The Protection of Classified Information: The Legal Framework Page: 1 of 6
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Order Code RS21900
Updated December 21, 2006
~. CRS Report for Congress
The Protection of Classified Information:
The Legal Framework
Jennifer K. Elsea
American Law Division
Recent incidents involving "leaks" of classified information have heightened
interest in the legal framework that governs security classification, access to classified
information, and penalties for improper disclosure. Classification authority has
generally rested with the executive branch, although Congress has enacted legislation
regarding the protection of certain sensitive information. While the Supreme Court has
stated that the President has inherent constitutional authority to control access to
sensitive information relating to the national defense or to foreign affairs, no court has
found that Congress is without authority to legislate in this area. This report provides
an overview of the relationship between executive and legislative authority over national
security information, and summarizes the current laws and regulations that form the
legal framework protecting classified information.
Background. Prior to the New Deal, classification decisions were left to military
regulation.' 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, later presidents have cited general statutory
and constitutional authority.3
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
'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. 8,381 (1940).
3 Compare Exec. Order No. 10,501 (1953) with, e.g. Exec. Order 13,292 (2003).
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The Protection of Classified Information: The Legal Framework, report, December 21, 2006; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc805106/m1/1/: accessed November 13, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.