The Protection of Classified Information: The Legal Framework

"Summary

This report provides an overview of the relationship between executive and legislative authority over national security information. It summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. Finally, the report discusses insider risk management measures..

Background

Prior to the New Deal, decisions regarding classification of national security information were left to military regulation.1 In 1940, President Franklin Roosevelt issued an executive order authorizing government officials to protect information pertaining to military and naval installations.2 Presidents since that time have continued to set the federal government’s classification standards by executive order, but with one critical difference: while President Roosevelt cited specific statutory authority for his action,3 later Presidents have cited general statutory and constitutional authority.4

The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power in this area. Citing the President’s constitutional role as Commanderin-Chief,5 the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to classify and control access to information bearing on national security ... flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” 6 This language has been interpreted by some to indicate that the President has plenary authority to control classified information.7 On the other hand, the Supreme Court has suggested that “Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures—subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering.” 8 In fact,Congress established a separate regime in the Atomic Energy Act for the protection of nuclearrelated “Restricted Data.” 9

Congress has also directed the President to establish procedures governing the access to classified material so that generally no person can gain such access without having undergone a background check.10 In addition, Congress directed the President, in formulating the classification procedures, to adhere to certain minimum standards of due process with regard to access to classified information.11 These standards include establishing uniform procedures for, inter alia, background checks, denial of access to classified information, and notice of such denial.12 There is an exception to the due process requirements, however, where compliance could damage national security, although the statute directs agency heads to submit a report to the congressional intelligence committees in such a case..."
Classified Information