Chapter 3.
CLASSIFICATION UNDER EXECUTIVE ORDERS
This chapter discusses classification under executive orders
(EOs). Of the EOs that deal with security classification of information, only
EO 12958, signed by President Clinton in 1995, is currently in effect. All
earlier EOs on this subject have been repealed by subsequent EOs.
Executive Orders are issued by the president by authority of the
executive powers granted him by the Constitution. Executive orders become
effective upon presidential signature and subsequent publication in the Federal Register. They are regarded as a
public act of which U.S.
courts must take notice and give effect.[1]
Executive orders have the force of public law.[2]
However, an EO cannot contravene an act of Congress. The effect of an EO is
generally confined to the activities of executive agencies in managing their
responsibilities. Failure to obey provisions of an order
results in administrative sanctions (e.g., reprimands and loss of job), not
legal offenses.[3]
Although Congress has not explicitly authorized an EO dealing
with classification of information, it has given this classification system
implicit approval via two statutes. Under Sect. 552(b)(1) of the Freedom of
Information Act (FOIA),
Congress has exempted from disclosure documents that have been properly
classified under an executive order. Under the Internal Security Act of 1950,
Congress has prohibited government employees from giving information classified
by the president (or under his direction) to foreign agents. Note that
Exemption (b)(1) of the FOIA uses the terms “national defense or foreign policy,” whereas EO 12958 uses the terms
“national defense or foreign relations”
[emphasis added]. Some members of Congress have objected to the use of the term
“relations” rather than “policy” in the EOs establishing our classification
system because “relations” is a much broader term than “policy.”[4]
In 1947 the National Security Act[5]
created the National Security Council (NSC), which was given responsibility to
study national security matters. This Act also specified that the Director of
Central Intelligence was responsible for protecting intelligence sources and
methods from unauthorized disclosures.[6]
In 1950 the Internal Security Act of 1950 authorized the criminal punishment of
any federal official or employee who communicated classified information
without authorization.[7]
CLASSIFICATION UNDER EXECUTIVE ORDERS PRIOR
TO EO 12958
Executive Order 8381
The first EO dealing with classification was EO 8381, “Defining
Certain Vital Military and Naval Installations and Equipment,” issued on March 22, 1940, by President Franklin
Roosevelt.[8]
This EO was promulgated in accordance with a 1938 statute[9]
concerned with protecting information relative to certain national defense interests
(“vital military and naval installations or equipment”), which was similar to
the 1869 Army order concerning forts (Chap. 2).
However, the order’s scope went beyond the interests specifically listed in the
statute (“photograph, sketch, picture, drawing, map, or graphical
representation”) to encompass “all official military or naval books, pamphlets,
documents, reports, maps, charts, plans, designs, models, drawings,
photographs, contracts, or specifications which are now marked under the
authority or at the direction of the Secretary of War or the Secretary of the
Navy as ‘secret,’ ‘confidential,’ or ‘restricted’ and all such articles or
equipment which may hereafter be so marked with the approval or at the
direction of the President.”[10]
Military and naval installations were defined to include “any commercial
establishment engaged in the development or manufacture of military or naval
arms, munitions, equipment, designs, ships, or vessels for the United States
Army or Navy.”[11]
The three classification levels used by the military (Secret, Confidential, and
Restricted) were adopted by this EO. However, they were not explicitly defined
in this EO.
The main effect of this EO was to establish presidential approval
of what the Army and Navy were already doing. This EO also apparently gave
governmental civilian employees the authority to classify information, because
it provides that the information could be classified “with the approval or at
the direction of the President”[12]
in addition to being classified by authority of the Secretary of War or the
Secretary of the Navy. Until this time, Army and Navy personnel and civilian
employees of those services had been the only recipients of governmental
classification directives. This EO did not list any sanctions for its
violation, apparently relying upon those specified by the 1938 statute (not
more than a $1000 fine or 1 year imprisonment or both).9
Executive Order 9182
On
June 13, 1942, President
Roosevelt signed Executive Order 9182, Consolidating
Certain War Information Functions into an Office of War Information.[13]
This executive order was issued under the authority of the First War Powers
Act, 1941.[14]
Executive Order 9182 established an Office of War Information (OWI) within the
Office of Emergency Management in the Executive Office of the President.
Although the OWI’s functions were mostly concerned with gathering and
disseminating public information on the war effort, its responsibilities also
encompassed security of information policies. The OWI’s classification
regulations, although not issued as an EO, were issued under the authority of
an EO.
On September 28, 1942,
the Director of OWI issued OWI Regulation No. 4, concerning security
classification of information. This regulation was applicable throughout the
government [“To the Heads of Executive Departments, Independent Establishments,
and Other Government Agencies, Including Corporations,” but perhaps was not
applicable to the War Department and Navy Department (see below with respect to
Change No. 1)] and controlled the identification, handling, and dissemination
of sensitive information. Office of War Information Regulation No. 4 contained
all the elements of a security classification of information system. Although
this OWI classification system was said to be the first in our history to
encompass information other than military and defense information,[15]
it should be noted that its definitions of “information” and “classified
information” (see below) referred only to “information relating to national defense.”
This September 1942 OWI regulation is said to be the forerunner of subsequent
EOs dealing with classification.[16]
The memorandum
distributing OWI Regulation No. 4 included the following statement:[17]
The necessity for a uniform
practice within the Government with regard to the security of information has
become a matter of some urgency. Practice has differed markedly among the
departments, with the result that some documents which should have been treated
as secret have been permitted too free a circulation, while others which were
in no sense secret or confidential have been improperly classified in these
categories.
In the preamble to Regulation No.
4, the OWI director stated the following:
In order to provide uniform
safeguards over information which might prove of aid or comfort to the enemy
and to prevent undue restriction of information which may appropriately be made
available to the public, the following regulations are hereby issued by virtue
of the authority vested in me by Executive Order 9182.
“Information” and “classified
information” were defined, as were three categories of classified information
(the following definitions include changes made by an amendment of November 13, 1942, which modified
the original definitions of Secret and Confidential information):
The term “information” as
used herein shall include documents, maps, charts, blueprints, photographs,
models or other materials which convey information relating to national
defense, as well as copies thereof obtained by any means of reproduction or
transcription.
The term “classified
information” shall designate information relating to national defense requiring
special provision for safeguarding. Information which needs no safeguarding
shall be referred to as unclassified information.
Secret Information is information the
disclosure of which might endanger national security, or cause serious injury
to the Nation or any governmental activity thereof.
Confidential Information is information the
disclosure of which although not endangering the national security would impair
the effectiveness of governmental activity in the prosecution of the war.
Restricted Information is information the
disclosure of which should be limited for reasons of administrative privacy, or
is information not classified as confidential because the benefits to be gained
by a lower classification, such as permitting wider dissemination where
necessary to effect the expeditious accomplishment of a particular project,
outweigh the value of the additional security obtainable from the higher
classification.
Note that the definition of
Restricted, which permits “balancing” of classification costs and benefits, is
closer to the then-current Navy definition than the Army’s (see previous
chapter). Note also that “classified information” (i.e., Secret, Confidential,
or Restricted information) is “information relating to national defense
requiring special provision for safeguarding” but that only Secret
information’s disclosure might endanger “national security.” Thus, “national
security” information seems to be an especially sensitive subset of “national
defense” information in this OWI Regulation No. 4. The Army and Navy
classification of information regulations of 1936 and 1938, respectively, and
later, also defined “Confidential” information as not “national security”
information (see previous chapter).
The head of each
Federal agency or his designated representative was given the authority to
classify information in all three categories. Overclassification was to be
avoided:
Documents or materials
requiring classification shall be assigned the least restrictive classification
consistent with the proper safeguarding of the information or material. Care
should be taken to avoid overclassification, particularly in cases where undue
restriction may prevent dissemination of information which should properly be
disclosed to the public or Congress.
Classified
documents, the pages of which were permanently and securely fastened together,
were to be “plainly marked” with the appropriate classification designation on
the cover, title page, and first page. Other documents whose pages were not
permanently and securely fastened together were to be marked on the top and
bottom of each page. Classified maps and photomaps were to be appropriately
marked under the scale. Classified documents furnished to persons other than
those in the Federal service were required to also have the following notation:
This document contains
information affecting the national defense of the United States within the
meaning of the Espionage Act, 50 U.S.C. 31 and 32, as amended. Its transmission
to or the revelation of its contents in any manner to an unauthorized person is
prohibited by law.
Other
information in this OWI Regulation No. 4 that is pertinent to the history of
security classification of information is as follows:
No person is entitled solely
by virtue of his office or position to knowledge or possession of classified
information. Except as provided by . . . [following subsections of the regulation]
. . . such information is entrusted only to those individuals whose official
duties require such information.
The head of each agency may,
by regulation, provide for the registration of secret or confidential
information.
The distribution of secret
matter shall be held to the absolute minimum.
Secret matters shall not be
discussed over the telephone. Necessary references made to confidential matters
over the telephone shall be held to the lowest practicable minimum.
Cipher tables, alphabets and
keys shall not be kept in the same container as the code books, documents, and
devices to which they apply.
In all agencies, appointed
officers shall make an inspection immediately before the close of business to
insure that all secret documents and cryptographic devices have been properly
and safely put away.
The regulation also specifically
cited the penalties of the Espionage Act. It is interesting to note that
Confidential information could be discussed over an unsecure telephone line,
although that practice was discouraged. Also of interest is the required
end-of-the-day inspections with respect to Secret documents but the absence of
comparable inspections for Confidential documents. This is perhaps consistent
with the definition of Confidential information which stated that its
disclosure would not endanger the national security.
By
memorandum dated March 13, 1944, the Acting Director of OWI issued Change No. 1
to Office of War Information Regulation No. 4.[18]
This Change No. 1 was to “be followed by all non-military Federal Departments
and Agencies.” Its major purpose was to implement the Combined Security Classification Agreement, which was an agreement
between the United States and Great Britain on “definitions, classifications,
and handling of matters to be safeguarded.”
A major result was the addition of “Top Secret” to the allowed
classification categories.,
Top Secret Information is information the security
aspect of which is paramount and whose unauthorized disclosure would cause
exceptionally grave danger to the nation.
Change No. 1 sometimes used the
term “grading” to refer to “classification,” evidently a result of the British
influence on terminology. For example:
Each document, or extract
therefrom, except cryptographic material, shall be graded according to its own
content and not necessarily according to its relationship to another document.
It is the obligation of
responsible authorities to keep classified matter under constant review and to
downgrade it as soon as conditions permit.
This is perhaps the first
specification of a requirement to review classified information for possible
downgrading. It may also be the first use of the term “downgrading” in U.S.
classification regulations. Previously, the term “reclassification” was used.
Concerning
transmission of classified documents, Change No. 1 to OWI Regulation No. 4
stated the following:
In transmitting a group of
documents, or attachments or inclosures [sic] to a letter, each document,
attachment, or letter will carry its own independent classification or no
classification, consistent with the proper safeguarding of the information
contained therein.
A letter of transmittal or
cover letter will be classified no lower than the highest classification
of any of its inclosures. It should be noted that in some cases a letter may be
deserving of a higher classification than any of its inclosures.
Other instructions of interest
are the following:
Top Secret documents will be
of such a nature that only specifically designated individuals will handle them
or originate them.
The transmission and custody
of Secret documents will normally be covered by a receipt system and registered
documents periodically accounted for. It is mandatory that registered documents
be covered by a receipt system.
Executive
Order 9608 abolished all of the functions of OWI effective as of the close of
business September 15, 1945. The office itself was abolished effective December
31, 1945.[19]
Executive Order 10104
The second EO dealing with classification of information, EO
10104, “Defining Certain Vital Military and Naval Installations and Equipment
as Requiring Protection Against the General Dissemination of Information
Relative Thereto,” was issued by President Truman on February 1, 1950.[20]
The authority for EO 10104 was based on the 1938 defense installation statute6
and “in the interests of national defense.” The three classification markings
authorized by EO 8381 were continued, and a fourth marking, “Top Secret,” was
added. The Top Secret marking had been in use since 1944 under OWI regulations
(see previous subsection) and perhaps earlier under Army or Navy regulations.
None of those four classification markings were defined in this EO.
Executive Order 10104 used essentially the same definitions of vital
military and naval installations or equipment as its predecessor EO 8381,
except that it referred to prior authority for classification as being “the
President, the Secretary of Defense, the Secretary of the Army, the Secretary
of the Navy, or the Secretary of the Air Force.”[21]
The prior authorities for classification listed in EO 8381 were the Secretary
of War or the Secretary of the Navy. Executive Order 10104 also included the
new branch of the service, the Air Force, with respect to installations and
equipment. Executive Order 10104 was very similar to EO 8381, and its contents
showed no influence from the wartime OWI classification regulations.
Executive Order 10290
On September 24, 1951, President Truman replaced EO 10104 with
EO 10290,[22]
effective 30 days after publication in the Federal
Register. This EO was titled “Regulations Establishing Minimum Standards
for the Classification, Transmission, and Handling, by Departments and Agencies
of the Executive Branch, of Official Information Which Requires Safeguarding in
the Interest of the Security of the United States.” In contrast with the two
prior EOs, EO 10290 did not cite any specific statutory authority. The
President relied on “the authority vested in me by the Constitution and
statutes, and as President of the United States.”
Executive Order 10290 provided a comprehensive system for
identifying and protecting information, “the safeguarding of which is necessary
in order to protect the security of the United States.”[23]
Classified information was to be designated as either Top Secret, Secret,
Confidential, or Restricted and was also to be specifically identified as
“Security Information.”[24]
Definitions were provided for terms such as classified security information,
information, classify, security classification, unclassified information,
document, material, agency, and cryptographic system.[25]
Regulations were included to classify, upgrade, downgrade, declassify,
disseminate, and handle (mark, transmit, store, and destroy) classified
security information. Only the essentials of marking were required: the words
“Security Information” and the appropriate classification had to appear on a
document.[26]
Executive Order 10290 stated that “To avoid overclassification
and depreciation of the importance of properly classified security information
. . . security information shall be assigned its lowest security classification
consistent with its proper protection.”[27]
The major criterion for the assignment of the “Top Secret” classification was
that its unauthorized disclosure “would or could cause exceptionally grave
danger to the national security.”27 Top Secret information “plainly
requires the highest degree of protection.” The “Secret” classification was to
be given to information which required “extraordinary protection in the
interest of national security.”27 “Confidential” information
required “careful protection to prevent disclosures which might harm national
security.”27 “Restricted” information concerned national security
and required “protection against unauthorized use or disclosure, particularly
information which should be limited to official use.”27 Note that
all four classification levels in EO 10290 concerned national security, whereas
OWI Regulation No. 4 definitions of Secret, Confidential, and Restricted, which
were patterned after then-current Army and Navy classification regulations,
stated that disclosure of Secret information would endanger national security
but that the disclosure of Confidential or Restricted information would not
endanger national security.
Executive Order 10290 made major changes in the government’s
classification system. Probably the most striking change was the extension, in
peacetime, of the classification system to nonmilitary federal agencies, “To
all departments and agencies of the Executive Branch.”[28]
An agency was defined as “any department or establishment within the Executive
Branch, including any government corporation that is operated as an
instrumentality of the Federal Government”[29]
This EO represented a major departure from past practices. From the earliest
days of our country until this Order was promulgated, with the exception of
World War II OWI Regulation No. 4, classification markings specified by
military regulations or EOs primarily applied to the protection of defense
information and rarely affected nonmilitary agencies.[30]
This expansion of classification authority in peacetime to nonmilitary agencies
and departments caused much concern (e.g., to Congress and the press) because
of the potential restriction of the flow of information from these agencies to
the public. This reaction is of interest, in retrospect, because the preface to
the regulations stated that these regulations were being promulgated because
“the furnishing of information to the public about government activities will
be facilitated by clear identification and marking of those matters the
safeguarding of which is required in the interests of national security.”[31]
Another major change was to classify information on the basis of
“national security,” a term which is subject to broader interpretation than the
term “national defense,” which was the essential basis for the two previous EOs
dealing with classification of information. [However, note that “national
security” in OWI Regulation No. 4 had a narrower meaning than “national
defense.”]
Executive Order 10290 stated, “Documents shall be classified
according to their own content and not necessarily according to their
relationships to other documents. References to classified material which do not
reveal classified security information shall not be classified.”[32],
This Order also provided for downgrading and declassification, both “automatic”
and “nonautomatic.”[33]
It also provided for constant review of classified information for downgrading
and declassification “as soon as conditions warrant.”[34],
Sanctions for violations of EO 10290 were not specifically
mentioned. However, the Order stated that, whenever practicable, “when
classified security information affecting national defense is furnished authorized
persons, in or out of Federal service, other than those in the Executive
Branch, the following notation, in addition to the assigned classification
marking, shall whenever practicable be placed on the material, on its
container, or on the written notification of its assigned classification:”
This material contains
information affecting the national defense of the United States within the
meaning of the espionage laws, Title 18, U.S.C., Secs. 793 and 794, the
transmission or revelation of which in any manner to an unauthorized person is
prohibited by law.”[35]
Note
that this admonitory marking was first used by the Army in its 1935 regulations
concerning “Restricted” information (“technical” information at that time).
This admonitory marking was also in OWI Regulation No. 4.
Each agency head was responsible for implementing these
regulations in his agency. An agency head could
establish higher standards than those in EO 10290 for identifying and
protecting information.[36]
The head of an agency could permit the discussion, over a nonsecure telephone
line, of security information classified as Restricted if such security
information originated within his department.[37]
The Attorney General was responsible for interpreting the regulations in
connection with administrative problems.[38]
Executive Order 10290 specifically
distinguished the term “Restricted” from “Restricted Data” and stated that the
classification of Restricted Data was to be according to the provisions of the
Atomic Energy Act.[39]
Executive Order 10501
In November 1953 President Eisenhower replaced EO 10290 with EO
10501, “Safeguarding Official Information in the Interests of the Defense of
the United States,”[40]
to be effective December 15, 1953. As authority for issuing this order, he
cited “the authority vested in me by the Constitution and statutes, and as
President of the United States,” which was the same implied authority used by
President Truman for EO 10290. Although essentially the same as EO 10290 in
most respects, the new EO differed from the previous one in several ways.
First, the new EO returned to “national defense” as the basis for
classification, rather than “national security” which was cited in EO 10290.
Thus, EO 10501 frequently mentioned information classified as “defense information,”
whereas EO 10290 had used the term “security information” in similar
situations. Also, EO 10501 eliminated the “Restricted” classification level,
keeping “Top Secret,” “Secret,” and “Confidential.” All subsequent EOs have
limited classification of information to those three levels. Also, EO 10501 was
the first EO to specifically define each of the classification levels in
distinct subsections of the order.
The “Top Secret” classification was to “be applied only to
information or material the defense aspect of which is paramount, and the
unauthorized disclosure of which could result in exceptionally grave damage to
the Nation.”[41]
Examples of this damage were cited: “leading to a definite break in diplomatic
relations affecting the defense of the United States, an armed attack against
the United States or its allies, a war, or the compromise of military or
defense plans, or intelligence operations, or scientific or technological
developments vital to the national defense.”41
The “Secret” classification applied to “defense information or
material the unauthorized disclosure of which could result in serious damage to
the Nation.”[42]
Examples of serious damage were “jeopardizing the international relations of
the United States, endangering the effectiveness of a program or policy of
vital importance to the national defense, or compromising important military or
defense plans, scientific or technological developments important to national
defense, or information revealing important intelligence operations.”42
The “Confidential” classification applied to “defense information
or material the unauthorized disclosure of which could be prejudicial to the
defense interests of the nation.”[43]
Probably the most significant change occasioned by EO 10501 was
the marked reduction in agency authority to classify information. Original
classification authority was withdrawn from 28 entities, and in 17 others it
was limited to the agency head.[44]
Original classification authority was limited to those agencies having direct
responsibility for national defense. For agencies having partial responsibility
for national defense matters, original classification authority was limited to
the agency head, without power of delegation.
Agency personnel with original classification authority had to be
specifically designated as having this authority.
A new area introduced in EO 10501 required agencies to designate
“experienced persons to coordinate and supervise” agency activities under this
order and required that these persons “maintain active training and orientation
programs for employees concerned with classified defense information.”[45]
Individual employee responsibility in complying with this Order was emphasized.
The only classification-marking
requirement was the classification designation; the prior EO had also required
the words “Security Information.” However, when a classification change was
made, EO 10501 required, in addition to the new classification designation, an
indication of the authority for the change, the date of the change, and the
identity of the person making the change.[46]
The word “trustworthy” appeared in
an EO for the first time with respect to access to information. Section 7
stated:
Knowledge or possession of
classified defense information shall be permitted only to persons whose
official duties require such access in the interest of promoting national
defense and only if they have been determined to be trustworthy.
The
comparable requirement in EO 10290 had stated that “The dissemination of
classified security information shall be limited to persons whose official
duties require knowledge of such information.”[47]
Similar statements with respect to requiring access to classified information
“as necessary for the performance of his duties” or “official duties” continued
in Nixon and Carter EOs. The Reagan EO changed the wording to “provided that
such access is essential to the accomplishment of lawful and authorized
Government purposes.”[48]
The Clinton EO essentially retained the Reagan EO’s less-stringent requirement
for access to information: “ ‘need-to-know’ means . . . requires access to
specific classified information in order to perform or assist in a lawful and
authorized governmental function.”[49]
The National Security Council (NSC)
was assigned responsibility to conduct a continuing review of the
implementation of the order.[50]
Each agency was to delegate a staff member to conduct such a review within the
agency.[51]
The president was to designate a member of his staff to act on suggestions or
complaints from non-governmental sources regarding the Order.[52]
The Attorney General was responsible for interpreting the regulations with
respect to administrative problems.[53]
President Eisenhower’s EO 1050l remained in effect for nearly 20
years. Although subsequent EOs amended EO 10501, most were directed at changes
in agency classification authority. An exception was President Kennedy’s 196l
EO 10964,[54]
which dealt primarily with declassification procedures. Kennedy’s EO placed
classified information into four groups, two of which included information
exempt from automatic declassification, one of which included information to be
automatically downgraded at 12-year intervals, and a fourth group which
contained information automatically downgraded at 3-year intervals and automatically
declassified after 12 years. That EO also added a new Sect. 19 that provided
for administrative sanctions against government employees knowingly responsible
for the unauthorized release or disclosure of classified defense information or
material.
Executive Order 11652
Executive Order 11652,[55]
“Classification and Declassification of National Security Information,” was
issued by President Nixon on March 8, 1972, to be effective June 1, 1972. It
was the result of an interagency committee study initially headed by
William H. Rhenquist, later Chief Justice of the United States Supreme
Court. The authority for this order was cited as “the Constitution and statutes
of the United States.” Subsequent EOs dealing with classification have cited
essentially the same authority (the Constitution and laws of the United
States). While incorporating most aspects of EO 10501, the new order made
several major changes in the government’s classification system. Classification
was to be assigned to official information or material that required protection
against unauthorized disclosure in the interest of the national defense or
foreign relations (“national security”) of the United States. The Eisenhower EO
had defined classified information only in terms of “national defense.”
EO 11652 used “reasonableness” as a test to determine whether
information was Top Secret, Secret, or Confidential. For example, to be
classified Top Secret, the test of information was “whether its unauthorized
disclosure could reasonably be expected to cause exceptionally grave damage to
the national security.”[56]
President Truman’s EO 10290 defined Top Secret information in terms of whether
its unauthorized disclosure “would or could cause exceptionally grave danger to
the national security.”27 President Eisenhower’s EO 10501 used
“could result in exceptionally grave damage to the Nation.”41
Secret information was defined in terms of “whether its
unauthorized disclosure could reasonably be expected to cause serious damage to
the national security.”[57]
The test for Confidential information was “whether its unauthorized disclosure
could reasonably be expected to cause damage to the national security.”[58]
As with the previous order, examples were given for Top Secret and Secret
information but not for Confidential information.
Authority to originally classify information was restricted to
those offices in the executive branch that were concerned with matters of
national security. Top Secret original classification authority was withdrawn
from 31 entities.[59]
Twelve “Departments” were given Top Secret original classification authority.
Thirteen “Departments” were given Secret original classification authority.
Appearing for the first time in an EO were prohibitions
concerning classification. “In no case shall information be classified in order
to conceal inefficiency or administrative error, to prevent embarrassment to a
person or Department, to restrain competition or independent initiative, or to
prevent for any other reason the release of information which does not require
protection in the interest of national security.”[60]
Also appearing for the first time was a requirement to “portion
mark”
documents, to the extent practicable “to facilitate excerpting and other use.”[61]
The identity of the highest authority authorizing the classification of
material was to be indicated on the face of the material classified.[62]
Also to be shown was information concerning the applicability of the General
Declassification Schedule (see below), the office of origin, the classification
category, and the date of classification.[63]
Absent was the following statement, which appeared in EOs 10290 and 10501:
“Documents shall be classified according to their own content and not
necessarily according to their relationship to other documents.”32,[64]
Executive Order 11652 included a “General Declassification
Schedule” that provided for automatic downgrading or declassifying of
classified material at specified intervals (Top Secret-to-Secret and
Secret-to-Confidential at a 2‑year interval; Confidential-to-Unclassified
at a 6‑year interval).[65]
However, material could be exempted from this schedule by officials with Top
Secret original classification authority.[66]
Exempted material was required to undergo a classification review, on a
specific request, after 10 years had elapsed from date of origin of the
information or material.[67]
Automatic declassification was specified for information or materials 30 years
old or more.[68]
However, information or material could be exempted from this automatic
declassification by a written determination by the head of the originating
department.[69]
The NSC monitored the implementation of EO 11652. To assist the
NSC, an Interagency Classification Review Committee was established. The
committee consisted of members of the Departments of State, Defense, and
Justice; the Atomic Energy Commission (AEC); the Central Intelligence Agency
(CIA); and the NSC staff, with a chairman designated by the President.[70]
Among other responsibilities, the committee was to act on “suggestions or complaints
from persons within or without the government” with respect to this order.[71]
The classification training and orientation programs that were
first specified in EO 10501 received further attention in EO 11652. Such
programs were to include briefings for new employees, periodic reorientations
during employment, and debriefings upon termination of employment.[72]
Executive Order 11652, like EO 10964 which amended EO 10501,
included statements concerning sanctions for violations of the order. Section
13(A) authorized administrative reprimands for repeated unnecessary
classification or overclassification of information or material. “Prompt and
stringent administrative action” was to be taken against employees responsible
for unauthorized release or disclosure of classified information or material.[73]
For violation of criminal statutes, the case was to be referred to the Justice
Department. Note that EO 10964 specified
sanctions only for unauthorized disclosures.[74]
Executive Order 12065
President Carter issued Executive Order 12065, “National Security
Information,” which replaced EO 11652, effective December 1, 1978.[75]
This Order mentioned, at its beginning, the need “to balance the public’s
interest in access to Government information with the need to protect certain
national security information from disclosure.” “National security” meant “the
national defense and foreign relations of the United States.”[76]
The definitions for Top Secret, Secret, and Confidential, referred to as
“classification designations,” were essentially the same as those in EO 11652,
except that, to be Confidential, the criterion was “identifiable damage” rather
than “damage.” If there was reasonable doubt about the proper classification,
“the less restrictive designation should be used, or the information should not
be classified.”[77]
Top Secret original classification authority was given to 13
agencies. Secret original classification authority was given to four agencies.
Two agencies were given Confidential original classification authority.
The definitions for the classification designations did not give
examples of what constituted Top Secret and Secret information, as did EO 10501
and EO 11652. However, EO 12065 identified seven areas with which information
had to be concerned before it could be considered for classification.[78]
Those were military plans, weapons, or operations; foreign government
information; intelligence activities, sources, or methods; foreign relations or
foreign activities of the United States; scientific, technological, or economic
matters relating to the national security; U.S. government programs for
safeguarding nuclear materials or facilities; or “other” categories specially
determined by the president, a presidential designee, or an agency head.[79]
If information concerned one of those areas, and “its unauthorized disclosure
reasonably could be expected to cause at least identifiable damage to the national security [emphasis added],”
then it could be classified.[80]
Although prior EOs had not designated specific areas that could be classified,
they had mentioned most of those areas in examples of what constituted Top
Secret or Secret information, and EO 11652 had indicated other areas in the
types of information exempt from the General Declassification Schedule.[81]
Also, prior EOs had not required identifiable
damage.
In addition to specifying “categories of information” related to
the national security that could be classified, EO 12065 identified two of
those categories as being especially sensitive. Section 1-303 stated that
“Unauthorized disclosure of foreign government information or the identity of a
confidential foreign source is presumed to cause at least identifiable damage
to the national security.” Executive Order 12065 was the first EO to state such
presumptions. However, in EO 11652, foreign government information and
intelligence sources were included in the categories of information eligible
for exemption from the General Declassification Schedule.[82]
Executive Order 12065 contained, for
the first time in an EO,
an explicit statement on balancing the public’s right to be informed of
governmental activities against national security requirments. Section 3-303
stated:
It is presumed that
information which continues to meet the classification requirements in Section
1-3 requires continued protection. In some cases, however, the need to protect
such information may be outweighed by the public interest in disclosure of the
information, and in these cases the information should be declassified.
Balancing
was also mentioned in the preamble to the order (see above).
Maximum allowed duration of classification ranged from 6 to 30
years, depending upon specified criteria for the information. Documents
classified for more than 6 years had to be marked with the name of the official
who authorized the prolonged classification, and the reason for the extended
classification had to be noted on the document. Periodic review for
classification was required for documents whose classification was extended
beyond 20 years.
Prohibitions against classification (Sect. 1-601) were similar to
those in the preceding order but added a prohibition against classification “to
conceal violations of law.”
Mention of basic research was included for the first time in an
EO on classification of information. Section 1-602 stated that “basic
scientific research information not clearly related to the national security
may not be classified.” Also new was a prohibition against reclassification of
information: “Classification may not be restored to documents already
declassified and released to the public under this Order or prior Orders.”[83]
Derivative classification and classification guides were
mentioned for the first time in an EO dealing with classification. Although
“Derivative Classifiers” were not specifically defined, they were, by
implication, “persons who only reproduce, extract, or summarize classified
information, or who only apply classification markings derived from source
material or as directed by a classification guide.”[84]
Classification guides were discussed in Sects. 2‑2 and 5-403.
“Agencies with original classification authority shall promulgate guides for
security classification that will facilitate the identification and uniform
classification of information requiring protection under the provisions of this
Order.”[85]
Each guide had to be approved by either an agency head or by a person with Top
Secret original classification authority.[86]
Declassification was stressed in EO 12065: “Declassification of
classified information shall be given emphasis comparable to that accorded
classification.”[87]
Certain agency officials had the authority to determine that “the need to
protect such information [which continued to meet classification requirements]
may be outweighed by the public interest in disclosure of the information, and
in these cases the information should be declassified.”[88]
The NSC was given responsibility of overall policy direction for
the government’s information security program.[89]
This was the first explicit statement in an EO on responsibility for
information security policy. The Administrator of General Services was
responsible for implementing the order and for monitoring programs established
pursuant to the order.[90]
This responsibility was delegated to the Information Security Oversight Office
(ISOO), a new Office which replaced the Interagency Classification Review
Committee. The ISOO was an administrative part of the General Services
Administration but received its policy direction from the NSC.
The Director of ISOO was to act on “complaints and suggestions
from persons within or outside the Government with respect to the
administration of the information security program.”[91]
Appeals on certain declassification decisions could be taken to the ISOO
Director and thence, in some instances, to the NSC.[92]
This was the first specification in an EO of an appeals procedure for
classification decisions.
Administrative sanctions were to be applied to “officers and
employees of the U.S. Government” if they “knowingly and willfully” violated
the provisions of the EO.[93]
An Interagency Information Security
Committee was established by the order.[94]
Membership included representatives from the Departments of State, Defense,
Treasury, and Energy, the Attorney General, the Director of the CIA, the NSC,
the Domestic Policy Staff, and the Archivist of the United States. Chairman of
this committee was the Director of ISOO. “This Committee shall meet at the call
of the Chairman or at the request of a member agency and shall advise the
Chairman on implementation of this order.”[95]
Executive Order 12356
Executive Order 12356, “National Security Information,” was
issued by President Reagan and became effective on August 1, 1982.[96]
“National security” was defined in Sect. 6.l(e) as “the national defense or foreign
relations of the United States” and was the same definition as in the prior EO.
Information was defined in Sect. 6.l(b) to mean “any information or material,
regardless of its physical form or characteristics, that is owned by, produced by or for, or is under
the control of the U.S. Government” [emphasis added]. “National security
information” was defined for the first time in an EO, in Sect. 6.1(c), to mean
“information that has been determined pursuant to this Order or any predecessor
order to require protection against unauthorized disclosure and that is so
designated.”
The definitions for Top Secret and Secret remained the same as in
EO 12065, but the definition for Confidential was changed to require only
“damage” to the national security, rather than “identifiable damage,” as was
required by the previous order. Prior to EO 12065, the criterion was “damage,”
so EO 12356 reverted to the criterion for Confidential information that was
used prior to EO 12065. However, it should be noted that EO 12065 had stated
that “information may not be classified unless . . . its unauthorized
disclosure reasonably could be expected to cause at least identifiable damage
to the national security.” Therefore, EO 12356 eliminated the “identifiable
damage” requirement for a determination that information was classified.
Section 1.1(c) of EO 12356 stated:
If there is reasonable doubt
about the need to classify information, it shall be safeguarded as if it were
classified pending a determination by an original classification authority, who
shall make this determination within thirty (30) days. If there is reasonable
doubt about the appropriate level of classification, it shall be safeguarded at
the higher level of classification pending a determination by an original classification
authority, who shall make this determination within thirty (30) days.
That
was a change from the previous EO, which required that, if there was doubt, the
less restrictive approach would be followed (the lower classification was to be
used).
Section 1.3(a) of EO 12356 identified ten areas (“classification
categories”) with which information had to be concerned before it could be
considered for classification. In addition to the seven areas specified by the
previous EO, EO 12356 added “the vulnerabilities or capabilities of systems,
installations, projects, or plans related to the national security,”
“cryptology,” and “a confidential source.” Additionally, EO 12356 added a
parenthetical expression “including special activities” to the area of intelligence
activities so that this category of classifiable information now read
“intelligence activities (including special activities), or intelligence
sources or methods.”
Executive Order 12356 stated that before information that
concerned one or more of the ten categories could be classified, an original
classifier had to determine “that its unauthorized disclosure, either by itself
or in the context of other information, reasonably could cause damage to the
national security.”[97]
This two-step process (determining category and damage) for classification of
NSI was also required by the previous EO. However, EO 12356 added the phrase
“either by itself or in the context of other information,” which is said to be
recognition of the “compilation” theory that has been used in the Department of
Defense in special circumstances.[98]
However, it seems more reasonable to interpret this in terms of classification
of associations, rather than of compilations. Executive Orders 10290 and 10501
(Truman and Eisenhower) had stated that “Documents shall be classified
according to their own content and not necessarily according to their
relationships to other documents.”[99]
Such a statement was not in EOs 11652 or 12065.
Note that EO 12065 stated that “references to classified
documents that do not disclose classified information may not be classified or
used as a basis for classification.”[100]
Similar language was in earlier EOs.32,60,63 That language was
absent from EO 12356.
Section 1.3(c) stated a presumption that damage occurred on the
disclosure of information in certain categories and thereby waived the
damage-determination step of the classification process for those categories.
That section stated that “unauthorized disclosure of foreign government
information, the identity of a confidential foreign source, or intelligence
sources or methods is presumed to cause damage to the national security.” This
“presumption of damage” provision was expanded from EO 12065 to include
intelligence sources or methods.
Section 1.3(d) stated that “information classified in accordance
with Section 1.3 shall not be declassified automatically as a result of any
unofficial publication or unauthorized disclosure in the United States or
abroad of identical or similar information.” This, together with a “no comment”
policy on unofficial publications of information concerning classified
projects, ensured that declassification actions were controlled by the
government.
Executive Order 12356 abolished duration of classification of
information limitations specified in prior EOs. Section 1.4(a) stated that
“Information shall be classified as long as required by national security
considerations. When it can be determined, a specific date or event for
declassification shall be set by the original classification authority at the
time the information is originally classified.” That was a significant change
from EO 12065, which included 6-, 20‑, and 30-year limitations for the
duration of classification for certain types of information.
The markings required on classified documents or other forms of
classified information were stated in Sect. 1.5(a). Those markings were (1) one
of the three classification levels, (2) the identity of the original
classification authority if other than
the person whose name appears as the approving or signing official, (3) the
agency and office of origin, and (4)
the date or event for declassification or
the notation “Originating Agency’s Determination Required” (the
requirements different from EO 12065 are italicized). Those markings were
required unless a marking itself would reveal a confidential source or
relationship not otherwise evident in the document or information.
The portion-marking requirement could be waived by agency heads
for specific classes of documents or information.[101]
The previous EO gave this waiver authority only to the ISOO Director.
Section 1.6(c) provided for the reclassification of declassified
information under certain circumstances. This section stated that the president
or a designated agency head or official “may reclassify information previously
declassified and disclosed if it is determined in writing that (1) the
information requires protection in the interest of national security; and (2)
the information may reasonably be recovered.” This statement contrasted with
the previous EO, which stated that “classificatio
Security Classification of Information: Table of Contents