Post by mhbruin on Aug 13, 2022 12:06:44 GMT -8
The president’s classification and declassification powers are broad
Experts agreed that the president, as commander-in-chief, is ultimately responsible for classification and declassification. When someone lower in the chain of command handles classification and declassification duties -- which is usually how it’s done -- it’s because they have been delegated to do so by the president directly, or by an appointee chosen by the president.
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."
Does the president have 'the ability to declassify anything at any time'?
The Nuclear Option
The authority to classify and declassify flows from one person with near-absolute power, and for four years that papal figure was Donald J. Trump. This awesome former power will protect him from prosecution, but only so much.
...
Another exception is nuclear secrets. The Atomic Energy Acts of 1946 and 1954 produced an even stranger category of classified knowledge. Anything related to the production or use of nuclear weapons and nuclear power is inherently classified, and Trump could utter whatever words he pleased yet still be in possession of classified material. Where are our nuclear warheads? What tricks have we developed to make sure they work? This information is “born secret” no matter who produces it. The restrictions on documents of this type are incredibly tight. In the unlikely event that Trump came up with a new way to enrich uranium, and scribbled it on a cocktail napkin poolside at Mar-a-Lago early this year, that napkin would instantly have become a classified document subject to various controls and procedures, and possibly illegal for the former president to possess. Of course if he did so, no prosecutor would pursue him. A certain amount of leeway is crucial to the system.
If Trump was keeping nuclear secrets in the storeroom of his country club, without even the benefit of a padlock, and resisted attempts to secure those secrets against infiltrators and spies, a prosecutor might reasonably take more interest.
Not Even the President Can Declassify Nuclear Secrets
Experts agreed that the president, as commander-in-chief, is ultimately responsible for classification and declassification. When someone lower in the chain of command handles classification and declassification duties -- which is usually how it’s done -- it’s because they have been delegated to do so by the president directly, or by an appointee chosen by the president.
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."
Does the president have 'the ability to declassify anything at any time'?
The Nuclear Option
The authority to classify and declassify flows from one person with near-absolute power, and for four years that papal figure was Donald J. Trump. This awesome former power will protect him from prosecution, but only so much.
...
Another exception is nuclear secrets. The Atomic Energy Acts of 1946 and 1954 produced an even stranger category of classified knowledge. Anything related to the production or use of nuclear weapons and nuclear power is inherently classified, and Trump could utter whatever words he pleased yet still be in possession of classified material. Where are our nuclear warheads? What tricks have we developed to make sure they work? This information is “born secret” no matter who produces it. The restrictions on documents of this type are incredibly tight. In the unlikely event that Trump came up with a new way to enrich uranium, and scribbled it on a cocktail napkin poolside at Mar-a-Lago early this year, that napkin would instantly have become a classified document subject to various controls and procedures, and possibly illegal for the former president to possess. Of course if he did so, no prosecutor would pursue him. A certain amount of leeway is crucial to the system.
If Trump was keeping nuclear secrets in the storeroom of his country club, without even the benefit of a padlock, and resisted attempts to secure those secrets against infiltrators and spies, a prosecutor might reasonably take more interest.
Not Even the President Can Declassify Nuclear Secrets
