Legal question about classification of documents

[Capitalocracy]

Now, I've come to understand that by law, the U.S. government can only classify documents which directly affect national security in a tangible way, which means that all Wikileaks and Bradley Manning or whoever is leaking these documents are doing is exposing the misuse of document classification, rather than actually committing a crime. And in so doing, they are exposing the crimes which in many cases the U.S. government is attempting to cover up by classifying these documents.

But does anyone know the specific location/text/legislative and judicial history of this rule, that the U.S. government can only classify documents for national security concerns, not to cover up crimes or for any other purpose, and all other government documents are public domain?

[Lasher]

1. I'm skeptical of this limitation.

When I was with the US Army in Seoul I worked with classified documents. Many of them contained information that you could read about in US newspapers at the time, which was 1970.

[zigzagzed]

2. Cliffs Notes

The latest guidance is found in Executive Order 13526 (12/29/2009). This updates a series of executive orders issued by previous Presidents. Additional guidance is found in the Code of Federal Regulations (32 CFR 2001).

EO 13526: http://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information

32 CFR 2001: http://www.archives.gov/isoo/policy-documents/eo-12958-implementing-directive.html

Information may be classified if "its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security" if it falls into one of the following categories: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or facilities; (g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or (h) the development, production, or use of weapons of mass destruction. All classified documents are supposed to cite one of these reasons. Because they are found in Section 1.4 of EO 13526, the reason is often written in the pattern of "1.4 (a)".

Diplomatic cables and other documents that WikiLeaks revealed could be classified under reasons "b" (foreign government information) and "d" (foreign relations or foreign activities of the United States, including confidential sources).

Section 1.7 of EO 13526 lists prohibitions and limitations for classifying information. In general, information cannot be classified to (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of the national security.

Hope this helps

[BlueMTexpat]

3. K & R for posting facts that actually help the discourse!

And welcome to DU! :hi:

[Capitalocracy]

4. Thanks! OK, so...

what exactly does (b) foreign government information mean, specifically intelligence gathered on foreign governments or information provided by foreign governments? And do these classifications under (b) and (d) require a test of describable damage to national security, or is it assumed that any classified information about a foreign government automatically qualifies as potentially damaging to national security? That is to say, does foreign government information have to be damaging to national security to be classified, or can they classify any foreign government information, including, say, a restaurant guide, and then automatically its disclosure would be considered damaging to national security?

And what's the constitutional basis for this? Is there a limit, or can the president just sign an executive order saying anything and everything can be classified?

[zigzagzed]

5. The pendulum of secrecy

Like everything else in the Federal Government, each agency gets to come up with its own guidance. Section 2.2 of EO 13526 allows agencies to create classification guides with the specific guidance you seek. This means that that the reasons of Section 1.4 will likely be interpreted different by, for example, the Departments of State and Defense. Now here's the kicker: these classification guides are themselves classified. The specific metrics (i.e., these facts combined with those facts should be classified at this level) are generally not publicly available.

Trying to find a balance between over-classifying and under-classifying seems to be a painful endeavor. It is guaranteed to anger more people than it satisfies. Democracies require a substantial openness from the government to further public discourse, an openness that is harmed by over-classification. However, when information is under-classified, an adversary can glean tremendous amounts of intelligence from seemingly unrelated bits of information, and use this information to harm our national security. Even something as trivial as a classification guide can provide an adversary with tremendous insight into our foreign policy and intelligence priorities. I think the pendulum will forever swing between under- and over-classifying.

There is a system in place to provide review and oversight of classification issues. Most classified information is supposed to be automatically declassified after a certain period of time (generally 25 years, according to Sec 3.3 of the EO). There is a process to review classification decisions, and appeal them if there is disagreement. However, because of its nature, we will probably never know whether or not this system is effective, or how often it succeeds or fails.

I do not believe there is a specific Constitutional provision authorizing the President to create rules for classifying and declassifying information, just like there's no provision authorizing the creation of an Air Force or NASA. While I'm not a Constitutional scholar, I think it may be justified as an executive power (i.e., the authority for the daily administration of the state bureaucracy) vested in the President by Article II, Section 1, Clause 1 of the Constitution.

For my two cents, I think there ought to be a vigorous public debate on this issue. The only way we'll reach the "best" balance between over- and under-classifying is to keep an active dialogue on this issue. I believe that when the debate stops, either we'll over-classify and undermine democracy, or we'll under-classify and undermine national security. Personally, I'm glad I'm not in a position where I have to make this judgment call.

[Capitalocracy]

7. A vigorous public debate on the issue

This would be the best possible outcome from Wikileaks (well, that and a criminal investigation of some of the events that we now have evidence of) but unfortunately, I'm not seeing it, at least not on the MSM.

[zigzagzed]

8. No grassroots movement?

I wonder if we can coax the Tea Party into running with this. It would be interesting to see costumed people carrying signs reading "over-classify over my cold dead hands." (I'm sure they could create better jingoes.) Perhaps a few well-placed posts on the Free Republic of Fox Nation about President Obama classifying his birth certificate might motivate them to action.

But seriously, you're probably right to doubt that there will be a public debate over this. Classification guidelines just don't have the emotional appeal as, say, taxes or health care. I'm afraid it would very quickly fall into the realm of general conspiracy theories (aliens? FEMA concentration camps? no gold at Ft. Knox?).

[EFerrari]

6. The thing is, you're asking a question about the lawwh

when none of the three branches of our government seem to concern themselves with it in practice.