according to this Stanford Law School fellow's published article.
"Retroactively Classified Documents, the First Amendment, and the Power to Make Secrets Out of the Public Record"
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9475&context=penn_law_review
by Jonathan Abel, Fellow, Constitutional Law Center, Stanford University
INTRODUCTION
Now you see it. Now you don’t.
This is not a magician’s incantation. It is a description of retroactive classification, a little-known provision of U.S. national security law that allows the government to declassify a document, release it to the public, and then declare it classified later on. Retroactive classification means the government could hand you a document today and prosecute you tomorrow for not giving it back. Retroactive classification can even reach documents that are available in public libraries, on the Internet, or elsewhere in the public domain.
The executive branch has used retroactive classification to startling effect. The Department of Justice, for example, declassified and released a report on National Security Agency (NSA) wiretapping only to declare, years later, that the report was once again classified. The journalist who had received the report was threatened with prosecution if he did not return it. Retroactive classification has also targeted government documents revealing corruption in Iraq, violence in Afghanistan, and mismanagement of the national missile defense program. In each of these cases, the government released a document in an unclassified form through official channels—not through a leak—and then turned around to classify it.
This practice would be troubling enough if it actually removed the document from the public domain. But in the Internet Age, once a document is released to the public, it is often impossible for the government to retrieve it. While retroactive classification does not remove the document from the public domain, where our enemies can access it, retroactive classification does remove the document from the public discourse, prohibiting members of Congress, government auditors, and law-abiding members of the public from openly discussing it.
In the ongoing debate about the balance between secrecy and transparency in government affairs, retroactive classification tests the limits of the government’s ability to control information in the public domain. The questions raised by retroactive classification go far beyond those raised by the WikiLeaks and Edward Snowden disclosures. In those cases, the information remained classified even though it was widely available in the public domain. A similar situation occurs with retroactive classification when information in the public domain becomes classified. The difference is that in retroactive classification, the government initially released this information in a non-classified form and only later decided to classify it. This difference makes retroactive classification much more complicated from a legal standpoint because it involves the government’s going back on its initial classification decision. Retroactive classification thus forces us to ask what limits, if any, exist on the government’s authority to control information. Can the government reach into the public domain to make a secret out of something it has already disclosed? Are we obligated to go along with retroactive classification decisions? What are the implications beyond national security law? This Article takes up these pressing questions.
SNIP
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And there's also this from Media Matters:
http://mediamatters.org/research/2015/08/12/myths-and-facts-on-hillary-clintons-email-and-r/204913
Media are exploiting news that two emails Democratic presidential candidate Hillary Clinton turned over to the State Department from her time as secretary of state may be retroactively classified as "top secret" to push myths about Clinton's handling of government information and scandalize her email use. Here are the facts.
FACT: None Of The Emails Sent To Clinton Were Labeled As "Classified" Or "Top Secret"
FACT: Emails Originated In State Dept. System, And Questions About Retroactive Classification Would Have Occurred Regardless Of Clinton's Server Use
FACT: Experts Have Debunked Any Comparison Between Clinton's Email Use And David Petraeus' Crimes
FACT: IG Referral To Justice Department Was Not Criminal, And FBI Isn't Targeting Clinton Herself
Intelligence Community IG Says Two Emails From Clinton's Server Should Be Marked "Top Secret"
Intelligence Community Inspector General Says Two Emails From Clinton's Server Contain "Top Secret" Information. The inspector general for the Intelligence Community (ICIG), I. Charles McCullough, reportedly informed leaders of key congressional oversight committees that two classified emails previously discovered on Clinton's server contain top secret information. As McClatchy reported:
The inspector general for the Intelligence Community notified senior members of Congress that two of four classified emails discovered on the server Clinton maintained at her New York home contained material deemed to be in one of the highest security classifications - more sensitive than previously known.
The notice came as the State Department inspector general's office acknowledged that it is reviewing the use of "personal communications hardware and software" by Clinton's former top aides after requests from Congress.
State Department: It Remains Unclear Whether Material In Two Emails Should Be Retroactively Classified. NBC noted that the State Department is still working with the intelligence community to determine whether the information in the two emails should in fact be labeled as classified:
SNIP
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