CRS Reports – Week of 1-28-23 – Classified Information

This week, with increasing congressional interest in the various classified document discoveries in homes of former president and vice presidents, the Congressional Research Service published two reports on the protection of classified information:

Rules and Statutes Relevant to Safeguarding Classified Materials, and

The Protection of Classified Information: The Legal Framework

The first is a three-page overview of the legal standards that apply to protecting classified information. The second is a more in depth (30 page) look at the following related topics:

• Executive Order 13,526,

• Handling of Unauthorized Disclosures by:

◦ Information Security Oversight Office,

◦ Intelligence Community,

◦ Department of Defense,

◦ Department of State,

• Penalties for Unauthorized Disclosure,

• Declassification vs. Leaks and “Instant Declassification”,

• Special Considerations for the President, and

• Insider Threat Risk Management.

Interestingly, neither report contains an ‘issues for Congress’ section. This is almost certainly due to the fact that information classification is almost purely an Executive Branch function. This is discussed in the ‘Background Information’ section of the second document:

“The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power in this area. Citing the President’s constitutional role as commander in chief, the Supreme Court has repeatedly stated in dicta (i.e., language that does not constitute a legal determination) that “[the President’s] authority to classify and control access to information bearing on national security . . . flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” This language has been interpreted to indicate that the President has plenary authority to control classified information.”