Can Disclosures of Classified Information Be Authorized?

12.19.12 | 4 min read | Text by Steven Aftergood

It is plainly true that executive branch officials will sometimes disclose classified information to reporters and other uncleared individuals.  But this practice is not explicitly authorized in any official statement of classification policy.  In fact, with an exception for life-threatening emergencies, it is usually understood to be prohibited.

How can the obviously flexible practice and the seemingly prohibitive policy be reconciled? A newly updated report from the Congressional Research Service presents a close reading of the relevant rules and regulations in search of some wiggle room for authorized disclosures of classified information.

“Nothing in the Executive Order addresses an informal procedure for releasing classified information [to reporters].  E.O. 13526 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 in fact authorized,” the CRS report observes.

“By definition, classified information is designated as such based on whether its unauthorized disclosure can reasonably be expected to cause a certain level of damage to the national security. This may be read to suggest that disclosures may be authorized under such circumstances when no damage to national security is reasonably expected.”  (But under those circumstances, it might be noted, the information should be promptly declassified.)

The CRS report, written by legislative attorney Jennifer K. Elsea, continues:  “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.”  Indeed, this appears to be an accurate characterization of actual practice.

In any case, “there is 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.”  Again, an accurate description– particularly since “the Attorney General has prosecutorial discretion to choose which leaks to prosecute.”

See The Protection of Classified Information: The Legal Framework, updated December 17, 2012.

Overall, “Executive Branch policy appears to treat an official disclosure as a declassifying event, while non-attributed disclosures [to reporters or others] have no effect on the classification status of the information,” the author writes.

“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.  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.'”

But, the CRS report astutely notes, the relevant DoD regulation “does not clarify what happens in the event the disclosure turns out to have been properly authorized.”

And so it seems that the DoD regulation offers the conceptual space for an authorized disclosure of classified information.

(As if to provide an ironic illustration of the point, the Under Secretary of Defense for Intelligence himself — Michael Vickers — was reportedly cited in a referral to the Department of Justice for disclosing potentially restricted information concerning the pursuit of Osama bin Laden to filmmakers.  See “Bin Laden film leak was referred to Justice; leaker top Obama official” by Marisa Taylor and Jonathan S. Landay, McClatchy Newspapers, December 17, 2012.  In a statement last night, the Department of Defense confirmed that Mr. Vickers is a subject of a pending Inspector General investigation.  But it said the information in question was unclassified in its entirety.)

The CRS report naturally does not constitute an authoritative interpretation of the executive order, and in some respects it may be in error.  The report mistakenly states (at footnote 51) that the DOJ Media Leak Questionnaire that agencies must complete when a referring a leak for investigation is “apparently… part of a Memorandum of Understanding concluded between the Department of Justice and elements of the Intelligence Community.”  But a review of the Memorandum, described in Secrecy News earlier this week, shows that that supposition is incorrect.  The two are separate documents.  See “Crimes Reports and the Leak Referral Process,” Secrecy News, December 17, 2012.

Anti-leak legislation that is pending in the Senate would require executive branch officials to record all authorized disclosures of classified intelligence to the press, and to notify Congress when they occur (cf. sections 501 and 502 of Title V of the FY 2013 intelligence authorization bill).

These provisions, which may prove unworkable in practice, are presumably intended to enable Congress to publicly comment on classified intelligence matters with the same freedom that agency officials already do.  But the public interest concern raised by the notification provisions is that if they are strictly imposed, they may discourage all authorized disclosures of classified intelligence, yielding a net reduction in public access to government information.