Today's Article
Some U.S. legal
experts believe 'that
the President has
virtually plenary [i.e.,
absolute] authority to
control classified
information,' stated a
federal report.
The American Spark
President May Have Absolute Power To Keep Gov’t Activities
Secret, Say Experts

By Cliff Montgomery - Jan. 28th, 2018

It’s essential for a democracy to have a well-informed public. Thus it’s essential for journalists and other
professional watchdogs to reveal what government officials are doing in the name of the people. And for
dedicated journalists and other professionals to do this, we need access to information.

But in this country, government information is not as easy to access as many might think.

The First Amendment of the U.S. Bill of Rights does, technically, ensure a free press. But that does not
ensure a free access to information on the activities of government officials.

In fact, “the Supreme Court has never directly addressed the extent to which Congress may constrain the
executive branch’s power” regarding the classification of national security information,
declared a little-known
Congressional Research Service (CRS) study released in May 2017.

“This language has been interpreted by some to indicate that the President has virtually plenary [i.e.,
absolute] authority to control classified information,” the CRS report chillingly adds. This apparently is
because the President may deem
any government activity to be a matter of ‘national security’.

Below, The
American Spark has quoted the first part of the CRS study’s “Background” section. On Monday, it
will publish part two.

Prior to the New Deal, decisions regarding classification of national security information were left to military
regulation. In 1940, President Franklin Roosevelt issued an executive order authorizing government officials
to protect information pertaining to military and naval installations.

“Presidents since that time have continued to set the federal government’s classification standards by
executive order, but with one critical difference: while President Roosevelt cited specific statutory authority for
his action, later Presidents have cited general statutory and constitutional authority.

“The Supreme Court has never directly addressed the extent to which Congress may constrain the executive
branch’s power in this area. Citing the President’s constitutional role as Commander-in-Chief, the Supreme
Court has repeatedly stated
in dicta [i.e., in an opinion] that ‘[the President’s] 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.’

“This language has been interpreted by some to indicate that the President has virtually plenary [i.e.,
absolute] authority to control classified information.

“On the other hand, the Supreme Court has suggested that ‘Congress could certainly [provide] that the
Executive Branch adopt new [classification procedures] or [establish] its own procedures—subject only to
whatever limitations the Executive Privilege may be held to impose on such congressional ordering.’

“In fact, Congress established a separate regime in the Atomic Energy Act for the protection of nuclear-
related ‘Restricted Data.’

“Congress has directed the President to establish procedures governing the access to classified material so
that generally no person can gain such access without having undergone a background check.

“Congress also directed the President, in formulating the classification procedures, to adhere to certain
minimum standards of due process with regard to access to classified information. These standards include
the establishment of uniform procedures for,
inter alia [i.e., among other things], background checks, denial of
access to classified information, and notice of such denial.

“There is an exception to the due process requirements, however, where compliance could damage national
security, although the statute directs agency heads to submit a report to the congressional intelligence
committees in such a case.

“With the authority to determine classification standards vested in the President, these standards tend to
change when a new administration takes control of the White House. The differences between the standards
of one administration and the next have often been dramatic.

“As one congressionally authorized commission put it in 1997:

    The rules governing how best to protect the nation’s secrets, while still insuring that the American public
    has access to information on the operations of its government, past and present, have shifted along with
    the political changes in Washington. Over the last fifty years, with the exception of the Kennedy
    Administration, a new executive order on classification was issued each time one of the political parties
    regained control of the Executive Branch. These have often been at variance with one another ... at
    times even reversing outright the policies of the previous order.

“Various congressional committees have investigated ways to bring some continuity to the classification
system and to limit the President’s broad powers to shield information from public examination. In 1966,
Congress passed the Freedom of Information Act (FOIA), creating a presumption that government infor-
mation will be open to the public unless it falls into one of FOIA’s exceptions.

“One [such] exception covers information that, under executive order, must be kept secret for national security
or foreign policy reasons.

“In 2000, Congress enacted the Public Interest Declassification Act of 2000, which established the Public
Interest Declassification Board to advise the President on matters regarding the declassification of certain
information. However, the act expressly disclaims any intent to restrict agency heads from classifying or
continuing the classification of information under their purview, nor does it create any rights or remedies that
may be enforced in court.”

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