Saturday, August 21, 2010

New Executive Order Impacting Federalism

This coming Monday [August 23, 2010] in the Federal Register at 75 Fed. Reg. 51609 a six page Executive Order signed by President Obama appears. Entitled "Classified National Secuirty Information Program for State, Local, Tribal and Private Sector Entities"! This is a very very significant Executive Order. Full text available from this blogger or at:

Presidential Documents EXECUTIVE ORDERS Defense and National Security: Classified National Security Information; Program for State, Local, Tribal, and Private Sector Entites (EO 13549) , 51609–51614 [2010–21016] [TEXT] [PDF

Perhaps the key point despite what some may think it announces for the first time that Governors may receive classified "National Security Information" without a background investigation. Of course still on a non-statutory need to know basis. Who determines the need-to-know, not discussed in the order, is of extreme importance since there is strong evidence of manipulation of access by federal employees to discriminate against some who definitely need-to-know. Yet the long standing practice of granting Governors access to needed classified information is finally codified. This access too has also been politicized in the past with Governors of states with governors of parties not that of the White House were prevented from learning facts allowing them to protect the public. All seem to say this ended with 9/11/01 but I have know way to verify that claim. I did discuss it in my presentation to the 9/11 Commission Staff in my 5 hour briefing of that staff. I understand up to 25% of the notes of the staff are now available from NARA but not sure when notes on my presentation will appear.

That stated, the Executive Order is a definite step forwards. And by the way perhaps noted in this blog for the first time anywhere, there is NO SUCH THING AS CLASSIFIED HOMELAND SECURITY INFORMATION it is either classifed "national security information" nothing. Each federal entity that deals with classified materials or grants security clearances--see E.O. 10450--will have to incorporate this Executive Order into their required published regulations on both classifed information and granting of personnel security clearances--usually the later is a cross-reference to Title 5 of the Code of Federal Regulations. For an example of how personnel security clearances can be abused at the federal level see the seminal Blue Ribbon Panel Report of 1992 involving FEMA available from this blogger or on the FAS Secrecy Archive Web Site.

What appears to be both patent and latent deficiencies in the Executive Order need to be identified but I identify tow already. It does not make absolutely who adjudicates the personell security clearances after collection of any degrogatroy information or absence thereof for these STATE, Locals, Indian Tribes, or other private entitiesl and how exactly is Need-to-know determined and by whom. By the way the non-delegation proscription to the Governors given access is badly worded. I think I know what it means but will others use it to label information "eyes-only" for the Governors.
My off the cuff guess is that in major departments with national security assignments or even preparedness assignments a minimum staff of 10 will be needed to administer this order. The issues it raises are extremely complex.