The Personal Website of Mark W. Dawson

Classified Information

Whenever you hear someone speaking about classified information or the handling of classified information, you should always keep in mind that those who know what they are talking about rarely talk, and those who talk rarely know what they are talking about. This is because until you have worked in a classified environment, it is impossible to understand the intricacies of the handling of classified information. I know this for a fact, as I am one of those people who rarely talk, as I spent about ten years in a classified job and handled thousands of pieces of classified information. However, given the events of the last dozen or so years involving the mishandling of classified information by high-profile persons and the deliberate distortion of media and others to justify or condemn this mishandling of classified information, I feel compelled to speak up and set the record straight. Of necessity, I will be circumspect and not reveal too much, as this could be a violation of my legal responsibility to remain silent about such matters. However, I do not believe that I am in violation of my legal responsibilities, as I have not revealed any classified information and I have utilized unclassified sources (including government web sites) in writing this article.

The Technology Transformation Services (TTS) Handbook is an open, crowd-sourced, accessible, and living resource that aims to provide the information our team needs to do their work. Read more about the Handbook. This government handbook describes the different Clearance Levels as follows:

1. Special Access Programs (SAP)
2. Top Secret / Special Compartmented Information (TS/SCI)
3. Top Secret (TS)
4. Secret (S)
5. Confidential (C)

There is also an additional level of security—Special Access Programs (SAP), established for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.

The law on the handling of classified information is under the statutes of 18 U.S. Code Chapter 37 - Espionage and Censorship and the Espionage Act of 1917, which makes it illegal for anyone who has information related to national defense to use it “to the injury of the United States” or “to the advantage of any foreign nation.” More specifically, “18 U.S. Code § 793 - Gathering, transmitting or losing defense information” is very clear and understandable in its definition of the illegal handling of classified information.

The rules, regulations, and procedures for the handling of classified information are somewhat different for each clearance level, with the most restrictive being TS/SCI and the least restrictive being C. The legal penalties for violating the law, rules, regulations, and procedures are harsher for TS/SCI than they are for C. When found guilty of violating TS/SCI laws, a person often is sentenced to many years of imprisonment, and the death penalty is warranted in the most severe cases. Violating TS laws often results in several years of imprisonment, while violating S laws often results in a few months to a few years of imprisonment, while C violations most times are punished by fines and occasionally very short jail sentences.

Under the Espionage Act of 1917, all persons granted security clearances have a proactive duty to protect classified information by following the law, rules, regulations, and procedures for handling classified information. As such, the legal defense of “intent” for violating these laws is not available to a defendant being prosecuted for violating classified information laws. Your intent is rarely utilized in the sentencing for violations of these laws, as most often, the sentencing is based on the harm inflicted by the violations of the law. However, most judges do not know the full extent of the harm, as revealing the full extent of the harm in an open court would necessitate disclosing additional classified information and/or the sources, methods, and capabilities of the gathering of classified information. Therefore, judges often rely on statements by knowledgeable government officials on the severity of the impacts of the disclosed classified information, and these statements are often muted to the full extent of the harm to protect other classified information.

Before being granted security clearances, a person must have a background investigation to determine their suitability for granting their clearance level. An individual's investigative requirement is determined by the duties and responsibilities of their position and the associated degree of potential damage to the efficiency or integrity of the service or adverse effect on national security from the misconduct of an incumbent of a position. This establishes the risk and sensitivity level of the position. A TS/SCI clearance requires an Extensive Background Investigation (EBI), while the other clearance levels often only require a Background Investigation or Evaluation. EBI investigations often take several weeks to research a person’s background but often take several months to begin the process due to the backlog of EBI clearance requests. A TS, S, and C investigation may only take a few hours or days to complete, and the wait time is usually a few weeks to a month or two. While Awaiting Clearance (AWC) for a classified position, the applicant is often assigned non-classified tasks in a non-classified environment.

Upon obtaining a security clearance, a person is first briefed about their duties and responsibilities under the law, and then they must sign a statement that they have been briefed on the law and will abide by the law before classified information is revealed to them. If they do not sign this statement, then their security clearance is immediately revoked, and they will not be permitted to access classified information. When a person no longer needs a security clearance or leaves the employment of a classified agency, their security clearance is revoked, and they must be debriefed. This debriefing informs them of their duties and responsibilities to protect classified information after revocation, and they must sign a statement that they understand their duties and responsibilities to protect classified information. In both cases of the briefing and debriefing of security clearances, the failure to protect classified information subjects them to criminal prosecution, as mentioned above. Some high-level government officials retain their security clearance after they leave their positions so that they may be consulted, as needed, about classified matters. Such officials must always obey the laws, rules, regulations, and procedures for the handling of classified information while they retain their security clearances.

Whenever a person who has or had security clearances or knowledge of classified information is publicly or privately questioned about classified information, they will often respond, “I can neither confirm nor deny anything you may have to say”. Whenever you hear this response, you can be assured that the conversation about classified information is at an end, as they are forbidden to make any statements thereafter.

The one exception to this is for the sitting President of the United States. The 18 U.S. Code Chapter 37 - Espionage and Censorship and the Espionage Act of 1917, applies to all except the sitting President, and as a matter of law, no President can be charged under these acts for “mishandling” classified information or records. A Supreme Court decision, Department of the Navy v. Egan, 484 U.S. 518 (1988)^[i], made it clear that the President has an inherent Constitutional power, as Commander-In-Chief, to classify and declassify anything they want at will, and no law, statute, or regulation may usurp this Constitutional power. A sitting President can declassify anything through their words and deeds — and they don’t need to label it, they don’t need to document or report it, and they don’t even have to inform anyone. The Vice President and former Presidents and Vice Presidents do not have this power, but if a sitting President declassifies anything by their words and deeds, they have every authority to do so. Consequently, a sitting President’s power to classify or declassify anything is absolute and cannot be challenged nor regulated except through a Constitutional Amendment or the Supreme Court overturning its previous ruling.

It is the responsibility of the agency that classified the information to secure the classified information. Only with the approval of the head of the originating agency can the classification of information be added, changed, or removed. No other agency can change the classification levels or declassify the information without the approval of the originating agency. Thus, if one agency wishes to change the classification of another agency's classified information, they cannot do so by themselves, but they must request that the originating agency change the classification. To assist in the handling of classified information, each agency has its own security department that operates under the common Federal government standards and procedures for the handling of classified information. Therefore, the processing and handling of classified information are always done under the auspices of the security departments of the agencies that classify the information. Even when the head of an agency wants to change or remove the classification of the agency's classified information, they will have the security department review the request to determine the advisability of doing so. In some cases, the security department may request a review by another agency's security department to determine the impacts of the change or removal. The security department will then make a recommendation as to the advisability of the change or removal, which the head of the agency may accept or reject.

The main purpose of classifying information is to protect America and Americans from harm by foreign nations or actions by others intent on injuring America and Americans. Such classified information is about our military and intelligence capabilities and information about foreign nations and other actors. As such, the sources, methods, and capabilities of the collection of intelligence and the dissemination of classified information are tightly controlled and restricted. A general rule of thumb is that classified information is not to be shared with anyone not permitted to see it and then only be shared on a need-to-know basis. All classified information must be stored in a container approved for the storage of the classified information at a location approved for the storage of classified information. For TS/SCI classified information, this storage of classified information is in a Sensitive Compartmented Information Facility (SCIF), while TS, S, and C classified information are stored in a building that has special security precautions to protect the classified information (i.e., security guards, special locks, access restrictions, etc.). In addition, all classified information may only be transferred from one classified location to another classified location through secured channels approved for the transfer of the level of the classified information. This is especially true for computerized classified information, as all computers or electronic devices that store classified information must be approved beforehand, and they must not electronically transmit classified information except through preapproved electronic communications capabilities.

In the case of a business contracted to work on or with classified information, the business is responsible for providing security of the classified information under the direction of the security department of the classified agency that contracted the business. The same Federal government standards and procedures for the handling of classified information apply to the business, and all personnel working on or with classified information must be granted security clearances and obey the same laws, rules, regulations, and procedures as government personnel.

The purpose of this article is to provide a foundation for understanding the handling of classified information to those not initiated into the world of classified information. This should provide you with sufficient knowledge to ascertain the veracity of what others are saying when discussing possible breaches of the handling of classified information. If another is saying something that contradicts or contravenes what I have written, then you can be fairly certain that the person does not know what they are talking about regarding the handling of classified information, or they are being disingenuous. Either way, you should not pay credence to what they are saying.

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[i] The majority ruling in the 1988 Supreme Court case Department of Navy vs. Egan -- which addressed the legal recourse of a Navy employee who had been denied a security clearance -- addresses this line of authority.

"The President, after all, is the 'Commander in Chief of the Army and Navy of the United States'" according to Article II of the Constitution, the court's majority wrote. "His authority to classify and control access to information bearing on national security ... flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant."

Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, said that such authority gives the president the authority to "classify and declassify at will."

In fact, Robert F. Turner, associate director of the University of Virginia's Center for National Security Law, said that "if Congress were to enact a statute seeking to limit the president's authority to classify or declassify national security information, or to prohibit him from sharing certain kinds of information with Russia, it would raise serious separation of powers constitutional issues."

The official documents governing classification and declassification stem from executive orders. But even these executive orders aren't necessarily binding on the president. The president is not "obliged to follow any procedures other than those that he himself has prescribed," Aftergood said. "And he can change those."

Indeed, the controlling executive order has been rewritten by multiple presidents. The current version of the order was issued by President Barack Obama in 2009.