OLC Opinion Notes Role for Congress in Classification

08.04.11 | 2 min read | Text by Steven Aftergood

A newly disclosed opinion (pdf) of the Department of Justice Office of Legal Counsel (OLC) concludes that if information gathered in the course of surveillance under the Foreign Intelligence Surveillance Act (FISA) is used to revoke an individual’s security clearance, then that individual is generally entitled to receive notice of the information that was used against him — unless the information is subject to executive privilege.

The June 3, 2011 opinion also briefly addresses the subject of congressional involvement in classification policy and allows for a carefully hedged role for Congress.

“We agree with the FBI that the President’s constitutional authority to classify information concerning the national defense and foreign relations of the United States and to determine whether particular individuals should be given access to such information ‘exists quite apart from any explicit congressional grant’…,” wrote Caroline D. Krass, then the acting head of the Office of Legal Counsel.

“But that does not imply that Congress entirely lacks authority to legislate in a manner that touches upon disclosure of classified information,” she added.

“For example, we believe Congress’s authority to regulate foreign intelligence surveillance under FISA, and to regulate the terms of federal employment, does, as a general matter, permit  Congress to impose the notification requirement [when FISA-derived information is used in other legal proceedings], even when that requirement reaches proceedings concerning security clearance revocations,” she wrote.

This does not really break any new ground in classification policy or politics.  Nor does it exhaust the subject of congressional authority with respect to classified information.  But it is noteworthy to have it re-stated publicly and officially nevertheless.