It is my understanding that the government cannot legally classify anything they want to. For instance, Obama can’t classify his penchant for strangling hookers and burying them at Camp David. Or more realistically (I hope), Nixon couldn’t classify sending the Plumbers to rifle through the DNC offices at Watergate. If the government does illegally classify something and you, as someone with a security clearance, leak it, is it an affirmative defense that it shouldn’t have been classified in the first place?
I can’t think of any law that pertains to improperly classified information. Information is classified in accordance with Executive Orders, such as 13526. In that EO is a list of items that may not be considered classified, such as concealment of violations of law. The EO also lays out procedures for an individual to challenge the classification of material.
The Espionage Act generally prohibits the release of classified information, but it doesn’t seem to include any process by which the classification can be challenged. The Classified Information Procedures Act is generally a limitation against criminal defendants exposing classified information in open court. And I understand that, in general, the state secrets privilege generally provides great deference to the Executive in determining what information could harm national security.
There does appear to be a precedent relating to the crash of a B-29 bomber in the late 1940s, where survivors of the crash sued the US government. What appears to have been critical evidence was excluded from the trial based upon the Executive claiming that the evidence would damage national security. Decades later, the declassified documents appear to show no sensitive information in them, but reveal that the aircraft were poorly maintained. Even subsequent judicial review seems to have deferred to the judgment of the Executive Branch at that time that national security could have been compromised if the evidence had been presented.
So, my own conclusion is that courts are generally very reluctant to enter into any kind of debate on whether information is properly classified.
I wouldn’t think that any random Joe with a security clearance has the authority to unilaterally decide what should and should not have been classified. I would hope there are mechanisms for challenging whether particular information should be classified (though Ravenman suggests there is not), but in the end, I don’t believe “I didn’t think it should have been classfied” is likely to be seen by a court of law as justification for having leaked it.
IIRC, wasn’t there the guy who wrote a paper for college on how to build a nuclear bomb. Apparently the material was set to “classified”, even though some of it was found in textbooks of the time. There was some discussion about “the textbook is not classified, but if you highlite certain passages you have created a classified document”.
Or the story about the negotiators during one of the START talks. After going in cricles with the soviets in one side discussion, the American negotiator got frustrated. He said “Look, we know you have X missiles here, and X missiles here,” pointing to the map. He was listing off warhead totals when one shocked Soviet negotiator pointed to the Soviet navy representative and said “That’s calssified. You can’t tell him that. He’s not cleared to know…”
I would imagine the government can classify a ham sandwich, and the only argument would be the data is so publicly known that classifying it Secret is irrelevant.
I was about to argue with you, thinking of United States v. The Progressive, but you’re right… the government dropped the case, so it isn’t settled.
However the classification standard and the general principle "born classified"still stands, as far as I can tell, for certain types of technical data (best-known example is nuclear weapons technology). Specifically because the Supreme Court never had a chance to strike down prior restraint of the publication of independently discovered classified information.
There is. You can appeal it to the original classification authority. I believe if you had to go a step further, there’s a neutral arbiter involved.
You’re probably remembering a story about a a type of derived classification called “classification by compilation.” If you put enough unclassified stuff together, you may end up with a classified product.
So no, OP, you can’t just unilaterally declass stuff. There are regs and procedures to do that the right way. If you release it anyhow, you’ll be punished even if it later gets declassified.