Office of the Federal Register, 2:04 p.m., April 18,
1995]
Note: This Executive order was published in the Federal Register on
April 20.
[[Page 651]]
From the U.S. Code Online via GPO Access
[Laws in effect as of January 7, 2003]
[CITE: 50USC435]
TITLE 50--WAR AND NATIONAL DEFENSE
CHAPTER 15--NATIONAL SECURITY
SUBCHAPTER VI--ACCESS TO CLASSIFIED INFORMATION
[Excerpt]
Reports Relating to Certain Special Access Programs and Similar Programs
Pub. L. 103-160, div. A, title XI, Sec. 1152, Nov. 30, 1993, 107
Stat. 1758, as amended by Pub. L. 106-65, div. C, title XXXII,
Sec. 3294(e)(2), Oct. 5, 1999, 113 Stat. 970, provided that:
``(a) In General.--(1) Not later than February 1 of each year, the
head of each covered department or agency shall submit to Congress a
report on each special access program carried out in the department or
agency.
``(2) Each such report shall set forth--
``(A) the total amount requested by the department or agency for
special access programs within the budget submitted under section
1105 of title 31, United States Code, for the fiscal year following
the fiscal year in which the report is submitted; and
``(B) for each program in such budget that is a special access
program--
``(i) a brief description of the program;
``(ii) in the case of a procurement program, a brief
discussion of the major milestones established for the program;
``(iii) the actual cost of the program for each fiscal year
during which the program has been conducted before the fiscal
year during which that budget is submitted; and
``(iv) the estimated total cost of the program and the
estimated cost of the program for (I) the current fiscal year,
(II) the fiscal year for which the budget is submitted, and
(III) each of the four succeeding fiscal years during which the
program is expected to be conducted.
``(b) Newly Designated Programs.--(1) Not later than February 1 of
each year, the head of each covered department or agency shall submit to
Congress a report that, with respect to each new special access program
of that department or agency, provides--
``(A) notice of the designation of the program as a special
access program; and
``(B) justification for such designation.
``(2) A report under paragraph (1) with respect to a program shall
include--
``(A) the current estimate of the total program cost for the
program; and
``(B) an identification, as applicable, of existing programs or
technologies that are similar to the technology, or that have a
mission similar to the technology, or that have a mission similar to
the mission, of the program that is the subject of the notice.
``(3) In this subsection, the term `new special access program'
means a special access program that has not previously been covered in a
notice and justification under this subsection.
``(c) Revision in Classification of Programs.--(1) Whenever a change
in the classification of a special access program of a covered
department or agency is planned to be made or whenever classified
information concerning a special access program of a covered department
or agency is to be declassified and made public, the head of the
department or agency shall submit to Congress a report containing a
description of the proposed change or the information to be
declassified, the reasons for the proposed change or declassification,
and notice of any public announcement planned to be made with respect to
the proposed change or declassification.
``(2) Except as provided in paragraph (3), a report referred to in
paragraph (1) shall be submitted not less than 14 days before the date
on which the proposed change, declassification, or public announcement
is to occur.
``(3) If the head of the department or agency determines that
because of exceptional circumstances the requirement of paragraph (2)
cannot be met with respect to a proposed change, declassification, or
public announcement concerning a special access program of the
department or agency, the head of the department or agency may submit
the report required by paragraph (1) regarding the proposed change,
declassification, or public announcement at any time before the proposed
change, declassification, or public announcement is made and shall
include in the report an explanation of the exceptional circumstances.
``(d) Revision of Criteria for Designating Programs.--Whenever there
is a modification or termination of the policy and criteria used for
designating a program of a covered department or agency as a special
access program, the head of the department or agency shall promptly
notify Congress of such modification or termination. Any such
notification shall contain the reasons for the modification or
termination and, in the case of a modification, the provisions of the
policy as modified.
``(e) Waiver of Reporting Requirement.--(1) The head of a covered
department or agency may waive any requirement under subsection (a),
(b), or (c) that certain information be included in a report under that
subsection if the head of the department or agency determines that
inclusion of that information in the report would adversely affect the
national security. Any such waiver shall be made on a case-by-case
basis.
``(2) If the head of a department or agency exercises the authority
provided under paragraph (1), the head of the department or agency shall
provide the information described in that subsection with respect to the
special access program concerned, and the justification for the waiver,
to Congress.
``(f) Initiation of Programs.--A special access program may not be
initiated by a covered department or agency until--
``(1) the appropriate oversight committees are notified of the
program; and
``(2) a period of 30 days elapses after such notification is
received.
``(g) Definitions.--For purposes of this section:
``(1) Covered department or agency.--(A) Except as provided in
subparagraph (B), the term `covered department or agency' means any
department or agency of the Federal Government that carries out a
special access program.
``(B) Such term does not include--
``(i) the Department of Defense (which is required to submit
reports on special access programs under section 119 of title
10, United States Code);
``(ii) the National Nuclear Security Administration (which
is required to submit reports on special access programs under
section 3236 of the National Nuclear Security Administration Act
[50 U.S.C. 2426]); or
``(iii) an agency in the Intelligence Community (as defined
in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a)).
``(2) Special access program.--The term `special access program'
means any program that, under the authority of Executive Order 12356
[formerly set out below] (or any successor Executive order), is
established by the head of a department or agency whom the President
has designated in the Federal Register as an original `secret' or
`top secret' classification authority that imposes `need-to-know'
controls or access contro