CRS Reports & Analysis
Legal Sidebar
Presidential Authority to Permit Access to National
Security Information
05/17/2017
It appears more likely than not that the President is presumed to have the authority to disclose classified information to
foreign agents in keeping with his power and responsibility to advance U.S. national security interests.
As President Trump recently asserted, his “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.” As one
observer noted, the language appears to be drawn from a 1988 Supreme Court case, Department of the Navy v. Egan, in
which the Court held the Merit Systems Protection Board could not review an agency decision denying an employee a
security clearance. While some interpret
Egan as recognizing that the President has virtually plenary authority to control
classified information, the Court has
suggested elsewhere 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.” Congress has legislated with respect to
classified information on numerous occasions, some of which are outlined in this CRS report, while also generally
deferring to the executive branch regarding the classification – and declassification – of national security information.
The
Egan Court viewed the authority to control access to national security information as falling on the President as
head of the Executive Branch and as Commander in Chief. Yet Congress also has authority and responsibility with
respect to national security. In enacting the National Security Act of 1947, Congress described its intent to “to provide a
comprehensive program for the future security of the United States [and] to provide for the establishment of integrated
policies and procedures for the departments, agencies, and functions of the Government relating to the national
security.” Congress assigned the responsibility to the Director of National Intelligence, at the direction of the President,
to protect intelligence sources and methods, to
establish uniform procedures for the protection of sensitive
compartmented information, and to
coordinate intelligence-sharing with foreign governments.
The current standards for classifying and declassifying information are found in
Executive Order 13526, issued by
President Obama in 2009. 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. In addition,
Executive Order 12333 spells out the
responsibilities of members of the Intelligence Community for the protection of intelligence information, including
intelligence sources and methods. For an overview of regulations regarding actions to be taken in the event of a possible
unauthorized disclosure of classified information, see
The Protection of Classified Information: The Legal Framework.
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. Yet it has long been noted that there seems to be an informal process for
“instant declassification” of
information whose release to the public serves an immediate need.
E.O. 13526 does not address an informal procedure for releasing classified information. Section 1.1. 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
authorized. By definition,
classified information is designated as classified based on whether its
unauthorized disclosure can reasonably be
expected to cause a certain level of damage to national security. This definition may be interpreted to suggest that
disclosures may be authorized under such circumstances when no damage to national security is reasonably expected. It
seems likely that those with the authority to disclose classified information would include the President, Vice President,
and agency heads with original classification authority and control over the information in question.
With respect to classified communications intelligence information, Congress defined punishable disclosures of certain
classified information in relation to the authority of the recipients rather than the disclosers:
Whoever knowingly and willfully communicates … to an unauthorized person … any classified information
[concerning cryptography or communications intelligence, including that obtained from a foreign government]-
Shall be fined under this title or imprisoned not more than ten years, or both.
The term “unauthorized person” is
defined to mean:
any person who … is not authorized to receive information of the categories set forth [above], by the President, or
by the head of a [U.S.] department or agency … which is expressly designated by the President to engage in
communication intelligence activities for the United States.
The Espionage Act similarly punishes the transmittal of defense information to a person “not entitled to receive it.”
However,
another provision that forbids government employees from divulging classified information to
representatives of foreign governments does not apply if such disclosure was authorized by the President or agency or
department head. Taken together (and as noted above), it appears more likely than not that the President is presumed to
have the authority to disclose classified information to foreign agents in keeping with his power and responsibility to
advance U.S. national security interests.
Concern that the Obama Administration may have permitted the selective authorized disclosure of classified
information using an informal process led Congress to enact section 504 of the Intelligence Authorization Act for
FY2013, P.L. 112-277. The provision 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 related matters to the
congressional intelligence committees. 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. 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.” It does not address the disclosure of classified information in situations where there is no intent to make the
information public.
Posted at 05/17/2017 11:17 AM