In late December, the Pentagon was faced with Congress repealing its requirement that all troops be vaccinated against COVID-19, an issue that had wide public interest.
The department whipped up a fact sheet and talking points on Dec. 23 so its spokespeople and public affairs officers could answer questions from curious reporters. All of the information in the seven-page document, which was obtained by Military.com, had been released before or was intended to be made public.
But the document itself was labeled "CUI/NOT FOR RELEASE." The label designates "controlled unclassified information," or info that has not been classified in the traditional way but the Pentagon has decided should be kept from the public based on a 2020 policy. That withholding of a wide array of documents, such as press releases on vaccinations, has drawn scrutiny, with critics arguing that the designation is being used more to prevent embarrassment than protect national security.
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Now, the Pentagon is being forced to review the new practice, and prove it's not abusing its power to conceal documents.
Congress included the order in its $1.7 trillion annual spending bill, which includes 2023 funding for the military. The massive piece of legislation was signed by President Joe Biden last week.
Tucked into the law is a measure that gives Deputy Defense Secretary Kathleen Hicks less than a month to review the use of CUI and brief congressional committees on the findings, according to an explanatory statement included with the spending bill. Congress set a 30-day deadline on the review when the bill was passed.
The Senate Appropriations Committee said in the explanatory statement released with the spending bill that, while it "supports common sense security practices, it is concerned that the extensive use of CUI will result in less transparency, accountability, and congressional oversight."
Put simply, they are worried the Pentagon could be keeping basic info from taxpayers for no good reason.
Meanwhile, the Pentagon was also ordered in the National Defense Authorization Act to update guidance for the use of CUI as part of classified and protected unclassified programs, as well as updated training on how to use those guidelines.
The department's independent watchdog, the inspector general, also announced in October it had launched an audit of the policy and use of the "controlled unclassified information" label.
"The Department of Defense is aware of the provision in the enacted fiscal 2023 Consolidate Appropriations Act to conduct a review of the use of controlled unclassified information and will respond accordingly to Congress. The DoD remains committed to transparency to promote accountability and public trust, but must balance that with the vital need to protect critical and sensitive non-public information," Pentagon spokeswoman Sue Gough wrote in an email response to Military.com.
The Pentagon sees tighter control of the massive amount of information and documents it produces -- the department is the largest federal agency -- as an issue of national security.
Many individual documents on their own may not contain information that can be used against the U.S., but when thousands are compiled, they can reveal details about defenses that could be useful to other nations or hostile groups. For example, China or Russia could gain insight into weapons programs, personnel or force posture around the world by sifting public documents.
The vast sea of public military documents has been the "path of least resistance for adversaries," according to the Defense Counterintelligence and Security Agency.
The Pentagon issued its policy on the use of CUI in March 2020, following creation of the designation by former President Barack Obama a decade earlier as a new way to manage information. The designation is used by other federal agencies as well.
The guidance from 2020 bars the use of CUI to conceal violations of law, administrative error and inefficiencies; prevent embarrassment to the Pentagon or personnel; or to prevent open business competition.
The Pentagon's top spokesman, Brig. Gen. Pat Ryder, declined to answer whether the label was overused during a public press briefing last month, ahead of passage of the spending bill as the department typically does not comment on pending legislation.
"My response is CUI. Sorry," Ryder joked to the reporter who asked the question.
-- Travis Tritten can be reached at firstname.lastname@example.org. Follow him on Twitter @Travis_Tritten.