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Not Classified, Just Hidden: The Pentagon's Quiet Bid to Rewrite FOIA

Not Classified, Just Hidden: The Pentagon's Quiet Bid to Rewrite FOIA

The Pentagon wants a new power. Not a weapon, not a base, not a budget line — a word. Buried in a package of legislative proposals the Department of War quietly sent to Congress at the end of June is a request to let the secretary of defense unilaterally exempt "unclassified" records from the Freedom of Information Act. Not records that are secret. Records that, by definition, are not. The proposal has drawn warnings from press-freedom groups and civil liberties lawyers who call it one of the broadest transparency rollbacks attempted by any federal agency in decades. It has drawn almost no attention from anyone else.

The Word Doing All the Work

The mechanism is a category called Controlled Unclassified Information, or CUI — a labeling system created under an Obama-era executive order to standardize the alphabet soup of "For Official Use Only" stamps agencies had been inventing for decades. CUI was never supposed to be a withholding power. The National Archives, which administers the program, has said repeatedly that a CUI marking does not by itself justify refusing a FOIA request; agencies still have to point to one of the law's nine actual exemptions.

The Pentagon's proposal erases that distinction. It would let the defense secretary designate information as CUI, separately designate it "national security information" under a new definition written into the bill itself, and then personally decide — in writing, with no outside review — that the harm from releasing it outweighs the public's interest in seeing it. Three boxes, all checked by the same person. Greg Williams of the Project on Government Oversight, who spent years marking documents CUI as a defense contractor, put the internal culture bluntly: "When in doubt, mark it as CUI." That "when in doubt" reflex would now come with the force of law.

A Shortcut Around the Rules That Already Exist

What makes the proposal strange on its face is that the Pentagon can already classify information that would genuinely endanger national security. Executive Order 13526 covers exactly that ground, and it comes with guardrails the new CUI exemption conspicuously lacks: records can't be classified to hide law-breaking, inefficiency, or embarrassment, and they're supposed to be declassified on a schedule. The proposed FOIA exemption has none of that. As the Reporters Committee for Freedom of the Press put it, the whole three-part test "boils down to one question: Does the secretary want the information kept secret?"

The reach extends past Washington, too. Under the proposal, any record the secretary designates as covered "shall not be disclosed" by a state or local government either — even under a state's own public records law. A sheriff's department or state National Guard unit that received Pentagon-linked material could find a state open-records request blocked by a federal designation nobody outside the Defense Department ever sees.

This Isn't Happening in a Vacuum

The proposal lands amid a documented pattern. Reporters who cover the Pentagon have been required for the past year to sign an access agreement so restrictive that nearly the entire press corps vacated its Pentagon offices rather than comply; The New York Times has sued twice over the credentialing and escort rules and won at the district court level both times, with the Pentagon appealing. The building has gone more than two and a half months without a press briefing. And the agency's own numbers show the FOIA system it already runs is buckling: average response time for "complex" requests topped 260 days last year, up more than 30 percent from the year before, while the backlog of pending requests grew 42 percent to over 30,000. Fewer than one in five requests that do get answered are granted in full.

None of this is presented as a coincidence by the transparency lawyers watching it. It's presented as a system: restrict who can ask questions inside the building, slow-walk the requests that do go through official channels, and now seek a standing legal shield for whatever survives both filters. Pentagon officials describe the CUI proposal in more modest terms — "more uniform protection and more consistent withholding decisions," in the words of acting press secretary Joe Valdez — without explaining what gap in the existing nine FOIA exemptions actually needs filling.

The Timing Problem

Here's the part that makes the story land differently than a routine bureaucratic power grab. This same Pentagon, under this same administration, has spent 2026 running a very public transparency campaign in the opposite direction — releasing tranche after tranche of previously classified UAP files through the PURSUE task force, complete with witness statements, thermal video, and astronaut transcripts, framed as a historic unsealing of government secrets. The optics of openness are being deployed on one shelf of the archive while, on another shelf, the department asks Congress for a tool to make sure nothing has to come off it again without the secretary's personal sign-off.

Whether the CUI exemption becomes law is genuinely unresolved. Both chambers had already finished their defense-bill markups by the time the proposal arrived, which may push it into next year's cycle or a different vehicle entirely — or nowhere. The Pentagon has tried a version of this before, in 2017, and Congress declined to bite. What's different now is the surrounding pattern: a press corps already locked out of hallways it used to walk freely, a FOIA office already failing to meet its own deadlines, and a request, sitting in a legislative package most people will never read, to make the failure permanent and unreviewable. Nobody has to lie to the public under this system. They just have to decide, quietly, that the public doesn't need to know.

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