But for the most part, Mr. Gerstell said, “You can’t go to a government computer and push a button and say, ‘Print out a list of all classified documents.’ There is no system that does that.”
Is the classification system enforced by criminal law?
Not directly — for the most part.
The legal basis for the classification system comes from the president’s constitutional authority as the commander in chief and head of the executive branch, not from criminal law.
The classification system is largely about bureaucratic rules. The main punishment for disobedience is administrative: Officials can be admonished, lose their security clearances and be fired. Congress has imposed separate criminal penalties to protect national security secrets.
For example, the main law used in leaking and spying cases, the Espionage Act of 1917, forbids the unauthorized retention of national security secrets, defined as defense-related information that could harm the United States or aid a foreign adversary. It was enacted before the classification system existed and makes no reference to it.
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Thus, while prosecutors need to prove as an element of the offense that the government had been closely holding the information, they do not need to prove that the information was marked as classified. Not surprisingly, such cases in the modern era have usually involved national-security secrets that were also classified — but not always.
A rare exception, where Congress has tied a law to the classification system, is Section 1924 of Title 18 of the U.S. Code. It makes the unauthorized retention or removal of classified material a crime, so prosecutors would have to show that the information remained technically classified as an element of proving that offense to a jury.
What are the standards for deeming information classified?
The executive order lists different levels. “Top secret” status, for example, applies to information whose unauthorized disclosure could cause “exceptionally grave damage to the national security that an original classification authority is able to identify or describe.” “Secret” is for “serious” damage, and “confidential” is for mere damage.
