The federal government routinely classifies documents and other information whose disclosure would harm national security. Even so, classification can also be used to hide internal deliberations and policy failures. Classified documents typically get in the news when they are found in the possession of active or retired politicians and high-profile individuals. What are the procedures for classifying information, and how do people run afoul of these rules?
What are the rules governing classified information?
The classification system is primarily governed via a series of executive orders issued by the president. The current system was first started by Executive Order 10290, issued by President Truman in 1951. It has then been expanded and modified several times, with the most recent change made with Executive Order 13526, issued in 2009, which revised standards for declassifying information.
Classified documents are critical to maintaining national security, upholding foreign relationships, and protecting intelligence operations. A document is not properly classified unless it meets two requirements: 1) its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to national security, and 2) it pertains to one of 8 designated topics, including military plans and weapons systems, foreign government information, intelligence activities, and other national-security-related information. For example, information about how gold is stored at Fort Knox has been classified for nearly a century.
What are the levels of classification?
Classification levels are determined by how much damage could be caused to national security if the information was made public. Anything that threatens “exceptionally grave damage to national security” is considered Top Secret. Information that could cause “serious damage” is classified as Secret. Information that could cause some damage but not grave levels of damage is classified as Confidential.
The number of currently classified documents is difficult to assess. This number is quite large because of the broad definition of classified information. Some sources estimate that 50 million federal documents are currently classified at some level.
What does it take to access classified information?
Classified information is generally only accessible to those whose job relies on the information, also called a ‘need-to-know’ basis. The higher the security classification, the stricter this principle is.
All government officials granted access to classified information have signed non-disclosure agreements and passed a background check that aims to determine several things about the individual: that they are loyal to the United States, are reliable and stable, and have no allegiance to foreign governments.
As of 2017, 1.2 million individuals had access to top-secret information, and another 1.6 million had access to all other levels of classified information. In addition, another 1.2 million are eligible for access but do not have active access to classified information. Those with access include military personnel, government contractors, federal agency employees, and high-level agency heads and officials.
Presidential records are governed by the Presidential Records Act of 1978, which establishes that all presidential papers – documents created while the president and his staff are in office – belong to the United States. Presidential papers are turned over to the National Archives for organization and retention, and non-classified papers are made public after twelve years.
Who has the authority to classify and declassify?
The individual who creates a classified document chooses the classification level to which the document should be assigned. Documents may be classified by the President, the Vice President, agency heads, and individuals designated by the President or agency heads.
By law, Presidents have the authority to classify and declassify information. The Information Security Oversight Office has developed formal procedures for declassification in compliance with classification rules established by Executive Order 13526, issued in 2009. However, documents remain classified until a formal order is issued and recorded. A President or former President’s assertion that they declassified a document is not enough to establish this fact.
Former Presidents have no authority to classify or declassify information. Former Presidents may have access to classified information they created, reviewed, signed, or received during their term in office. This access is facilitated by the Archivist of the United States, who sends documents to a former President on request.
Records are declassified automatically after at most 25 years unless they contain national security information that is still relevant. The National Declassification Center, established by Executive Order 13526 in 2009, handles the declassification of records that have historically important value.
What does it take to violate classification laws? Does this happen?
Most violations of the laws governing classified documents involve the unauthorized removal or retention of such documents. Examples include an authorized employee keeping classified documents in their home (intentionally or otherwise) because homes are not considered secure locations for classified documents. Violations could also include transmitting or communicating classified information to others, like press members, or, in the most extreme cases, giving classified information to a foreign government.
There are many examples of government officials being prosecuted for mishandling classified information. Sandy Berger, a former National Security Advisor, removed classified documents from a National Archives reading room. The violation was a misdemeanor at the time, and the Court ordered a fine, community service, probation, and revoking of security clearance for three years. Retired General and CIA Director David Petraeus was convicted for sharing classified information with a biographer, receiving a suspended sentence and a fine. Other government employees and contractors have received substantial prison sentences for mishandling classified information.
For government officials, decisions to prosecute for mishandling classified information often consider a defendant’s knowledge of whether a violation has been committed and how they responded to inquiries regarding classified information. Both Berger and Petraeus, for example, initially lied to investigators about their actions. Although there have been exceptions, individuals are generally not prosecuted if they promptly report that they possess classified documents and return them immediately.
Further Reading
Aftergood, S. (2013). An Inquiry Into The Dynamics of Government Secrecy. Harvard Civil Rights-Civil Liberties Law Review, 48(2). https://tinyurl.com/563dr22e, accessed 12/16/23.
Lin, H. (2013). Reducing Government Over-Classification of National Security Information. Lawfare. https://tinyurl.com/mr43ucsx, accessed 10/19/23.
Mulligan, S., & J., Elsea. (2023). Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information. Congressional Research Service. https://tinyurl.com/bdhvpf85, accessed 12/16/23.
Riedel, B. (2023). How Does the Government’s Classification System Work? Brookings. https://tinyurl.com/5y4m5n3s, accessed 12/16/23.
Sources
What are the rules governing classified information?
Disclosure of Classified Information, 18 USC § 798. Legal Information Institute, Cornell Law School. https://tinyurl.com/z98rhfjx, accessed 12/16/23.
Exec. Order No. 13526, 75 Fed. Reg. 707 (2009). https://tinyurl.com/yc9y75p2, accessed 12/16/23
Gathering or delivering defense information to aid foreign governments. 18 US Code § 794 (2011). Legal Information Institute, Cornell Law School. https://tinyurl.com/26cftv87, accessed 12/16/23.
Information Security Oversight Office. (2023). Frequently Asked Questions. National Archives. https://tinyurl.com/ytk98ps6, accessed 12/16/23.
Kahn, M. (2020). The Law of Classified Information: A Primer. Lawfare Blog. https://tinyurl.com/bdevnyvm, accessed 12/16/23.
Mulligan, S., & Elsea, J. (2023). Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information. Congressional Research Service. https://tinyurl.com/bdhvpf85, accessed 12/16/23,
Unauthorized Removal and Retention of Classified Documents or Material, 18 USC § 1924. (2011). Legal Information Institute, Cornell Law School. https://tinyurl.com/43zhhvh9, accessed 12/16/23.
What are the levels of classification?
Information Security Oversight Office. (2023). Frequently Asked Questions. National Archives. https://tinyurl.com/ytk98ps6, accessed 12/16/23.
Lopez, G. (2023). Too Many Top Secrets. The New York Times. https://tinyurl.com/mr3a58de, accessed 12/16/23.
What does it take to access classified information?
Office of The Director of National Intelligence. (2017). Security Executive Agent Directive 4, National Security Adjudicative Guidelines. https://tinyurl.com/4asd45tf, accessed 12/17/23.
Office of the Director of National Intelligence. (2017). Fiscal Year 2017 Annual Report on Security Clearance Determinations. National Counterintelligence and Security Center. https://tinyurl.com/2ahxuuvz, accessed 12/17/23.
Presidential Records Act, HR 13500, 95th Cong. (1978). Congress.gov. https://tinyurl.com/25nkrcmk, accessed 12/17/23.
US Senate Select Committee on Intelligence. (2023). Legal Resources. https://tinyurl.com/nhhaxv23, accessed 12/17/23.
Who has the authority to classify and declassify?
32 CFR Parts 2001 and 2003. (2010). Classified National Security Information; Final Rule. https://sgp.fas.org/isoo/directive-2010.pdf, accessed 12/17/23.
Congressional Research Service. (2023). The Protection of Classified Information: The Legal Framework. https://tinyurl.com/yj556dun, accessed 12/17/23
Exec. Order No. 12356, 47 Fed. Reg. 14874 (2016). https://tinyurl.com/msbsp5ta, accessed 12/16/23.
Exec. Order. No. 13526, 75 Fed. Reg. 705 (2009). https://shorturl.at/cduQT, accessed 12/17/23.
National Declassification Center. (2021). About the NDC. https://tinyurl.com/549ud88n, accessed 12/17/23.
Procedures for Declassifying Intelligence of Public Interest. (2022). Congressional Research Service. https://tinyurl.com/2655ebu4, accessed 12/17/23.
Riedel, B. (2023). How Does the Government’s Classification System Work? Brookings Institution. https://tinyurl.com/5y4m5n3s, accessed 12/17/23.
What does it take to violate classification laws? Does this happen?
Disclosure of Classified Information, 18 USC § 794. Legal Information Institute, Cornell Law School. https://tinyurl.com/z98rhfjx, accessed 12/16/23.
Seldin, J. (2022, August 9). FBI, Justice Department Routinely Prosecute Misuse of Classified Documents. Voice of America News. June 13, 2023. https://tinyurl.com/ywtn69ys, accessed 12/17/23
This policy brief was researched in July 2023 by Policy vs Politics interns Eli Oaks and Julia Acevedo, drafted by Team Leader Mary Adams, and revised by Dr. Nate Birkhead and Dr. William Bianco with the assistance of Subject Matter Expert Professor Emily Berman.