CLASSIFIED Presidential Executive Orders – It’s Not Constitutional

Monday, March 4, 2013

 

 

This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism.  Our democratic principles require that the American people be informed of the activities of their Government.  Also, our Nation's progress depends on the free flow of information both within the Government and to the American people.  Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations.  Protecting information critical to our Nation's security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.

NOW, THEREFORE, I, BARACK OBAMA, by the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

PART 1 -- ORIGINAL CLASSIFICATION

Section 1.1.  Classification Standards.  (a)  Information may be originally classified under the terms of this order only if all of the following conditions are met:

(1)  an original classification authority is classifying the information;

(2)  the information is owned by, produced by or for, or is under the control of the United States Government;

(3)  the information falls within one or more of the categories of information listed in section 1.4 of this order; and

(4)  the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

(b)  If there is significant doubt about the need to classify information, it shall not be classified.  This provision does not:

(1)  amplify or modify the substantive criteria or procedures for classification; or

(2)  create any substantive or procedural rights subject to judicial review.

(c)  Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.

(d)  The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.

Sec. 1.2.  Classification Levels.  (a)  Information may be classified at one of the following three levels:

(1)  "Top Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.

(2)  "Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.

(3)  "Confidential" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.

(b)  Except as otherwise provided by statute, no other terms shall be used to identify United States classified information.

(c)  If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.

Sec. 1.3.  Classification Authority.   (a)  The authority to classify information originally may be exercised only by:

(1)  the President and the Vice President;

(2)  agency heads and officials designated by the President; and

(3)  United States Government officials delegated this authority pursuant to paragraph (c) of this section.

(b)  Officials authorized to classify information at a specified level are also authorized to classify information at a lower level.

(c)  Delegation of original classification authority.

(1)  Delegations of original classification authority shall be limited to the minimum required to administer this order.  Agency heads are responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority.

(2)  "Top Secret" original classification authority may be delegated only by the President, the Vice President, or an agency head or official designated pursuant to paragraph (a)(2) of this section.

(3)  "Secret" or "Confidential" original classification authority may be delegated only by the President, the Vice President, an agency head or official designated pursuant to paragraph (a)(2) of this section, or the senior agency official designated  under section 5.4(d) of this order, provided that official has been delegated "Top Secret" original classification authority by the agency head.

(4)  Each delegation of original classification authority shall be in writing and the authority shall not be redelegated except as provided in this order.  Each delegation shall identify the official by name or position.

(5)  Delegations of original classification authority shall be reported or made available by name or position to the Director of the Information Security Oversight Office.

(d)  All original classification authorities must receive training in proper classification (including the avoidance of over-classification) and declassification as provided in this order and its implementing directives at least once a calendar year.  Such training must include instruction on the proper safeguarding of classified information and on the sanctions in section 5.5 of this order that may be brought against an individual who fails to classify information properly or protect classified information from unauthorized disclosure.  Original classification authorities who do not receive such mandatory training at least once within a calendar year shall have their classification authority suspended by the agency head or the senior agency official designated under section 5.4(d) of this order until such training has taken place.  A waiver may be granted by the agency head, the deputy agency head, or the senior agency official if an individual is unable to receive such training due to unavoidable circumstances.  Whenever a waiver is granted, the individual shall receive such training as soon as practicable.

(e)  Exceptional cases.  When an employee, government contractor, licensee, certificate holder, or grantee of an agency who does not have original classification authority originates information believed by that person to require classification, the information shall be protected in a manner consistent with this order and its implementing directives.  The information shall be transmitted promptly as provided under this order or its implementing directives to the agency that has appropriate subject matter interest and classification authority with respect to this information.  That agency shall decide within 30 days whether to classify this information.

Sec. 1.4.  Classification Categories.  Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a)  military plans, weapons systems, or operations;

(b)  foreign government information;

(c)  intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d)  foreign relations or foreign activities of the United States, including confidential sources;

(e)  scientific, technological, or economic matters relating to the national security;

(f)  United States Government programs for safeguarding nuclear materials or facilities;

(g)  vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

(h)  the development, production, or use of weapons of mass destruction.

Sec. 1.5.  Duration of Classification.  (a)  At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information.  Upon reaching the date or event, the information shall be automatically declassified.  Except for information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, the date or event shall not exceed the time frame established in paragraph (b) of this section.

(b)  If the original classification authority cannot determine an earlier specific date or event for declassification, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority otherwise determines that the sensitivity of the information requires that it be marked for declassification for up to 25 years from the date of the original decision.

(c)  An original classification authority may extend the duration of classification up to 25 years from the date of origin of the document, change the level of classification, or reclassify specific information only when the standards and procedures for classifying information under this order are followed.

(d)  No information may remain classified indefinitely.  Information marked for an indefinite duration of classification under predecessor orders, for example, marked as "Originating Agency's Determination Required," or classified information that contains incomplete declassification instructions or lacks declassification instructions shall be declassified in accordance with part 3 of this order.

Sec. 1.6.  Identification and Markings.  (a)  At the time of original classification, the following shall be indicated in a manner that is immediately apparent:

(1)  one of the three classification levels defined in section 1.2 of this order;

(2)  the identity, by name and position, or by personal identifier, of the original classification authority;

(3)  the agency and office of origin, if not otherwise evident;

(4)  declassification instructions, which shall indicate one of the following:

(A)  the date or event for declassification, as prescribed in section 1.5(a);

(B)  the date that is 10 years from the date of original classification, as prescribed in section 1.5(b);

(C)  the date that is up to 25 years from the date of original classification, as prescribed in section 1.5(b); or

(D)  in the case of information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, the marking prescribed in implementing directives issued pursuant to this order; and

(5)  a concise reason for classification that, at a minimum, cites the applicable classification categories in section 1.4 of this order.

(b)  Specific information required in paragraph (a) of this section may be excluded if it would reveal additional classified information.

(c)  With respect to each classified document, the agency originating the document shall, by marking or other means, indicate which portions are classified, with the applicable classification level, and which portions are unclassified.  In accordance with standards prescribed in directives issued under this order, the Director of the Information Security Oversight Office may grant and revoke temporary waivers of this requirement.  The Director shall revoke any waiver upon a finding of abuse.

(d)  Markings or other indicia implementing the provisions of this order, including abbreviations and requirements to safeguard classified working papers, shall conform to the standards prescribed in implementing directives issued pursuant to this order.

(e)  Foreign government information shall retain its original classification markings or shall be assigned a U.S. classification that provides a degree of protection at least equivalent to that required by the entity that furnished the information.  Foreign government information retaining its original classification markings need not be assigned a U.S. classification marking provided that the responsible agency determines that the foreign government markings are adequate to meet the purposes served by U.S. classification markings.

(f)  Information assigned a level of classification under this or predecessor orders shall be considered as classified at that level of classification despite the omission of other required markings.  Whenever such information is used in the derivative classification process or is reviewed for possible declassification, holders of such information shall coordinate with an appropriate classification authority for the application of omitted markings.

(g)  The classification authority shall, whenever practicable, use a classified addendum whenever classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination at the lowest level of classification possible or in unclassified form.

(h)  Prior to public release, all declassified records shall be appropriately marked to reflect their declassification.

Sec. 1.7.  Classification Prohibitions and Limitations.    (a)  In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1)  conceal violations of law, inefficiency, or administrative error;

(2)  prevent embarrassment to a person, organization, or agency;

(3)  restrain competition; or

(4)  prevent or delay the release of information that does not require protection in the interest of the national security.

(b)  Basic scientific research information not clearly related to the national security shall not be classified.

(c)  Information may not be reclassified after declassification and release to the public under proper authority unless:

(1)  the reclassification is personally approved in writing by the agency head based on a document-by-document determination by the agency that reclassification is required to prevent significant and demonstrable damage to the national security;

(2)  the information may be reasonably recovered without bringing undue attention to the information;

(3)  the reclassification action is reported promptly to the Assistant to the President for National Security Affairs (National Security Advisor) and the Director of the Information Security Oversight Office; and