Pentagon proposes new secrecy power to withhold unclassified records from public-access laws

Pentagon Seeks Expanded Authority to Shield Unclassified Documents

New Proposal Could Limit Public Access Under Freedom of Information Act

Pentagon proposes new secrecy power to withhold - The Department of Defense is currently petitioning Congress to grant it sweeping new powers to keep unclassified records hidden from public view. This legislative initiative has sparked concern among transparency advocates, who argue that the move could severely diminish the public's capacity to monitor the operations of the nation's largest federal agency. Furthermore, critics worry that this shift may obscure how billions of taxpayer funds are utilized by the military establishment.

At the heart of the proposal is the creation of a fresh section within federal law. This new provision would empower the Secretary of Defense to exclude specific categories of "controlled unclassified information," commonly referred to as CUI, from disclosure requirements mandated by the Freedom of Information Act. Under the current system, agencies must rely on one of nine statutory exemptions to block document release. However, the Pentagon's plan would allow the military to determine that if a record pertains to national defense vulnerabilities, the potential damage caused by revealing the information supersedes the public's right to know.

Brett Max Kaufman, a senior counsel at the American Civil Liberties Union's Center for Democracy, highlighted the historical context of this issue. In an email correspondence with CBS News, Kaufman noted that for many years, the executive branch has grappled with "a massive overclassification problem throughout the executive branch." He emphasized that granting additional withholding capabilities would be counterproductive, stating, "The last thing the government needs is a new power to withhold information under the FOIA."

To understand the significance of this proposal, it is necessary to look at the origins of the CUI system. The framework for Controlled Unclassified Information came into being through an executive directive issued during the Obama presidency. Its primary goal was to consolidate dozens of disparate "For Official Use Only" markings that various agencies had utilized over several decades. The intention was to create a uniform method for safeguarding sensitive data that does not require top-secret classification. Crucially, simply labeling a document as CUI does not inherently grant the authority to deny public access. The National Archives, which manages the government's CUI program, has consistently clarified that CUI designation does not automatically alter the rules governing FOIA releases. Agencies must still demonstrate that a document fits within one of the existing legal exemptions.

The Pentagon's latest proposal represents a fundamental alteration of this dynamic. Rather than viewing CUI merely as an administrative label, the department intends to utilize it as a central justification for withholding records entirely. Greg Williams, who leads the Center for Defense Information at the Project on Government Oversight, expressed skepticism regarding the plan. Speaking with CBS News, Williams described the initiative as "a significant concern" and predicted it would make navigating the FOIA process "a lot more difficult." He pointed out that CUI is often loosely defined and applied broadly, noting that during his time as a contractor, the prevailing advice was simply, "when in doubt, mark it as CUI."

The Freedom of Information Act was originally passed in 1966 with the explicit purpose of reversing the traditional presumption of government secrecy. It requires federal bodies to release records unless they can prove they fall under one of the narrowly defined exemptions. Congress has reinforced this principle over time, most notably with the FOIA Improvement Act of 2016. That amendment strengthened the presumption of openness by mandating that agencies show a concrete, rather than speculative, foreseeable harm before withholding documents. The Pentagon's current proposal, which was transmitted to lawmakers in late June for possible inclusion in upcoming legislation, challenges this established standard.

This push for greater secrecy coincides with a broader transformation in how the Department of Defense handles information under the leadership of Defense Secretary Pete Hegseth. Over the last twelve months, the department has tightened restrictions on media access, requiring credentialed