The Protection of Classified Information: The Legal Framework Page: 3 of 6
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clearance where doing so could damage national security, although the statute directs
agency heads to submit a report to the congressional intelligence committees in such a
With the authority to determine classification standards vested in the President, these
standards tend to change whenever a new administration takes control of the White
House.12 The differences between the standards of one administration and the next have
often 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 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.13
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.14 In 1966, Congress passed the Freedom of Information Act
(FOIA), 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.5
In 2000, Congress enacted the Public Interest Declassification Act of 2000,16 which
established the Public Interest Declassification Board to advise the President on matters
regarding the declassification of certain information, but 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."1
" Id. at 435(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. 103-753, at 54.
12 See Report of the Commission on Protecting and Reducing Government Secrecy, S. Doc. No.
105-2, at 11 (1997).
14 See, e.g., Availability of Information from Federal Departments and Agencies: Hearings
Before the House Committee on Government Operations, 85h Cong. (1955).
15 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).
16 P.L. 106 - 567, title VII, Dec. 27, 2000, 114 Stat. 2856, 50 U.S.C. 435 note.
1 Id. 705 and 707.
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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/m1/3/: accessed January 22, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.