The Protection of Classified Information:
The Legal Framework
Updated August 12, 2022
Congressional Research Service
https://crsreports.congress.gov
RS21900

The Protection of Classified Information: The Legal Framework

Summary
This report provides an overview of the relationship between executive and legislative authority
over national security information. It summarizes the current laws that form the legal framework
protecting classified information, including current executive orders and some agency regulations
pertaining to the handling of unauthorized disclosures of classified information by government
officers and employees. The report also summarizes criminal laws that pertain specifically to the
unauthorized disclosure of classified information, as well as civil and administrative penalties.
Finally, the report discusses insider risk management measures.
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The Protection of Classified Information: The Legal Framework

Background
Prior to the New Deal, decisions regarding classification of national security information were
left to military regulation.1 In 1940, President Franklin Roosevelt issued an executive order
authorizing government officials to protect information pertaining to military and naval
installations.2 Presidents since that time have continued to set the federal government’s
classification standards by executive order, but with one critical difference: while President
Roosevelt cited specific statutory authority for his action,3 later Presidents have cited general
statutory and constitutional authority.4
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,5 the Supreme Court has repeatedly stated in dicta 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.”6 This language has been interpreted by some to indicate that the President
has plenary authority to control classified information.7 On the other hand, the Supreme Court has

1 See Harold Relyea, The Presidency and the People’s Right to Know, in THE PRESIDENCY AND INFORMATION POLICY 1,
16-18 (1981).
2 Exec. Order No. 8381, 5 Fed. Reg. 1147 (Mar. 26, 1940).
3 See id. (citing the act of January 12, 1938, 52 Stat. 3, § 1).
4 See, e.g., Exec. Order No. 10501 (1953); Exec. Order No. 13292 (2003). President Obama’s executive order on
classified information, Exec. Order No. 13526, 75 Fed. Reg. 707, 1013 (Dec. 29, 2009), also cites constitutional
authority. The Trump Administration did not issue a new executive order pertaining to classified information, nor has
the Biden Administration.
5 U.S. CONST., art. II, § 2; CONG. RES. SERV., Constitution Annotated: Analysis and Interpretation of the U.S.
Constitution, ArtII.S2.C1.1.1 Historical Background, https://constitution.congress.gov/browse/essay/artII-S2-C1-1-1/
ALDE_00001127/.
6 Department of the Navy v. Egan, 484 U.S. 518, 527 (1988) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886,
890 (1961)). In addition, courts have also been wary to second-guess the executive branch in areas of national security.
See, e.g., Haig v. Agee, 453 U.S. 280, 291 (1981) (“Matters intimately related to foreign policy and national security
are rarely proper subjects for judicial intervention.”). The Court has suggested, however, that it might intervene where
Congress has provided contravening legislation. Egan, 484 U.S. at 530 (“Thus, unless Congress specifically has
provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military
and national security affairs.”) (emphasis added).
7 President George W. Bush objected to some provisions of the Intelligence Reform and Terrorism Prevention Act, P.L.
108-458 (2004), that he viewed as impeding on presidential prerogatives:
Several provisions of the Act, including Title III and section 7601, purport to regulate access to
classified national security information. The Supreme Court of the United States has stated that the
President’s authority to classify and control access to information bearing on national security
flows from the Constitution and does not depend upon a legislative grant of authority. The
executive branch shall construe such provisions in a manner consistent with the Constitution’s
commitment to the President of the executive power, the power to conduct the Nation’s foreign
affairs, and the authority as Commander in Chief.
Statement on Signing the Intelligence Reform and Terrorism Prevention Act of 2004, 2004 PUB. PAPERS 3118, 3119
(Dec. 17, 2004). President Bush used similar language to object to other provisions regarding congressional
notification. See, e.g., 2002 PUB. PAPERS 46, 47-48 (Jan. 10, 2002); id. at 1870 (Oct. 23, 2002); 2003 PUB. PAPERS 1217
(Sept. 30, 2003); id. at 1603 (Nov. 22, 2003); 2004 PUB. PAPERS 1494 (Aug. 5, 2004); 2005 PUB. PAPERS 1794 (Nov.
30, 2005; id. at 1901 (Dec. 5, 2005); 2006 PUB. PAPERS 1152, 1153 (June 15, 2006); id. at 1733 (Sept. 29, 2006).
President Trump used nearly identical language to object to a provision in the Consolidated Appropriations Act of
2017, P.L. 115-31 (2017), that requires 30 days’ advance congressional notification prior to establishing a new special
access program (§ 8009). In his signing statement, President Trump wrote:
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suggested that “Congress could certainly [provide] that the Executive Branch adopt new
[classification procedures] or [establish] its own procedures—subject only to whatever limitations
the Executive Privilege may be held to impose on such congressional ordering.”8 In fact,
Congress established a separate regime in the Atomic Energy Act for the protection of nuclear-
related “Restricted Data.”9
Congress has also directed the President to establish procedures governing the access to classified
material so that generally no person can gain such access without having undergone a background
check.10 In addition, Congress directed the President, in formulating the classification procedures,
to adhere to certain minimum standards of due process with regard to access to classified
information.11 These standards include establishing uniform procedures for, inter alia,
background checks, denial of access to classified information, and notice of such denial.12 There
is an exception to the due process requirements, however, where compliance could damage
national security, although the statute directs agency heads to submit a report to the congressional
intelligence committees in such a case.13
With the authority to determine classification standards vested in the President, these standards
often change when a new administration takes control of the White House.14 The differences
between the standards of one administration and the next have at times been dramatic. As one
congressionally authorized commission put it in 1997:
The rules governing how best to protect the nation’s secrets, while still insuring that the
American public has access to information on the operations of its government, past and

The President’s authority to classify and control access to information bearing on the national
security flows from the Constitution and does not depend upon a legislative grant of authority.
Although I expect to be able to provide the advance notice contemplated by section 8009 in most
situations as a matter of comity, situations may arise in which I must act promptly while protecting
certain extraordinarily sensitive national security information. In these situations, I will treat these
sections in a manner consistent with my constitutional authorities, including as Commander in
Chief.
Statement by President Donald J. Trump on Signing H.R. 244 into Law (May 5, 2017),
https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-donald-j-trump-signing-h-r-244-law/;
see also Steven Aftergood, Trump Objects to Legislated Limits on Secrecy, FED’N AM. SCIENTISTS: SECRECY NEWS
(May 8, 2017), https://fas.org/blogs/secrecy/2017/05/trump-saps/ (noting similarity between Supreme Court Egan
quote and President’s claim).
8 EPA v. Mink, 410 U.S. 73, 83 (1973).
9 42 U.S.C. §§ 2162-69 (2017). In addition, the Invention Secrecy Act, 35 U.S.C. §§ 181-88 (2017), authorizes the
Commissioner of Patents to keep secret those patents on inventions in which the government has an ownership interest
and the widespread knowledge of which would, in the opinion of the interested agency, harm national security. For a
more detailed discussion of these and other regulatory regimes for the protection of sensitive government information,
see CRS Report R41404, Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information, by
Stephen P. Mulligan and Jennifer K. Elsea.
10 Counterintelligence and Security Enhancement Act of 1994, Title VIII of Pub. L. No. 103-359, 108 Stat. 3423, 3434
(codified at 50 U.S.C. §§ 3161-64). Congress has also required specific regulations regarding personnel security
procedures for employees of the National Security Agency, Pub. L. No. 88-290, 78 Stat. 168 (1964) (codified at 50
U.S.C. §§ 831-35).
11 50 U.S.C. § 3161(a).
12 Id.
13 Id. § 3161(b). The House Conference Report that accompanied this legislation in 1994 suggests that Congress
understood that the line defining the boundaries of executive and legislative authority in this area is blurry at best. The
conferees made explicit reference to the Egan case, expressing their desire that the legislation not be understood to
affect the President’s authority with regard to security clearances. See H.R. REP. NO. 103-753, at 54.
14 See Report of the Commission on Protecting and Reducing Government Secrecy, S. DOC. NO. 105-2, at 11 (1997).
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present, have shifted along with the political changes in Washington. Over the last fifty
years, with the exception of the Kennedy Administration, a new executive order on
classification was issued each time one of the political parties regained control of the
Executive Branch. These have often been at variance with one another ... at times even
reversing outright the policies of the previous order.15
Various congressional committees have investigated ways to bring some continuity to the
classification system and to limit the President’s broad powers to shield information from public
examination.16 In 1966, Congress passed the Freedom of Information Act (FOIA),17 creating a
presumption that government information will be open to the public unless it falls into one of
FOIA’s exceptions. One exception covers information that, under executive order, must be kept
secret for national security or foreign policy reasons.18 In 2000, Congress enacted the Public
Interest Declassification Act of 2000,19 which established the Public Interest Declassification
Board to advise the President on matters regarding the declassification of certain information.
However, the act expressly disclaims any intent to restrict agency heads from classifying or
continuing the classification of information under their purview, nor does it create any rights or
remedies that may be enforced in court.20 Congress also passed the Reducing Over-Classification
Act, P.L. 111-258 (2010), which, among other things, requires executive branch agencies’
inspectors general to conduct assessments of their agencies’ implementation of classification
policies.21
Congress occasionally takes an interest in declassification of specific materials that might be
deemed essential for some public purpose. The procedural rules of both the Senate and House
provide a means for disclosing classified information in the intelligence committees’ possession
where the intelligence committee of the respective house (either the House Permanent Select
Committee on Intelligence (HPSCI) or the Senate Select Committee on Intelligence (SSCI))
determines by vote that such disclosure would serve the public interest.22 In the event the
intelligence committee votes to disclose classified information that was submitted by the
executive branch, and the executive branch requests it be kept secret, the committee is required to
notify the President prior to disclosure. The information may be disclosed after five days
following notification unless the President formally objects and certifies that the threat to the U.S.
national interest outweighs any public interest in disclosing it, in which case the question may be
referred to the full chamber.23

15 Id.
16 See, e.g., Availability of Information from Federal Departments and Agencies: Hearings Before the House
Committee on Government Operations, 85th Cong. (1955).
17 Pub. L. No. 89-554, 80 Stat. 383 (1966) (codified as amended at 5 U.S.C. § 552).
18 5 U.S.C. § 552(b)(1). The Supreme Court has honored Congress’s deference to executive branch determinations in
this area. EPA v. Mink, 410 U.S. 73 (1973). Congress, concerned that the executive branch may have declared some
documents to be “national security information” that were not vital to national security, added a requirement that such
information be “properly classified pursuant to an executive order.” 5 U.S.C. § 552(b)(1)(B).
19 Pub. L. No. 106-567, title VII, 114 Stat. 2831, 2856 (2000) (codified as amended at 50 U.S.C. § 3355-55g).
20 Id. §§ 705 and 707 (codified at 50 U.S.C. §§ 3355c, 3355e).
21 Pub. L. No. 111-258 § 6, 124 Stat. 2648, 2651 (2010) (codified at 50 U.S.C. § 3161 note).
22 Rules of the House of Representatives, 117th Congress, Rule X, 11(g)(1); S. Res. 400, 94th Congress, Sec. 8(a).
23 Rules of the House of Representatives, 117th Congress, Rule X, 11(g)(2); S. Res. 400, 94th Congress, Sec. 8(b). The
House and Senate Rules regarding the vote to disclose classified information are substantially similar, although the
Senate Manual additionally requires notification to the Majority and Minority Leaders.
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It does not appear that, to date, either house has invoked its procedure for disclosing classified
information. In fact, in at least one instance, Congress deferred to the executive branch even with
respect to materials prepared by Congress,24 albeit perhaps using documents obtained from the
executive branch. One example of congressional declassification procedure involved the 28 pages
of classified text from the report of the Joint Inquiry of the HPSCI and the SSCI into the
Intelligence Community Activities Before and After the Terrorist Attacks of September 11,
2001.25 The report of the Joint Inquiry was completed in 2002 and referred to the executive
branch for a classification review, which determined that three of the four parts of the report
could be disclosed to the public, but that the disclosure of a portion of the report would pose
national security risks.26 Despite calls for the release of the 28 pages by some Members and
former Members,27 and legislative proposals to mandate disclosure,28 the intelligence committees
awaited a declassification review by the intelligence community before releasing the material in
redacted form.29
Another notable instance in which Congress sought and procured the declassification of
government information involved records pertaining to prisoners of war and personnel listed as
missing in action after the Vietnam War (“POW/MIA”).30 Congress initially required certain
agencies to provide information regarding “live-sightings” of such personnel to next of kin, with
the exception of “information that would reveal or compromise sources and methods of
intelligence collection.”31 Congress subsequently directed the Department of Defense (DOD) to
create an accessible library of documents related to POW/MIA, excluding records that would be
exempt under certain provisions of FOIA.32 The Senate Select Committee on POW/MIA Affairs
considered invoking the procedural rule described above to declassify relevant documents, but
deemed that untested avenue unsuitable because it would have required the Committee to identify
the documents beforehand and to have had them in its possession. Furthermore, enforcement of
the measure would have required the full vote of the Senate.33 Instead, Members wrote to
President George H. W. Bush requesting an executive order to accomplish the declassification of

24 See, e.g., S. REP. NO. 114-8 at 12 (describing negotiations between the Chairman of the SSCI and the Obama
Administration regarding redactions necessary to release an unclassified version of the Committee’s executive
summary to its report on the Central Intelligence Agency’s detention and interrogation of detainees).
25 H. REP. NO. 107-792.
26 See Director of National Intelligence, Statement by the ODNI on the Declassification of Part Four of the SSCI and
HPSCI’s 2002 Report on the Committees’ Joint Inquiry into Intelligence Community Activities Before and After the
Terrorist Attacks of September 11, 2001 (July 15, 2016), https://www.dni.gov/index.php/newsroom/congressional-
testimonies/congressional-testimonies-2016/item/1612-statement-by-the-odni-on-the-declassification-of-part-four-of-
the-ssci-and-hpsci-s-2002-report-on-the-committees-joint-inquiry-into-intelligence-community-activities-before-and-
after-the-terrorist-attacks-of-september-11-2001.
27 See Carl Hulse, Claims Against Saudis Cast New Light on Secret Pages of 9/11 Report, N.Y. TIMES, Feb. 4, 2015,
https://www.nytimes.com/2015/02/05/us/claims-against-saudis-cast-new-light-on-secret-pages-of-9-11-report.html.
28 E.g., S. 1471 (114th Cong.); H. Res. 779 (114th Cong.); H. Res. (114th Cong.).
29 See CRS Report RL33533, Saudi Arabia: Background and U.S. Relations, by Christopher M. Blanchard, appendix
C.
30 See Report of the Select Committee on POW/MIA Affairs, S. REP. NO. 103-1, at 233-44, available at
http://lcweb2.loc.gov/frd/pow/senate_house/pdf/report_S.pdf.
31 Pub. L. No. 100-453 § 404, 102 Stat. 1904, 1908 (1988) (codified at 50 U.S.C. § 3161 note).
32 Pub. L. No. 102-190, div. A, § 1082, 105 Stat. 1290, 1480 (1991) (codified at 50 U.S.C. § 3161 note). The
POW/MIA database was created at the Library of Congress and may be accessed at http://lcweb2.loc.gov/frd/pow/
powhome.html.
33 S. REP. NO. 103-1 at 237.
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relevant records,34 which was followed by a resolution expressing the sense of the Senate that the
President should expeditiously issue an executive order for the declassification, without
compromising national security, of relevant documents.35 President Bush complied.36
Congress has directed the President or agency heads through legislation to undertake a
declassification review of records pertaining to specific matters and to release them as
appropriate. For example, Congress in 2000 directed the President to “order all Federal agencies
and departments that possess relevant information [about the murders of churchwomen in El
Salvador] to make every effort to declassify and release” them to victims’ families.37 In 2002,
Congress directed the Secretary of Defense to submit to Congress and to the Secretary of
Veterans Affairs “a comprehensive plan for the review, declassification, and submittal” of all
information related to Project 112—a series of biological and chemical warfare vulnerability tests
conducted by the Department of Defense38—that would be relevant for that project’s participants’
health care.39 In 2004, Congress directed the Secretary of Defense to “review and, as determined
appropriate, revise the classification policies of the Department of Defense with a view to
facilitating the declassification of data that is potentially useful for the monitoring and assessment
of the health of members of the Armed Forces who have been exposed to environmental hazards
during deployments overseas.”40 In 2007, Congress directed the Director of the Central
Intelligence Agency (CIA) to make public a version of the executive summary of the CIA Office
of the Inspector General report on “CIA Accountability Regarding Findings and Conclusions of
the Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of
September 11, 2001,” declassified “to the maximum extent possible, consistent with national
security.”41 In 2014, Congress directed the Director of National Intelligence (DNI) to conduct a
declassification review of documents collected during the raid that killed Osama bin Laden,
requiring a justification for materials that remain classified after the review.42 In 2022, Congress
directed the Director of National Intelligence to conduct a declassification review to “determine
what, if any, additional information relating to the terrorist attacks of September 11, 2001” can be
released to the public.43

34 Id. at 237-38.
35 S. Res. 324 (102d Cong.).
36 Exec. Order No. 12812, 57 Fed. Reg. 32879 (July 22, 1992).
37 Pub. L. No. 106-429, § 587, 114 Stat. 1900, 1900A–58 (2000).
38 See U.S. Department of Veterans Affairs, Public Health, About Project 112 and Project SHAD, available at
https://www.publichealth.va.gov/exposures/shad/basics.asp.
39Pub. L. No. 107-314, div. A, § 709, 116 Stat. 2458, 2586 (2002) (previously codified at 10 U.S.C. § 1074 note). For
information about Project 112 and related veterans’ health benefits, visit the Department of Veterans Affairs website at
http://www.benefits.va.gov/COMPENSATION/claims-postservice-exposures-project_112_shad.asp.
40 Pub. L. No. 108-375, div. A, § 735, 118 Stat. 1900, 1999 (2004) (codified as amended at 10 U.S.C. § 1074 note).
41 Pub. L. No. 110-53, § 605, 121 Stat. 226, 337 (2007).
42 Pub. L. No. 113-126, § 313, 128 Stat. 1390, 1399 (2014).
43 Pub. L. No. 117-103, div. X, § 310, 136 Stat. 49, 972 (2022) (codified at 50 U.S.C. § 3161 note). In 2021, President
Biden directed the Attorney General and other agency heads to review for declassification certain information pertinent
to litigation related to possible Saudi government involvement in September 11, Declassification Reviews of Certain
Documents Concerning the Terrorist Attacks of September 11, 2001, Exec. Order No. 1404086, Fed. Reg. 50439 (Sept.
9, 2021).
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Executive Order 13526
The current standards for classifying and declassifying information were last amended on
December 29, 2009, in Executive Order 13526.44 Under these standards, the President, Vice
President, agency heads, and any other officials designated by the President may classify
information upon a determination that the unauthorized disclosure of such information could
reasonably be expected to damage national security.45 Such information must be owned by,
produced by, or under the control of the federal government, and must concern one of the
following:
 military plans, weapons systems, or operations;
 foreign government information;
 intelligence activities, intelligence sources/methods, cryptology;
 foreign relations or foreign activities of the United States, including confidential
sources;
 scientific, technological, or economic matters relating to national security;
 federal programs for safeguarding nuclear materials or facilities;
 vulnerabilities or capabilities of national security systems; or
 weapons of mass destruction.46
Information may be classified at one of three levels based on the amount of danger that its
unauthorized disclosure could reasonably be expected to cause to national security.47 Information
is classified as “Top Secret” if its unauthorized disclosure could reasonably be expected to cause
“exceptionally grave damage” to national security.48 The standard for “Secret” information is
“serious damage” to national security, while for “confidential” information the standard is
“damage” to national security.49 Significantly, for each level, the original classifying officer must
identify or describe the specific danger potentially presented by the information’s disclosure.50 In
case of significant doubt as to the need to classify information or the level of classification
appropriate, the information is to remain unclassified or be classified at the lowest level of
protection considered appropriate.51
The officer who originally classifies the information establishes a date for declassification based
upon the expected duration of the information’s sensitivity. If the office cannot set an earlier
declassification date, then the information must be marked for declassification in 10 years’ time

44 Classified National Security Information, Exec. Order No. 13526, 3 C.F.R. 298 (2009). For a more detailed
description and analysis, see CRS Report R41528, Classified Information Policy and Executive Order 13526.
45 Exec. Order No. 13526 § 1.1. The unauthorized disclosure of foreign government information is presumed to damage
national security. Id. § 1.1(b).
46 Id. § 1.4. In addition, when classified information is incorporated, paraphrased, restated, or generated in a new form,
that new form must be classified at the same level as the original. Id. §§ 2.1 - 2.2.
47 Id. § 1.2.
48 Id. § 1.2(a)(1).
49 Id. § 1.2(a)(2).
50 Id. Classifying authorities are specifically prohibited from classifying information for reasons other than protecting
national security, such as to conceal violations of law or avoid embarrassment. Id. § 1.7(a).
51 Id. §§ 1.1-1.2. This presumption is a change from the predecessor order.
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or 25 years, depending on the sensitivity of the information.52 The deadline for declassification
can be extended if the threat to national security still exists.53
Classified information is required to be declassified “as soon as it no longer meets the standards
for classification.”54 The original classifying agency has the authority to declassify information
when the public interest in disclosure outweighs the need to protect that information.55 On
December 31, 2006, and every year thereafter, all information that has been classified for 25
years or longer and has been determined to have “permanent historical value” under Title 44 of
the U.S. Code will be automatically declassified, although agency heads can exempt from this
requirement classified information that continues to be sensitive in a variety of specific areas.56
Agencies are required to review classification determinations upon a request for such a review
that specifically identifies the materials so that the agency can locate them, unless the materials
identified are part of an operational file exempt under the Freedom of Information Act (FOIA)57
or are the subject of pending litigation.58 This requirement does not apply to information that has
undergone declassification review in the previous two years; information that is exempted from
review under the National Security Act;59 or information classified by the incumbent President
and staff, the Vice President and staff (in the performance of executive duties), commissions
appointed by the President, or other entities within the executive office of the President that
advise the President.60 Each agency that has classified information is required to establish a
system for periodic declassification reviews.61 The National Archivist is required to establish a
similar systemic review of classified information that has been transferred to the National
Archives.62
Access to classified information is generally limited to those who demonstrate their eligibility to
the relevant agency head, sign a nondisclosure agreement, and have a need to know the
information.63 Agency heads or senior agency officials of originating agencies may make waivers
of the need-to-know requirement available for former Presidents and Vice Presidents, historical
researchers, and former policy-making officials who were appointed by the President or Vice
President.64 The information being accessed may not be removed from the controlling agency’s

52 Exec. Order No. 13526 at § 1.5. Exceptions to the time guidelines are reserved for information that can be expected
to reveal the identity of a human intelligence source or key design concepts of weapons of mass destruction. Id.
53 Id. § 1.5(c).
54 Id. § 3.1(a).
55 Id. § 3.1(d).
56 Id. § 3.3.
57 5 U.S.C. § 552. For more information, see CRS Report R46238, The Freedom of Information Act (FOIA): A Legal
Overview, by Daniel J. Sheffner.
58 Exec. Order No. 13526 § 3.5.
59 50 U.S.C. §§ 3141-43.
60 Exec. Order No. 13526 § 3.5.
61 Id. § 3.4. “Need-to-know” is based on a determination within the executive branch in accordance with relevant
directives that a prospective recipient “requires access to specific classified information in order to perform or assist in
a lawful and authorized governmental function.” Id. § 6.1(dd).
62 Id. § 3.4. Exec. Order No. 13526 creates a new National Declassification Center (NDC) within the National Archives
to facilitate and standardize the declassification process. Id. § 3.7. For more information about the NDC, see CRS
Report R41528, Classified Information Policy and Executive Order 13526.
63 Exec. Order No. 13526 § 4.1.
64 Id. § 4.4.
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premises without permission.65 Each agency is required to establish systems for controlling the
distribution of classified information.66
The Information Security Oversight Office (ISOO)—an office within the National Archives—is
charged with overseeing compliance with the classification standards and promulgating directives
to that end.67 ISOO is headed by a Director, who is appointed by the Archivist of the United
States, and who has the authority to order declassification of information that, in the Director’s
view, is classified in violation of the aforementioned classification standards.68 In addition, there
is an Interagency Security Classifications Appeals Panel (ISCAP), headed by the ISOO Director
and made up of representatives of the heads of various agencies, including the Departments of
Defense, Justice, and State, as well as the CIA, and the National Archives.69 ISCAP is empowered
to decide appeals of classifications challenges70 and to review automatic and mandatory
declassifications. If the ISOO Director finds a violation of E.O. 13526 or its implementing
directives, then the Director must notify the appropriate classifying agency so that corrective
steps can be taken.
Handling of Unauthorized Disclosures
Under E.O. 13526, each respective agency is responsible for maintaining control over classified
information it originates and is responsible for establishing uniform procedures to protect
classified information and automated information systems in which classified information is
stored or transmitted. Standards for safeguarding classified information, including the handling,
storage, distribution, transmittal, and destruction of and accounting for classified information, are
developed by the ISOO.71 Persons authorized to disseminate classified information outside the
executive branch are required to ensure it receives protection equivalent to those required
internally72. In the event of a knowing, willful, or negligent unauthorized disclosure (or any such
action that could reasonably be expected to result in an unauthorized disclosure), the agency head
or senior agency official is required to notify ISOO and to “take appropriate and prompt
corrective action.”73 Officers and employees of the United States (including contractors,
licensees, etc.) who commit a violation may be subject, at a minimum, to administrative sanctions
that can range from reprimand to termination.74

65 Id. § 4.1(d).
66 Id. § 4.2.
67 Id. § 5.2.
68 Id. § 3.1(c).
69 Id. § 5.3.
70 Id. § 5.3(b)(1) - (3) For example, an authorized holder of classified information is allowed to challenge the classified
status of such information if the holder believes that status is improper. Id. § 1.8.
71 Id. § 5.1.
72 Id. § 4.1(e).
73 Id. § 5.5(e).
74 Id. § 5.5. Specifically, administrative sanctions available with respect to “officers and employees of the United States
Government, and its contractors, licensees, certificate holders, and grantees” accused of violating government security
regulations, “knowingly, willfully, or negligently,” include “reprimand, suspension without pay, removal, termination
of classification authority, loss or denial of access to classified information, or other sanctions in accordance with
applicable law and agency regulation.” See infra section “Civil Penalties and Other Measures.” Violators may also be
referred to the DOJ for potential criminal prosecution. 32 C.F.R. § 2001.48(e). See infra section “Criminal Penalties.”
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Executive Order 12333, United States Intelligence Activities,75 spells out the responsibilities of
members of the Intelligence Community (IC)76 for the protection of intelligence information,
including intelligence sources and methods. Under Section 1.7 of E.O. 12333, heads of
departments and agencies with organizations in the IC (or the heads of such organizations, if
appropriate) must report possible violations of federal criminal laws to the Attorney General “in a
manner consistent with the protection of intelligence sources and methods.”
In 2019, Congress amended the National Security Act of 194777 to require the heads and
inspectors general (IGs) of IC elements to submit semi-annual reports to the congressional
intelligence committees regarding the opening and completion of investigations of unauthorized
public disclosure of classified information.78 The same provision requires the Assistant Attorney
General for National Security of the DOJ, in consultation with the Director of the Federal Bureau
of Investigation, to provide semi-annual reports to the congressional intelligence committees, the
Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of
Representatives a report on the status of each referral made to DOJ by any IC element regarding
an unauthorized disclosure of classified information made during the preceding year or remaining
open as of the reporting date.79
Information Security Oversight Office
ISOO Directive No. 1 (32 C.F.R. Part 2001) provides further direction for agencies with
responsibilities for safeguarding classified information. Section 2001.41 states:
Authorized persons who have access to classified information are responsible for: (a)
Protecting it from persons without authorized access to that information, to include
securing it in approved equipment or facilities whenever it is not under the direct control
of an authorized person; (b) Meeting safeguarding requirements prescribed by the agency
head; and (c) Ensuring that classified information is not communicated over unsecured
voice or data circuits, in public conveyances or places, or in any other manner that permits
interception by unauthorized persons.80

75 46 Fed. Reg. 59,941 (1981), as amended by Exec. Order No. 13284, 68 Fed. Reg. 4,077 (2003), Exec. Order No.
13355, 69 Fed. Reg. 53,593 (2004) and Exec. Order No. 13470, 73 Fed. Reg. 45,328 (2008)) (reprinted at 50 U.S.C.
§ 3001 note).
76 The Intelligence Community is defined by 50 U.S.C. § 3003(4) and E.O. 12333 to include the Office of the Director
of National Intelligence (ODNI), the Central Intelligence Agency (CIA), the Bureau of Intelligence and Research of the
Department of State (INR), the National Security Service of the Federal Bureau of Investigation (FBI), the Office of
Intelligence and Analysis of the Department of Homeland Security (DHS), the Office of Intelligence or the Coast
Guard (CG), other DHS elements concerned with the analysis of intelligence information, the Office of Intelligence and
Analysis of the Treasury Department, the Energy Department, the Drug Enforcement Agency (DEA), the Defense
Intelligence Agency (DIA), the National Security Agency (NSA), the National Reconnaissance Office (NRO), the
National Geospatial Intelligence Agency (NGA), Army Intelligence, Air Force Intelligence, Navy Intelligence, and
Marine Corps Intelligence, as well as “[s]uch other elements of any other department or agency as may be designated
by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency
concerned, as an element of the intelligence community.”
77 Act July 26, 1947, ch. 343, 61 Stat. 495 (codified as amended at 50 U.S.C. §§ 3001-3243).
78 National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 6718, 113 Stat. 1198, 2228 (2019)
(codified at 50 U.S.C. § 3235). “Unauthorized public disclosure of classified information” is defined as “unauthorized
disclosure of classified information to a journalist or media organization.” 50 U.S.C. § 3235(a)(4).
79 50 U.S.C. § 3235(c). “Unauthorized disclosure of classified information” applies to disclosures made to any
recipient. Id. § 3235(a)(3).
80 32 C.F.R. § 2001.41.
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Section 2001.45 of ISOO Directive No. 181 requires agency heads to establish a system of
appropriate control measures to limit access to classified information to authorized persons.
Section 2001.46 requires that classified information is transmitted and received in an authorized
manner that facilitates detection of tampering and precludes inadvertent access.82 Persons who
transmit classified information are responsible for ensuring that the intended recipients are
authorized to receive classified information and have the capacity to store classified information
appropriately.83 Documents classified “Top Secret” that are physically transmitted outside secure
facilities must be properly marked and wrapped in two layers to conceal the contents, and must
remain under the constant and continuous protection of an authorized courier.84 In addition to the
methods prescribed for the outside transmittal of Top Secret documents, documents classified at
Secret or Confidential levels may be mailed in accordance with the prescribed procedures.85
Agency heads are required to establish procedures for receiving classified information in a
manner that precludes unauthorized access, provides for detection of tampering and confirmation
of contents, and ensures the timely acknowledgment of the receipt (in the case of Top Secret and
Secret information).86
Section 2001.48 prescribes measures to be taken in the event of loss, possible compromise, or
unauthorized disclosure. It states: “Any person who has knowledge that classified information has
been or may have been lost, possibly compromised or disclosed to an unauthorized person(s)
shall immediately report the circumstances to an official designated for this purpose.”87
Agency heads are required to establish appropriate procedures to conduct an inquiry or
investigation into the loss, possible compromise or unauthorized disclosure of classified
information, in order to implement “appropriate corrective actions” and to “ascertain the degree
of damage to national security.”88 The department or agency in which the compromise occurred
must also advise any other government agency or foreign government agency whose interests are
involved of the circumstances and findings that affect their information or interests.89 Agency
heads are to establish procedures to ensure coordination with legal counsel in any case where a
formal disciplinary action beyond a reprimand is contemplated against a person believed
responsible for the unauthorized disclosure of classified information.90 Whenever a criminal
violation appears to have occurred and a criminal prosecution is contemplated, agency heads are
to ensure coordination with the DOJ and the legal counsel of the agency where the individual
believed to be responsible is assigned or employed.91 ISOO must be notified in case of a violation
that (1) is reported to congressional oversight committees; (2) may attract significant public
attention; (3) involves large amounts of classified information; or (4) reveals a potential systemic
weakness in security practices.92

81 32 C.F.R. § 2001.45.
82 32 C.F.R. § 2001.46(a).
83 Id.
84 32 C.F.R. § 2001.46(b)(1).
85 32 C.F.R. § 2001.46(c).
86 32 C.F.R. § 2001.46(f).
87 32 C.F.R. § 2001.48(a).
88 32 C.F.R. § 2001.48(c).
89 32 C.F.R. § 2001.48(b).
90 32 C.F.R. § 2001.48(e).
91 Id.
92 32 C.F.R. § 2001.48(d).
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Intelligence Community
The most recent intelligence community directives related to the safeguarding of classified
information appear to be Intelligence Community Directive (ICD) 700, Protection of National
Intelligence, effective June 7, 2012;93 ICD 701, Security Policy Directive for Unauthorized
Disclosures of Classified Information, effective December 22, 2017;94 and ICD 703, Protection of
Classified National Intelligence, Including Sensitive Compartmented Information, effective June
21, 2013.95 Damage assessments in the event of an unauthorized disclosure or compromise of
classified national intelligence are governed by ICD 732, effective June 27, 2014.96
ICD 700 mandates an integration of counterintelligence and security functions for the purpose of
protecting national intelligence and sensitive information and, among other things, to strengthen
“deterrence, detection, and mitigation of insider threats, defined as personnel who use their
authorized access to do harm to the security of the US through espionage, terrorism, unauthorized
disclosure of information, or through the loss or degradation of resources or capabilities.”97 Under
ICD 701, in the event of a possible unauthorized disclosure,98 the head of the originating IC
element is to conduct an internal investigation to determine if the filing of a Crimes Report with
DOJ is warranted.99 If the investigation determines that a confirmed unauthorized disclosure is
likely to cause damage to the national security, the head of the originating IC element is to report
the incident to the DOJ with notification to the element’s inspector general (IG), the Intelligence
Community Inspector General (ICIG), and the Director of the National Counterintelligence and
Security Center.100 If the DOJ declines prosecution, the ICIG may conduct an independent
administrative investigation in coordination with the relevant IC element’s IG.101 Significant
unauthorized disclosures that may cause “substantial risk to U.S. national security interests” are
to be reported to the congressional intelligence committees.102 The DNI may prohibit the ICIG
from conducting any investigation if she determines such a prohibition would be necessary to
protect vital national security interests, but has to report to the congressional intelligence
committees any exercise of this authority.103
Department of Defense
Department of Defense Directive 5210.50, “Management of Serious Security Incidents Involving
Classified Information” (October 27, 2014),104 prescribes policy and responsibilities for handling

93 Available at https://www.dni.gov/files/documents/ICD/ICD_700.pdf.
94 Available at https://www.dni.gov/files/documents/ICD/10-3-17_Atch1_ICD-701-Unauthorized-Disclosures_17-
00047_U_SIGNED.pdf.
95 Available at https://www.dni.gov/files/documents/ICD/ICD%20703.pdf.
96 Available at https://www.dni.gov/files/documents/ICD/ICD%20732.pdf.
97 ICD 700 § D.4.c.
98 An “unauthorized disclosure” is a “communication, confirmation, acknowledgement, or physical transfer of
classified information, including the facilitation of, or the actual giving, passing, selling, or publishing of, or in any way
making such information available to an unauthorized recipient.” ICD 701 § D.1.
99 Id. § E.3.
100 Id. § D.3.
101 Id. § D.4.
102 Id. § D.6.
103 Id. § D.7 (citing 50 U.S.C. § 3033(f)).
104 Available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/521050p.pdf.
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unauthorized disclosures of classified information to the public and other serious security
incidents. More detailed procedures governing specific types of information possibly
compromised appear in DOD Manual 5200.01, Volume 3, Enclosure 6, “Security Incidents
Involving Classified Information,” February 24, 2012.105 In the event of a known or suspected
disclosure of classified information, the heads of DOD components must take prompt action to
decide the nature and circumstances of the disclosure, determine the extent of damage to national
security, and take appropriate corrective action.106 If the inquiry or investigation turns up
information suggestive of a criminal or counterintelligence nature, component heads are to cease
investigation pending coordination with the relevant Deputy Chief Information Officer (DCIO) or
Defense Counter-Intelligence (CI) component.107
Security inquiries are to be initiated and completed within 10 duty days unless an extension is
required.108 The inquiry is aimed at discovering:
(a) When, where, and how did the incident occur? What persons, situations, or conditions
caused or contributed to the incident?
(b) Was classified information compromised?
(c) If a compromise occurred, what specific classified information and/or material was
involved? What is the classification level of the information disclosed?
(d) If classified material is alleged to have been lost, what steps were taken to locate the
material?
(e) Was the information properly classified?
(f) Was the information officially released?
(g) In cases of compromise involving the public media:
1. In what specific media article, program, book, Internet posting or other item did the
classified information appear?
2. To what extent was the compromised information disseminated or circulated?
3. Would further inquiry increase the damage caused by the compromise?
(h) Are there any leads to be investigated that might lead to identifying the person(s)
responsible for the compromise?
(i) If there was no compromise, and if the incident was unintentional or inadvertent, was
there a specific failure to comply with established security practices and procedures that
could lead to compromise if left uncorrected and/or is there a weakness or vulnerability in
established security practices and procedures that could result in a compromise if left
uncorrected? What corrective action is required?109
Section 7(f) lists factors for determining whether to initiate an additional investigation by a DCIO
or the DOJ in the event classified information appears in the public media:
The accuracy of the information disclosed.

105 DOD Manual 5200.01, Volume 3, DoD Information Security Program: Protection of Classified Information (2012),
https://www.dodcui.mil/Portals/109/Documents/Policy%20Docs/
DoDM%205200.01,%20Vol%203%20DoD%20INFOSEC%20Progam%20—%20Prot%20of%20Class%20Info.pdf.
106 Id. Encl. 6, § 6(a).
107 Id. Encl. 6 § 6(b).
108 Id. Encl. 6 §6 (d)(2).
109 Id. Encl. 6 § 6(d)(4).
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The damage to national security caused by the disclosure and whether there were
compromises regarding sensitive aspects of current classified projects, intelligence
sources, or intelligence methods.
The extent to which the disclosed information was circulated, both within and outside the
Department of Defense, and the number of persons known to have access to it.
The degree to which an investigation shall increase the damage caused by the disclosure.
The existence of any investigative leads.
The reasonable expectation of repeated disclosures.110
If classified DOD information appears in a newspaper or other media, the head of the appropriate
DOD component is responsible for the preparation of a “DOJ Media Leak Questionnaire” to
submit to the Under Secretary of Defense for Intelligence, who prepares a letter for the Chief,
Internal Security Section of the Criminal Division at the DOJ.111 The following eleven
questions112 are to be promptly and fully addressed:
 Date and identity of the media source (article, blog, television, or other oral
presentation) containing classified information.
 Specific statement(s) that are classified, and whether the information is properly
classified.
 Whether disclosed information is accurate.
 Whether the information came from a specific document, and if so, the
originating office and person responsible for its security.
 Extent of official circulation of the information.
 Whether information has been the subject of prior official release.
 Whether pre-publication clearance or release was sought.
 Whether sufficient information or background data has been published officially
or in the press to make educated speculation on the matter possible.
 Whether information is to be made available for use in a criminal prosecution
and the person competent to testify on its classification.
 Whether information has been considered for declassification.
 The effect the disclosure of the classified data might have on the national
defense.113

110 Id. Encl. 6 § 7(f).
111 Id. Encl. 6 § 7(g).
112 The questions apparently originated as part of a Memorandum of Understanding concluded between the DOJ and
elements of the Intelligence Community. See U.S. Congress, Senate Select Committee on Intelligence, Concerning
Unauthorized Disclosure of Classified Information, 106th Cong., 2nd sess., June 14, 2000 (Statement of Attorney
General Janet Reno).
113 DOD Manual 5200.01, Volume 3, Enclosure 6, Appendix 2, “DOJ Media Leaks Questionnaire,” February 24, 2012.
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Department of State
Information security at the State Department114 is governed by 12 FAM 500 and 600.115 The
Bureau of Administration is responsible for implementing E.O. 13526 as it applies to the
classification and declassification of material, the marking of classified material, and relevant
training and guidance.116 The Bureau of Diplomatic Security (DS) is responsible for protecting
classified information and special access programs.117 Senior agency officials have the primary
responsibility for overseeing their respective agency’s information security program, while
supervisors are charged with safeguarding classified information within their organizational
units.118 Individual employees having access to classified material are responsible for maintaining
its security.119
Security incidents are to be reported through the appropriate security officer to DS.120 The
employee suspected of having caused the incident is given an opportunity to provide a statement
of defense or mitigating circumstances, after which the incident is referred to his or her supervisor
and to DS.121 DS is responsible for evaluating security incidents and performing final
adjudication of them and initiation of any further action deemed necessary.122 Investigations of
loss, unauthorized disclosure, or serious compromise of classified information are covered in 12
FAM 228.4 and are the responsibility of the Professional Responsibility Division (DS/ICI/PR) of
the Office of Investigations and Counterintelligence.123 In the event of a “media leak” of
classified information, the originating agency is to undertake an initial investigation to determine
if any other agency had access to the information, and if necessary request that such receiving
agency conduct an appropriate investigation into the unauthorized disclosure.124 The manual notes
that DOJ may decide to prosecute those who disclose classified information without authority, but
does not provide a list of reporting criteria.125
Penalties for Unauthorized Disclosure
In addition to administrative penalties agencies may employ to enforce information security, there
are several statutory provisions that address the protection of classified information as such, but

114 U.S. Department of State Foreign Affairs Manual Volume 12—Diplomatic Security, Part 500, Information Security
and Part 600, Information Security Technology, available at https://fam.state.gov/Volumes/Details/12FAM. 12.FAM
500 applies to all national security and sensitive information that is “owned by, originated by, produced by or for, or
under the control of Foreign Affairs Agencies” at all State Department-controlled locations. 12 FAM 511.1. Foreign
Affairs Agencies include the Department of State, United States Agency for International Development, United States
International Development Finance Corporation, Trade and Development Program, and all other executive branch
personnel located under the jurisdiction of a chief of mission. Id.
115 12 FAM 500 and 600.
116 Id. at 512.1-1.
117 Id.
118 Id. at 512.1.
119 Id. at 512.1-3.
120 Id. at 554.
121 Id. at 555(c)(2), (d)(2).
122 12 FAM 556.
123 Id. at 226.7-2(c).
124 Id. at 226.7-4.
125 See id.
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only certain types of information or in specific situations. There is no blanket prohibition on the
unauthorized disclosure of classified information.126 The Espionage Act itself does not mention
classified information, but prohibits transmittal of national defense information with the relevant
intent or state of mind.127
Criminal Penalties
Generally, federal law prescribes a prison sentence of no more than a five years and/or a fine for
officers and employees of the federal government who knowingly remove classified material
without the authority to do so and with the intention of keeping that material at an unauthorized
location.128 Stiffer penalties—fines and imprisonment for any term of years or for life, or the
death sentence in certain circumstances—attach when anyone transmits classified information to
an individual who they have reason to believe is an agent of a foreign government.129 A fine and a
10-year prison term may also be imposed if an individual publishes, makes available to an
unauthorized person, or otherwise uses to the United States’ detriment classified information
regarding the codes, cryptography, and communications intelligence utilized by the United States
or a foreign government.130 Finally, the disclosure of classified information that reveals any
information identifying a covert agent,131 when done intentionally by a person with authorized
access to such identifying information, is punishable by imprisonment for up to 15 years.132 A
similar disclosure by one who learns the identity of a covert agent as a result of having authorized
access to classified information is punishable by not more than 10 years’ imprisonment.133 Under
the same provision, a person who undertakes a “pattern of activities intended to identify and
expose covert agents” with reason to believe such activities would impair U.S. foreign
intelligence activities, and who then discloses the identities uncovered as a result is subject to
three years’ imprisonment, whether or not the violator has access to classified information.134
Civil Penalties and Other Measures
In addition to the criminal penalties outlined above, the executive branch employs numerous
means of deterring unauthorized disclosures by government personnel using administrative
measures based on terms of employment contracts. The agency may impose disciplinary action or

126 For a broader overview of statutory provisions applicable to specific types of sensitive information, see CRS Report
R41404, Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information, by Stephen P.
Mulligan and Jennifer K. Elsea.
127 18 U.S.C. §§ 793-94. For a detailed description of the Espionage Act, see CRS Report R41404.
128 18 U.S.C. § 1924.
129 50 U.S.C. § 784.
130 18 U.S.C. § 798.
131 “Covert agent” is defined as a present or retired IC employee or member of the Armed Forces assigned to duty with
an intelligence agency whose identity as such is classified; a U.S. citizen who acts as an agent or informant to an
intelligence agency or the FBI whose relationship with the U.S. government is classified; or a non-U.S. citizen who acts
as a present or former agent of or source of operational assistance to an intelligence agency and whose intelligence
relationship to the U.S. government is classified. 50 U.S.C. § 3126(4).
132 Id. § 3121(a).
133 Id. § 3121(b).
134 Id. § 3121(c). “Classified information” for the purpose of this section is defined as “information or material
designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a
regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against
unauthorized disclosure for reasons of national security.” 50 U.S.C. § 3126(1).
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revoke a person’s security clearance. The revocation of a security clearance is usually not
reviewable by the Merit Systems Protection Board135 and may mean the loss of government
employment. Government employees may also be subject to monetary penalties for disclosing
classified information.136 Violators of the Espionage Act and the Atomic Energy Act provisions
may additionally be subject to loss of their retirement pay.137
Agencies also rely on contractual agreements with employees, who typically must sign non-
disclosure agreements prior to obtaining access to classified information,138 sometimes agreeing
to submit all materials that the employee desires to publish to a review by the agency. The
Supreme Court enforced such a contract against a former employee of the CIA, upholding the
government’s imposition of a constructive trust on the profits from a book the employee sought to
publish without first submitting it to CIA for review.139
In 1986, the Espionage Act was amended to provide for the forfeiture of any property derived
from or used in the commission of an offense that violates the Espionage Act.140 Violators of the
Atomic Energy Act may be subjected to a civil penalty of up to $100,000 for each violation of
Energy Department regulations regarding dissemination of unclassified information about nuclear
facilities.141
Under some circumstances, the government can also use injunctions to prevent disclosures of
information. In at least one instance, a court upheld an injunction against a former employee’s
publishing of information learned through access to classified information.142 The Supreme Court
also upheld the State Department’s revocation of passports for overseas travel by persons
planning to expose U.S. covert intelligence agents; the travel’s purpose was to disrupt U.S.
intelligence activities rather than to assist a foreign government.143
Declassification vs. Leaks and
“Instant Declassification”
As noted above, E.O. 13526 sets the official procedures for the declassification of information.
Once information is declassified, it may be released to persons without a security clearance.144

135 See Department of Navy v. Egan, 484 U.S. 518, 526-29 (1988). Federal courts may review constitutional challenges
based on the revocation of security clearance. Webster v. Doe, 486 U.S. 592 (1988).
136 See 42 U.S.C. § 2282(b) (2017) (providing for fine of up to $100,000 for violation of Department of Energy security
regulations).
137 5 U.S.C. § 8312 (listing violations of 18 U.S.C. §§ 793 & 798, 42 U.S.C. § 2272-76, and 50 U.S.C. § 421, among
those for which forfeiture of retirement pay or annuities may be imposed).
138 See United States v. Marchetti, 466 F.2d 1309, 1311-13 (4th Cir.), cert. denied, 409 U.S. 1063 (1972) (enforcing
contractual non-disclosure agreement by former employee regarding “secret information touching upon the national
defense and the conduct of foreign affairs” obtained through employment with CIA).
139 See Snepp v. United States, 444 U.S. 507 (1980); see also Alan E. Garfield, Promises of Silence: Contract Law and
Freedom of Speech, 83 CORNELL L. REV. 261, 274 (1998) (noting the remedy in Snepp was enforced despite the
agency’s stipulation that the book did not contain any classified information).
140 See 18 U.S.C. §§ 793(h), 794(d), 798(d).
141 42 U.S.C. § 2168(b).
142 See Marchetti, 466 F.2d at 1311 (affirming an injunction to prevent a former CIA agent from publishing a book
disclosing government secrets).
143 See Haig v. Agee, 453 U.S. 280, 310 (1981).
144 See generally Report of the Commission on Protecting and Reducing Government Secrecy, S. DOC. NO. 105-2, ch. 3
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Some argue the President has the authority to disclose classified information without going
through the established procedures for declassification.145 Leaks, by contrast, might be defined as
the release of classified information to persons without a security clearance, often journalists. In
2012, some allegedly high-profile leaks of information regarding sensitive covert operations in
news stories that seemed to some to portray the Obama Administration in a favorable light146
raised questions regarding the practice of “instant declassification,” or whether disclosure of
classified information to journalists may ever be said to be an “authorized disclosure” by a senior
official.
The processes for declassification set forth in E.O. 13526 seem to presuppose that agencies and
classifying officials will not have any need or desire to disclose classified information in their
possession other than to comply with the regulations, but there seems to be an informal process
for “instant declassification” of information whose release to the public serves an immediate
need.147 As Representative William Moorhead, at the time chairman of the Foreign Operations
and Government Information Subcommittee of the House Government Operations Committee,
stated in 1974:
Critics of the present system of handling classified information within the Executive
Branch point to an obvious double standard. On one hand, the full power of the
Government’s legal system is exercised against certain newspapers for publishing portions
of the Pentagon Papers and against someone like Daniel Ellsberg for his alleged role in
their being made public. This is contrasted with other actions by top Executive officials
who utilize the technique of “instant declassification” of information they want leaked.
Sometimes it is an “off-the-record” press briefing or “backgrounders” that becomes “on-
the-record” at the conclusion of the briefing or at some future politically strategic time.
Such Executive Branch leaks may be planted with friendly news columnists. Or, the
President himself may exercise his prerogative as Commander in Chief to declassify
specific information in an address to the Nation or in a message to the Congress seeking
additional funds for a weapons system.148
E.O. 13526 does not address an informal procedure for releasing classified information. Section
1.1 of the E.O. provides that “[c]lassified information shall not be declassified automatically as a
result of any unauthorized disclosure of identical or similar information,” but does not address
what happens in the event of a disclosure that was in fact authorized. By definition, classified
information is designated as classified based on whether its unauthorized disclosure can

(1997), available at https://www.govinfo.gov/app/details/GPO-CDOC-105sdoc2/context.
145 Jack Goldsmith, Can Trump Sell U.S. National Security Secrets with Impunity? LAWFARE (Oct. 31, 2020, 10:28
AM), https://www.lawfareblog.com/can-trump-sell-us-national-security-secrets-impunity.
146 See National Security Leaks and the Law, Hearing before the Subcomm. on Crime, Terrorism and Homeland
Security of the H. Comm. on the Judiciary 1-2, 112th Cong. (2012) (statement of Rep. Sensenbrenner) (citing Obama
Order Sped Up Wave of Cyberattacks Against Iran, N.Y. TIMES, June 1, 2012, at A1; Secret ‘Kill List’ Proves a Test of
Obama’s Principles and Will, N.Y. TIMES, May 29, 2012, at A1; Stuxnet Was the Work of U.S. and Israeli Experts,
Officials Say, WASH. POST, June 2, 2012).
147 William S. Moorhead, Operation and Reform of the Classification System in the United States 90, in SECRECY AND
FOREIGN POLICY (Thomas M. Franck and Edward Weisband, eds. 1974).
148 Id. For an account of notable government leaks in the 1970s, see id. at 89; Information Security: Classification of
Government Documents, 85 HARV. L. REV. 1189, 1206-07 (1972). For a more recent chronology of government leaks,
see Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83
IND. L.J. 233, 251-53 (2008) (quoting various high-level officials who admitted to leaking information in order to
generate public support for a program or to promote some other political or bureaucratic agenda); David E. Pozen, The
Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 HARV. L.
REV. 512, 559 (2013) (discussing “planting,” or authorized leaking, as a critical policymaking and communications
tool”).
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reasonably be expected to cause a certain level of damage to national security.149 This definition
may be read to suggest that disclosures may be authorized under such circumstances when no
damage to national security is reasonably expected. Nothing in the order provides explicit
authority to release classified information that exists apart from the authority to declassify, but it
is possible that such discretionary authority is recognized to release information outside the
community of authorized holders without formally declassifying it.
Part 4 of the E.O. 13526 describes safeguarding of classified information from unauthorized
disclosure150 and preventing access to such information by “unauthorized persons.” Most of the
provisions appear to envision classified documents or communications and storage devices used
for classified information rather than the spoken word. Section 4.1(g) requires agency heads and
the Director of National Intelligence to “establish controls to ensure that classified information is
used, processed, stored, reproduced, transmitted, and destroyed under conditions that provide
adequate protection and prevent access by unauthorized persons.” If “transmitted” is interpreted
to include oral dissemination and “unauthorized persons” is interpreted to mean persons who do
not meet the criteria set forth in Section 4.1(a),151 then it would seem that agency heads who
approve leaks could be in breach of their responsibilities under the Order.
Moreover, there is a provision for “emergency disclosure” of classified information “when
necessary to respond to an imminent threat to life or in defense of the homeland” to “an
individual or individuals who are otherwise not eligible for access.”152 Section 4.2(b) provides
that such disclosures must be in accordance with implementing regulations or procedures the
classifying agency implements; must be undertaken in such a way as to minimize the information
disclosed and the number of individuals who receive it; and must be reported promptly to the
originator. Information disclosed under this provision is not deemed to be declassified. The
existence of this provision could be read to cut against an interpretation that permits selected
release of classified information to reporters for broader dissemination. However, it could also be
read to allow a different procedure by which an agency head, who is the original classifying
authority for the information at issue, might simply authorize remarks to the press that reference
classified information in such a way as to minimize harm to national security.
As a practical matter, however, there is seemingly little to stop agency heads and other high-
ranking officials from releasing classified information to persons without a security clearance
when it is seen as suiting government needs. The Attorney General has prosecutorial discretion to
choose which leaks to prosecute. If, in fact, a case could be brought that a senior official has
disclosed or authorized the disclosure of classified information, successful prosecution under
current laws may be difficult because the scienter requirement is not likely to be met. The
Espionage Act of 1917, for example, requires proof that the discloser has the intent or reason to
believe the information will be used against the United States or to the benefit of a foreign
nation.153 Although the nature and sensitivity of the information that was released are elements for

149 Exec. Order No. 13526 § 1.2.
150 “Unauthorized disclosure” means “a communication or physical transfer of classified information to an
unauthorized recipient.” Id. § 6.1(rr). “Unauthorized” recipient is not defined.
151 Id. § 4,1(a). The criteria are (1) a favorable determination of eligibility for access has been made by an agency head
or the agency head’s designee; (2) the person has signed an approved nondisclosure agreement; and (3) the person has a
need-to-know the information. A person who meets these criteria is defined as an “authorized holder” under the
definitions section of the Order, Section 6.1(c).
152 Id. § 4.2(b).
153 18 U.S.C. § 793. For more information about criminal laws proscribing leaks, see CRS Report R41404, Criminal
Prohibitions on Leaks and Other Disclosures of Classified Defense Information, by Stephen P. Mulligan and Jennifer
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the jury to decide,154 knowledge that the information is classified may be enough to persuade a
court that damage to national security can be expected.155 However, in the event the disclosure
was made or authorized by a person who has the authority to make such determinations—as to
whether the information will be used against the United States or to the benefit of a foreign
nation—it would seem likely that such deference would potentially result in not meeting the
scienter requirement absent some proof of ill intent. For example, a belief on the part of a lower
level official that a particular disclosure was authorized could serve as an effective defense to any
prosecution, and could entitle the defendant to depose high level government officials in
preparation for his or her defense.
Executive branch policy appears to treat an official disclosure as a declassifying event, while non-
attributed disclosures have no effect on the classification status of the information.156 For
example, the Department of Defense instructs agency officials, in the event that classified
information appears in the media, to neither confirm nor deny the accuracy of the information.157
The Under Secretary of Defense for Intelligence is then advised to “consult with the Assistant
Secretary of Defense for Public Affairs and other officials having a primary interest in the
information to determine if the information was officially released under proper authority.”158 The
regulation does not clarify what happens in the event the disclosure turns out to have been
properly authorized. It appears no further action need be taken, whether to inform employees that
the information no longer needs to be protected or to make annotations in classified records to
reflect the newly declassified status of the information. In any event, any documents that contain
that information potentially contain other classified information as well, in which case each such
document would retain the highest level of classification applicable to information in the
document. Thus, it seems unlikely that the authorized disclosure of classified information to the
media would often result in the public release of any records.
The Intelligence Authorization Act for FY2013, P.L. 112-277 (2013) Section 504 requires a
government official who approves a disclosure of classified information to the media, or to
another person for publication, to first report the decision and other matters related to the
disclosure to the congressional intelligence committees.159 The provision applies to “national
intelligence or intelligence related to national security” that is classified or has been declassified
for the purpose of making the disclosure, where the disclosure is made by a government officer,
employee, or contractor. According to the original committee report, the reporting is intended to
keep the intelligence committees apprised of expected media disclosures of relevant classified
information and to assist in distinguishing between “authorized disclosures” and “unauthorized
leaks.”160 Originally scheduled to sunset after a year, the provision was made permanent in the

K. Elsea. The level of knowledge required to prove an offense depends on the type of information alleged to have been
disclosed, and it is not necessarily a crime to disclose information merely because it is classified. See id.
154 See United States v. Morison, 844 F.2d 1057, 1073 (4th Cir.), cert. denied, 488 U.S. (1988) (upholding conviction
under 18 U.S.C. § 793 for delivery of classified photographs to publisher). Whether the information is “related to the
national defense” under this meaning is a question of fact for the jury to decide. Id. at 1073.
155 See United States v. Kiriakou, 898 F. Supp. 2d 921, 925 (E.D. Va. 2012) (noting that defendant was a “government
employee trained in the classification system who could appreciate the significance of the information he allegedly
disclosed”). The court noted that the potentially damaging nature of intangible information due to its disclosure can
largely be inferred from the fact that information is classified. Id. at 921.
156 Exec. Order No. 13526 § 1.1(c).
157 Department of Defense, Department of Defense Manual, 5200.01-V3, February 24, 2012 encl. 6 at 93.
158 Id. at 94.
159 Pub. L. No. 112-277 § 504, 126 Stat. 2468, 2477 (2013).
160 S. REP. NO. 112-192 (2012).
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Intelligence Authorization Act for 2014.161 Any reports to Congress of authorized disclosures
submitted pursuant to this provision apparently are classified.162
Insider Threat Risk Management
In October 2011 President Obama issued Executive Order 13587, “Structural Reforms to Improve
the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified
Information.”163 Among other measures, it established an interagency Insider Threat Task Force
with a mandate to:
develop a Government-wide program (insider threat program) for deterring, detecting, and
mitigating insider threats, including the safeguarding of classified information from
exploitation, compromise, or other unauthorized disclosure, taking into account risk levels,
as well as the distinct needs, missions, and systems of individual agencies. This program
shall include development of policies, objectives, and priorities for establishing and
integrating security, counterintelligence, user audits and monitoring, and other
safeguarding capabilities and practices within agencies.164
President Obama issued the resulting policy and minimum standards for agencies in
implementing their own insider threat programs in November 2012.165
Concerned about WikiLeaks and other disclosures of classified information by those with access,
the 112th Congress held at least two hearings on the topic of unauthorized disclosures of classified
information.166 Congress also passed a measure as part of the National Defense Authorization Act
for FY2012 to require the Defense Department to establish a “program for information sharing
protection and insider threat mitigation for the information systems of the Department of Defense
to detect unauthorized access to, use of, or transmission of classified or controlled unclassified
information.”167 The program is required to make use of both technology based solutions as well
as a “governance structure and process” to integrate these technologies into existing security
measures.168
As initially reported by the Senate Intelligence Committee, S. 3454 (112th Cong.) contained a
number of measures to address the disclosure of classified information by federal employees,

161 Pub. L. No. 113-126, § 328, 128 Stat. 1390, 1405 (2014) (codified at 50 U.S.C. § 3349).
162 See Steven Aftergood, Report on Disclosures to the Media is Classified, FED’N AM. SCIENTISTS: SECRECY NEWS,
Oct. 9, 2014, https://fas.org/blogs/secrecy/2014/10/authorized-disclosures/ (describing rejection of FOIA request for
reports of authorized disclosures).
163 Exec. Order No. 13587, 3 C.F.R. § 276 (2011), available at https://obamawhitehouse.archives.gov/the-press-office/
2011/10/07/executive-order-13587-structural-reforms-improve-security-classified-net.
164 Id. § 6.
165 Press Release, White House Office of the Press Secretary, Presidential Memorandum—National Insider Threat
Policy and Minimum Standards for Executive Branch Insider Threat Programs (Nov. 21, 2012), available at
https://obamawhitehouse.archives.gov/the-press-office/2012/11/21/presidential-memorandum-national-insider-threat-
policy-and-minimum-stand. The resulting standards are published at https://www.dni.gov/files/NCSC/documents/nittf/
National_Insider_Threat_Policy__Minimum_Standards.pdf.
166 National Security Leaks and the Law, Hearing before the Subcomm. on Crime, Terrorism and Homeland Security of
the H. Comm. on the Judiciary, 112th Cong. (2012); Disclosures of National Security Information and Impact on
Military Operations, Hearing before the H. Comm. on Armed Services, 112th Cong. (2012).
167 Pub. L. No. 112-81, § 922, 125 Stat. 1298, 1537 (2011) (codified at 10 U.S.C. § 2224 note).
168 The Government Accountability Office (GAO) issued an assessment of DOD’s implementation of its Insider Threat
Program in 2015. U.S. GOV’T ACCOUNTABILITY OFF., GAO 15-544, INSIDER THREATS: DOD SHOULD STRENGTHEN
MANAGEMENT AND GUIDANCE TO PROTECT CLASSIFIED INFORMATION AND SYSTEMS (2015).
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whether authorized or not, especially if the disclosure were to the media. Opposition to these
measures resulted in a manager’s amendment to the bill with all but the reporting provision
regarding authorized disclosures removed.169 Some of the measures that were eliminated from the
bill involved restrictions on media access to government officials. One was a prohibition on
federal officers, employees, and contractors who have security clearances, including some who
have left government service within the prior year, from entering into agreements with the media
to provide analysis or commentary on matters related to classified intelligence activities or
intelligence related to national security.170 Another would have limited the individuals authorized
to provide background or off-the-record information to the media regarding intelligence activities
to the Director and Deputy Directors or their equivalents of each agency and designated public
affairs officers.171 Another would have required the Director of National Intelligence to prescribe
regulations regarding the interaction of cleared personnel with the media.172 Such persons would
have been required to report all contacts with the media to the appropriate security office.173 Also
eliminated was a prohibition on federal officers, employees, and contractors from possessing a
security clearance after having made any unauthorized disclosure regarding the existence of, or
classified details relating to, a covert action as defined in 50 U.S.C. § 413(b) (now classified at 50
U.S.C. § 3091).174
The insider threat issue was revisited in the Intelligence Authorization Act for FY2016, passed as
Division M of the Consolidated Appropriations Act of 2016, P.L. 114-113 (2015).175 Section 306
added a requirement to Title 5, U.S. Code, for the DNI to direct agencies to each establish an
“enhanced personnel security program” to integrate a broader data set into reassessments of the
continuing eligibility of personnel to hold security clearances or sensitive positions. Specifically,
The enhanced personnel security program of an agency shall integrate relevant and
appropriate information from various sources, including government, publicly available
and commercial data sources, consumer reporting agencies, social media and such other
sources as determined by the Director of National Intelligence.176
The provision requires the agency programs to conduct random automated record checks of the
selected sources of data at least twice within a five-year period for each covered person, unless
that individual is subject to more frequent reviews.177 The deadline to implement the programs is
five years after enactment (December 15, 2020) or the date on which the backlog of overdue
periodic reinvestigations is eliminated, as determined by DNI.178 In 2019, Congress directed the
DNI and IC agency heads to develop policies to comply with the National Insider Threat Policy
and Minimum Standards for Executive Branch Insider Threat Programs.179

169 The bill was enacted as Pub. L. No. 112-277 in January 2013. See supra “Declassification vs. Leaks and
“Instant Declassification”” for an explanation of the reporting provision, § 504.
170 S. 3454 (as reported, 112th Cong.) § 505.
171 Id. § 506.
172 Id. § 507.
173 Id.
174 Id. § 512.
175 Pub. L. No. 114-113, 129 Stat. 2242, 2244 (2015).
176 5 U.S.C. § 11001(b)(1).
177 5 U.S.C. § 11001(c).
178 5 U.S.C. § 11001(a).
179 National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, div. E, title LXIII, § 6314, 133 Stat.
1138, 2194 (2019) (codified at 50 U.S.C. § 3024 note).
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Author Information

Jennifer K. Elsea

Legislative Attorney

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