The Presidential Power to Declassify Information| Explained

Source: AUN News

In Washington, Interest in the extent of a president’s authority to declassify information has increased in response to former President Donald J. Trump’s assertion that he had declassified all of the records the F.B.I. seized during the search of his Florida home last week, including those categorized as top secret.

According to a statement read on Fox News by a right-wing writer Mr. Trump has designated as one of his representatives to the National Archives, Mr. Trump’s office asserted on Friday that he had a “standing order” that materials “removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed.”

Legal experts in national security have rejected the idea, regardless of whether there is proof that such an order ever occurred. The notion that anything Mr. Trump happened to take upstairs each evening automatically became declassified without noting what it was and telling the agencies that used that material was deemed “preposterous” by Glenn S. Gerstell, the National Security Agency’s chief legal from 2015 to 2020.

Because none of the three criminal offenses listed in a search warrant that served as the basis for the inquiry depend on whether papers include classified information, the assertion is also unrelated to Mr. Trump’s potential legal issues related to the document issue.

The novel assertion is nevertheless startling. Here is a more detailed explanation of what a president can and cannot do to remove safeguards for state secrets.

What is the system of classification?

It is the administrative procedure through which the federal government regulates how members of the executive branch handle material that could potentially be made public but is thought to be likely to jeopardize national security.

Information may be classified as confidential, secret, or top secret by officials with the power to organize or declassify matters. A classification of S.C.I. for sensitive compartmented information might further limit access to sensitive material.

Access to information that is classified is limited. Only officials with the appropriate security clearances—and a “need to know”—are allowed to read or learn about the contents of designated papers containing that information. Additionally, regulations govern their storage, physical transportation, and technological transmission.

The classification system is legally supported by the president’s constitutional role as commander in chief. Through a succession of executive orders dating to the period, including World War II and the early Cold War, presidents have built and developed it. President Barack Obama issued Executive Order 13526, the current order, in 2009.

Is criminal law used to enforce the classification system?

Mostly not.

The classification system primarily focuses on administrative controls. The most common administrative penalty for disobedience is reprimanding, losing security clearances, and termination for employees.

Section 1924 of Title 18 of the United States Code, which makes the unlawful retention or removal of classified material illegal, is one of the few instances where Congress has linked a statute to the classification system. However, the search warrant did not mention that statute as the subject of the investigation.

Who is in charge of classifying and declassifying information?

In the ordinary course of business, certain officials in federal departments and agencies designated as “original classification authority” may do so. They are seen acting according to the president’s authority in certain situations.

Is the declassification of material done formally?

Yes. The 2009 executive order establishes guidelines for declassification reviews and gives the department or agency head responsibility for overseeing them.

Regulations established by the executive branch specify the procedure to be followed, including the need to ensure that other agencies and departments with interest in the secret are consulted. Additionally, there are ways to erase classification labels from documents.

Can presidents personally declassify information?

Yes, as their constitutional authority ultimately determines this.

Presidents typically direct their subordinates in charge of the department or agency with central control over the information to assess the situation and make it public. Presidents do, however, occasionally directly declassify information.

For instance, a part of President George W. Bush’s daily intelligence briefing from August 2001, one month before the terrorist attacks on September 11, was declassified by him in 2004. It contained the warning: “Bin Laden Determined to Strike in the U.S.”

Do presidents have to follow the rules of conduct?

No conclusive Supreme Court precedent provides an answer to that query.

Even if it were true that Mr. Trump declared the records to be declassified while he was in office, it is evident that he did not adhere to the established protocols.

Even while it wasn’t explicitly mentioned in the search warrant, if the Justice Department were to charge Mr. Trump under the legislation that makes it illegal to keep or remove sensitive information, it would raise a new issue if he repeated the claim in his defense.

The strong view of presidential power proponents has argued that presidents are not personally bound by the policies and guidelines that govern the behavior of their deputies in the executive branch — and that presidents can even disregard executive orders without first revoking them. Others reject that interpretation of presidential authority.

“The concept that some paper-pushing bureaucracy, with classification authority conferred by the president, needs to authorize the declassification is ludicrous,” Mr. Trump’s office said in a statement that was read aloud by the right-wing author John Solomon.

What about nuclear information?

Although there is not much of a substantive distinction between them regarding criminal law, they are unique.

The Atomic Energy Act, a law approved by Congress, places its legal prohibitions on mishandling knowledge of how to create a nuclear weapon or enrich atomic material. Such data is referred to as “restricted data.” Although it is frequently referred to as “classified” in ordinary speech, it is not legally the same as being covered by the executive order.

The bill established a procedure for deciding whether to reduce certain rights. Congress ordered that senior officials from the Energy and Defense Agencies jointly decide on matters concerning military weapons; if the two departments disagree, the law states that the president takes the final decision. The decision to reduce nuclear weapons information into so-called formerly restricted material must, therefore, at the very least, involve those officials.

Under the Atomic Energy Act, government employees were prohibited from divulging confidential information without authorization. Regardless of whether or not information about dangerous nuclear weapons is still considered to be restricted data, the Espionage Act separately makes it a crime for it to be retained or disclosed without authorization.

Is it legal for a president to covertly declassify information without notifying anyone or leaving a written record?

According to experts in the rules of government secrecy, that question is almost illogical.

Departments and agencies would continue to treat the material as classified. They would continue to impose access restrictions on documents containing it if there were no directive documenting the decision to declassify the information and communicate it to the rest of the government.

Speculative queries such as “What if a president decides that anything is declassified? Does that change its status?’ are so hypothetical that their relevance to real-world situations is minimal, according to Steven Aftergood, a secrecy expert with the Federation of American Scientists.

Analysis by: Advocacy Unified Network