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Top Secret: Is Information Classification a National Security Defense or Hazard to Public

Safety?

Kimberly M. Jones

Legal Studies Academy at First Colonial High School

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Abstract

This paper is an analysis of the classification system in the United States and the extent to which

the classification of information has an effect on politics and society. It begins with a history and

explanation of the classification system and why it is necessary. Various laws have addressed

this issue over the past century and have evolved over time to protect the current issues of that

time. The author will also analyze major court cases that reflect the effects of the classification

system and its implementation in government. This paper also determines the relationship

between classification laws of the United States and Russia. It looks into the effects of

information classification on government investigations, public opinion, and its implications on

public media. The author discusses a problem with information classifications and analyzes the

possibility of a solution this problem. The following questions are analyzed and expanded upon

throughout the paper:

➢ What are the various levels of classification?

➢ What criteria is needed for information to be classified on this scale?

➢ How does the classification of information in the United States affect the

everyday work of law enforcement agencies?

➢ Have there been studies on the effects of the classification on law enforcement

agencies?

Keywords: Administrative Law, Original Classification Authority

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Top Secret: Is Information Classification a National Security Defense or Hazard to Public

Safety?

In today’s society, the free flow of information is constantly talked about in the media

and is a daily issue for law enforcement officers and legislators. In the 2016 Presidential

Election, the release of Hillary Clinton’s classified emails, from when she was serving as

Secretary of State, was an important factor that negatively impacted her campaign. The

sensitivity of the information and her mishandling of this classified information scared many

people because they felt these actions put the nation in danger of attack by foreign entities. In

politics, the protection of sensitive information, especially when threatened to be released, is a

hot issue. This was also evident in 2013 when Edward Snowden released highly classified

information about the National Security Agency’s operation on internet surveillance within the

United States. There was mass outrage over his action, which in turn resulted in a hunt for

Snowden who escaped to various countries that do not have extradition laws ("Edward Snowden

fast facts," 2017). Snowden’s actions exemplified the spark of a political movement revolving

around the idea that the government has gained too much power to protect national security and

that some feel a change is needed to lessen the scope of this control. Law enforcement officers

must also deal with sensitive information in their investigations, and at points this can impede

their investigations. If an officer does not have the required clearance to access required

information for their investigation, then they must find another way to work through their

investigations.

Information is defined by Oxford Dictionary as “facts provided or learned about

something or someone” ("Information | Definition of Information in English by Oxford

Dictionaries," n.d.). In governmental operations, information is used to aid in the facilitation of

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daily operations, and, without useful information, the United States government would not be

able to provide security to the American people. Information classification is the idea that the

public should be protected from the release of certain pieces of information, so that foreign

agencies or enemies of the state cannot use said information against them. The intentions of the

government in creating laws governing the classification of information were to protect national

security while preserving the flow of information to the public (Exec. Order No. 13526, 2009).

Information classification has been an effective tool in protecting the public from foreign and

otherwise belligerent opponents, but its ability to effectively preserve the free flow of

information is questionable. The classification system for information in the United States limits

the ability for law enforcement officers and the public to effectively make important decisions in

their daily operations, but without the classification system the American people would be in

jeopardy of attack by enemies of the nation.

History

Throughout the history of the United States there have been conflicts over the investment

of foreign countries in American affairs and the precautions needed to be taken to prevent such

countries from accessing harmful information. This was first manifested in George

Washington’s Farewell Address in which he explains that the United States should remain

isolationist because it is in the best interest for the country. This changed when America was

forced to choose sides in the War of 1812. Over time, American diplomacy has changed based

on the needs of the country (Newman & Schmalbach, 2014).

Influential Wars and Conflicts of the Twentieth Century

Information classification was first seen on a large scale in the United States during

World War I where the United States generally felt threatened by aggressor nations at that time.
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The utilization of espionage began to be used as a way to gather information on foreign

adversaries. It was used to get an upper hand in military proceedings at the time. “Espionage is

the crime of spying on the federal government and/or transferring state secrets on behalf of a

foreign country” (Legal, "Espionage Law and Legal Definition," n.d.). Both the United States

and foreign countries used espionage as a way to continue advancing strategies to defeat their

enemies. As it became a larger issue, officials saw the need to protect the United States from

spies of other countries. As a result, the Espionage Act of 1917 was passed. This law made it

illegal to impede in the activities of the armed forces or to advocate for the United States’

enemies at that time ("U.S. Congress passes Espionage Act," n.d.). The necessity to classify

information rose as a result of increased espionage; at some points United States agencies were

unsure if some of their members were working with or against them. Information classification

was also seen as necessary because it guaranteed the safety of allies in sharing information with

the United States. In the opinion of Robert Turner, a professor at the University of Virginia,

information classification is “critically important if we are to be able to continue getting secrets

from foreigners” because “if we can’t keep secrets we will likely not get secrets from foreign

sources” (R. Turner, Personal communication, December 1, 2017).

Transition to the War on Terror

At the beginning of the 21st century, an apparent shift occurred in the way national

security would be dealt with and protected in the United States and throughout the world. On

September 11, 2001, a terrorist cell attacked the world trade centers and the pentagon killing

around two thousand people. Because of the mass panic, chaos, and fear that resulted from these

attacks, the government was granted greater control over legislating and executing such

legislation in order to protect national security. For example, the Providing Appropriate Tools
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Required to Intercept and Obstruct Terrorism (PATRIOT) Act was passed, which broadened the

scope of the government’s ability to protect national security from terrorism ("The USA

PATRIOT Act: preserving life and liberty," n.d.). This act has been controversial because of the

extent to which it broadened the scope for the executive to enforce the legislation that is signed

into law. This transition has grown the government’s sense of purpose in protecting the country,

but has also created a slight sense of entitlement. This sense of entitlement is characterized by a

feeling that more classification is necessary to keep the public safe, but in reality the level of

classification has decreased the free flow of information ("Classification of national security

information," 2007).

Rule of Law

Laws have been passed to protect the public in the government’s endeavours in foreign

affairs and national security. This means that, under each citizen’s social contract, they have

given up some right to free information in order to protect their physical security. This was

mainly seen with the introduction of the National Security Act of 1947.

National Security Act of 1947

In the time that the National Security Act was passed, war was running rampant

throughout the world. People in all countries were extremely paranoid about foreign

involvement in their governmental and military affairs. The National Security Act of 1947 was a

measure instilled to prevent the invasion of foreign country operations in the affairs of the United

States government and military.

Executive Order 13526

Under the Obama Administration, Executive Order 13526 was passed to redefine the

levels of information classification in the United States. This executive order replaced older
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executive orders from other administrations that defined the classification levels such as

Executive Order 12958 and Executive Order 13292 ("Amendment to EO 12958," n.d.). For a

document to be classified under Executive Order 13526 the following conditions must be met:

(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. (Exec. Order No. 13526, 2009)

Important Court Cases

Throughout the history of the United States, courts have been influential in the

administration and application of laws. Interpretations formed in the United States courts of law

have had lasting impacts on how those laws can be carried out and determines specifically what

the law defines. In the Supreme Court case, Gibbons v. Ogden the Supreme Court’s decision

granted Congress the ability to regulate interstate commerce under the Elastic Clause of the
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United States Constitution. To this day, this court case has expanded Congress’ ability and

proves an important example of the lasting effect a court’s decision has on the implementation of

legislation ("Gibbons v. Ogden," n.d.).

Snepp v. United States

In 1968, when Frank Snepp agreed to work at the CIA, he signed a confidentiality

agreement that restricted him from creating works about his time with the agency without

receiving prior approval from the agency. Snepp “led the agency on” by telling them he would

submit his novel about United States involvement in South Vietnam before he published it, but

failed to do so. The Supreme Court agreed with the CIA that Snepp had violated his

confidentiality agreement and could not receive royalty payments on his book when it sold. The

court decided that the publishing of his book inhibited the agency from effectively carrying out

its duties. The Supreme Court cited the idea that the publication of Snepp’s book especially

inhibited the ability for operatives to maintain their cover in areas discussed in the book (Snepp

v. United States).

Confidentiality of information is a necessary practice; it protects people who put their

lives in danger to ameliorate the needs of the country. Snepp v. United States is a court case

exemplifying the extent of seriousness that the United States government take about protecting

classified information and national security as a whole. The courts believed Snepp’s actions

caused a reasonable risk to national security and, as a result, barred him from benefitting from

the publication of his book. The government had the right to take away some of his liberties in

order to protect national securities. This case exemplifies that information classification in the

United States is necessary for the protection of public interest and national security (Snepp v.

United States).
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CIA v. Sims

In the late 1950’s and early 1960’s, the CIA founded a project to counter brainwashing

and interrogation techniques used by the Soviet Union and China. Parts of the project were

given out to various institutions throughout the country. Sims filed a petition to disclose the

institutions that had been carrying out the research for the project; he cited the Freedom of

Information Act as the legal basis for the petition. The CIA stated that they were exempt from

disclosing such information because it had guaranteed confidentiality to the institutions when

they contracted them. The court decided in favor of the CIA because the Freedom of

Information Act and the National Security Act had granted the Director of the CIA discretion in

deciding what information can be classified or unclassified to protect the sources of information

(CIA v. Sims).

CIA v. Sims exemplifies the guarantees granted to higher level officials; their powers

demonstrate a great control over the freedom and flow of information in the United States. This

concept is crucial to the security of American lives, but sometimes the extent of the power

guaranteed is overwhelmingly large. Confidentiality can be extended to those that were

guaranteed it and whose safety would be threatened should their work become public knowledge.

This court case extends the extent and necessity of information classification into the United

States and that the impact of information classification is not only to protect American

informants from foreign entities (CIA v. Sims).

Department of Homeland Security v. MacLean

In 2003, the TSA learned about a potential hijacking plot that would occur. The

Administration made the Air Marshals aware of the possible threat, but cancelled the missions

for the Air Marshals on flights leaving from Las Vegas. Maclean felt as if this compromised the
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security of passengers on these flights and attempted to persuade the agency to reverse its

decision. When the Administration refused to do so, MacLean went to MSNBC to expose the

Administration and incite public outrage. The Administration later found out that MacLean was

the one who exposed the cancellation of the missions and said that he had disclosed information

without authorization. The court decided that MacLean’s actions had been protected under the

Whistleblower Protection Act and that his actions were not explicitly prohibited by law

(Department of Homeland Security v. MacLean). The Whistleblower Protection Act is a law

passed in 1989 that says if a government worker releases information that they reasonably

believe violates a law, then they cannot be punished for exposing the injustice that they believe is

occurring ("Information on Whistleblower Protection Act and Whistleblower Protection

Enhancement Act," 2017).

Department of Homeland Security v. MacLean demonstrates that there are various layers

to the classification system. Safeguards to the public’s free flow of knowledge have been created

to even out the injustices created by the extremes of the classification system, such as

overclassification and misinformation (Department of Homeland Security v. MacLean).

The Problem- Overclassification

Overclassification is the idea that those in power have overstepped the boundaries of their

privileges and are withholding vital information from the American people. With the rise in the

War on Terrorism, overclassification has become a prominent issue in today’s government.

Secrecy is the “compulsory withholding of information, reinforced by the prospect of sanctions

for disclosure” (Moynihan, "The culture of secrecy," 1997). Moynihan explains that since the

government has been given the ability to keep information from the public that a “culture of

secrecy” has been created. Those withholding information from the public tend to do so because
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they wish to protect the people from harm and the fear of that what is occurring will affect their

daily life and the structures of society.

United States v. Russia

Russia and the United States share similar information classification laws. For example,

defined in Government Decisions No. 870, Russia’s classification laws contain three categories

with similar titles and requirements for classification. The three categories for information

classification in Russia include Secret, Completely Secret, and Of Special Importance. The

classification categories increase in severity of danger to national (Pike, "Classification levels

used by the Russian Federation," 1997). The similarity of Russian and American classification

laws fits a pattern of distrust and secrecy that occurred throughout the 20th century. Evidently,

this similarity can likely be seen as a result of World Wars I and II and the Cold War.

Effects on the Community

Law Enforcement Officers

Law enforcement protects localities, states, and the entire nation. In their endeavors,

society is able to feel safe and secure because society knows there is an entity protecting it from

harm. Information classification allows law enforcement officers to carry out investigations

without the public impeding it or providing their unwanted input. A vast majority of the time,

law enforcement officers are not dealing with extremely sensitive cases, so the effects of

information classification are rarely exhibited. At times, however, information classification can

impede investigators from acquiring the necessary information to complete the investigation,

which can make their job more difficult and cause controversy. For example, finding reasonable

evidence against a government agent who committed a crime would be difficult if the

government does not disclose his or her job and what they do on a daily basis that could have
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contributed to the crime he or she committed. Allowing for this worker to be prosecuted to the

fullest extent of the law would be nearly impossible without sufficient evidence to prove that he

or she committed the crime and is guilty.

Public Opinion

As a result of the United States’ information classification system, the average person

feels safe and generally informed on the issues that are current and pertain to their lives.

Overclassification is a small price to pay for this freedom of security. In a survey of teenagers,

many felt that information classification is necessary, but sometimes feel it is excessive. One

mentioned that Hillary Clinton’s email scandal shows a slight drawback of information

classification because, has it not been released, she would have been protected from public

outrage about using a personal email to send classified information. This affected a person’s

decision in the recent election and is a factor that contributes to a belief that information is not

flowing as freely as it should.

The Media

Bias is prevalent in today’s media outlets; escaping bias is impossible to do, but

minimizing its effects on a supposedly objective piece is crucial in the public’s decision making

process. The classification of information leaves gray areas when reporting news events because

these media outlets may not have the full story. As a result, they report what they believe

happened and, to those viewing the report, this belief becomes fact. Bias in the media is both a

cause and effect of overclassification. It can be considered a cause because the media outlets

could instantly share sensitive, but unclassified information to the public. The dangers of sharing

too much information is a fear of many with original classification authority, so they sometimes

decide to deem a piece of information classified to protect it from exposure to the media. Media
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bias can also be an effect of overclassification because the media fills questionable areas on

situations with their opinions, which creates varied stories on an event that are often not near the

truth.

Solutions

The classification of information in the United States is necessary to protect the public

from constant fear, and to protect them from invasions in national security. This paper was

originally theorized with the belief that the classification of information was an impediment to

the facilitation of everyday law enforcement duties; however, classification of information is

necessary to granting freedom to all citizens while protecting their sense of security. There are,

however, flaws in the way information classification laws have been carried out. Vague wording

in legislation has resulted in information overclassification and to a form of law called

Administrative Law. This allows bureaucrats to fill in the blanks that have been left by vague

words in legislation, which can change the entire meaning of the documents. Specifying the

meaning of various words and phrases in legislation will greatly increase the free flow

information to citizens and will make clear the blurred lines that have resulted from vague

wording.

Conclusion

The United States’ information classification system is a necessary and helpful tool that

protects American society and assists the United States government in carrying out its vital

function. Without this system, chaos and panic would likely run rampant throughout society

because it is difficult to tell what is true and what is false. The protection of the American

people revolves greatly around the decisions of lawmakers to classify information or release it as

public knowledge. While the classification system for information in the United States is
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necessary for national security, there are drawbacks to its implementation in the daily lives of all

citizens. These drawbacks can be fixed through the combined effort of the people and the

government, by specifying the vagueness in the wording of Federal legislation. The system’s

potential for national security protection is too crucial and outweighs the limitations that weaken

its benefits.

The classification system for information in the United States limits the ability for law

enforcement officers and the public to effectively make important decisions in their daily

operations, but without the classification system the American people would be in jeopardy of

attack by enemies of the nation.

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