How Government Secrets Are Declassified and Disclosed

by admin May 16, 2017 at 4:54 am
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President Trump spoke at a memorial for peace officers on Monday.

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Doug Mills/The New York Times

WASHINGTON — The news that President Trump disclosed highly classified information about the Islamic State during a meeting with Russian officials, jeopardizing an ally’s intelligence source, has raised interest in legal issues surrounding disclosures of classified information.

Who sets the rules for declassifications or disclosures?

The classification system is regulated by executive orders, which presidents periodically update and replace. The current version is Executive Order 13526, which President Barack Obama signed in late 2009. Under its rules, “original classification authorities” — like the heads of various departments and agencies — can normally classify and declassify information “owned” by their organizations. They can then authorize its disclosure to someone who has the proper security clearance and is deemed to need to know it. But the president oversees all the agencies and can also directly exercise his powers.

Did Mr. Trump have legal authority to disclose the information?

Yes. The designation of information as a restricted national security secret is considered part of the president’s constitutional powers as commander in chief. Because the classified information system was not established and is not regulated by congressional statutes, Mr. Trump has the power to declassify or disclose anything he wants.

“The classification system is not based on a law,” said Steven Aftergood, a government secrecy specialist with the Federation of American Scientists. “It is an expression of presidential authority, and that means that the president and his designees decide what is classified, and they have the essentially unlimited authority to declassify at will. The president defines the terms of the security clearance system and the parameters that determine who may be given access to classified information.”

Did Mr. Trump’s disclosure declassify the information?

Apparently not. Notably, although White House officials put out statements late on Monday playing down any problem with what he told the Russians, the administration also implored Washington Post reporters not to publish the details lest their dissemination damage national security.

What would happen if someone else did this?

Such an official could lose his or her security clearance and job. He or she could also be prosecuted under the Espionage Act, which makes it a felony punishable by 10 years in prison to disclose information to someone not authorized to receive defense-related secrets that could hurt the United States or aid another country. In recent years, the government has frequently used that statute to prosecute people who leak information to the public.

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