Could a US President be denied security clearance?

[treis]

@Ravenman

“The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone.” Myers v. United States

That isn’t like a situation I am talking about.

@Ravenman

Do you have a cite for your view that statutes can subordinate the President to the executive officers he appoints?

You’re missing the point. Take 50 U.S. Code § 3038 for example. Part of it says:

(1) Subject to paragraphs (2) and (3), the Director of the Defense Intelligence Agency may expend amounts made available to the Director under the National Intelligence Program for human intelligence and counterintelligence activities for objects of a confidential, extraordinary, or emergency nature, without regard to the provisions of law or regulation relating to the expenditure of Government funds.

50 U.S. Code § 3038 - Responsibilities of Secretary of Defense pertaining to...

That’s a law authorizing an executive officer to dispense funds in certain cases. Say the Director of the Defense Intelligence Agency refuses to authorize the expenditure of funds when the President wants. The President fires him, gets someone else, they refuse, and so on until the President gives up. He goes to the courts and wins. They agree with you and say that all executive power rests with the President and the law is invalid.

Can the President now dispense these funds himself? Of course not. The law is invalid and the Congressional authorization for the spending is gone. This is the situation you need to provide a cite for. A situation where the President was able to substitute his authorization in a case where the law calls for some other officer’s.

@Ravenman

This thread is a good reminder to me of how frustrating it is to deal with factual questions in a factual forum when several interlocutors admit that they don’t have factual knowledge of the matter at hand. If one is talking about classified information and one starts with the assumption that the foundation of the classification system must be some kind of statute, *you don’t know what you’re talking about, and therefore you shouldn’t assume you’re contributing facts. *

I would be right before I get sanctimonious.

[Slash1972]

@treis

I would be right before I get sanctimonious.

Read this:

@Schnitte

Since the document classification system comes from such Executive Orders, it originates in the President’s own authority, and cannot be binding on him; he has the power to decide how he executes the law, and since Executive Orders are simply a way for him to instruct how the law is to be executed he can deviate from his own Orders.

And this:

@Ravenman

If one is talking about classified information and one starts with the assumption that the foundation of the classification system must be some kind of statute, *you don’t know what you’re talking about, and therefore you shouldn’t assume you’re contributing facts. *

Over and over again until you understand.

[treis]

@Slash1972

Read this

Perhaps you should take your own advice and start with this post:

@treis

I was speaking hypothetically. Note the “say the law were” portion of my post. Saying that the President is the one that currently has the legal authority to classify things doesn’t answer the meat of the OP.

[Slash1972]

@treis

Perhaps you should take your own advice and start with this post:

@treis

Say the law were, for example, that only those authorized by the Secretary of Defense could view a certain classification level. If the SoD refused to give the President authorization then the President would be denied access. If the President ordered a soldier to give him access without the proper authorization, then the soldier ought to refuse to obey as it is an illegal order. If the President really wants access his recourse is to fire the Secretary of Defense and hire one that will give him the authorization.

Fine I can start with outlandish hypothetical laws that would never, ever happen.

Let’s say the law said “Only the Secretary of Defense can authorize viewing of Top Secret information.” This is what you are saying, right?

Now, guess who determines what information is Top Secret? Any guesses? Here’s a hint - the person who runs the Executive Branch.

If such an obviously stupid law was ever passed, the President could simply say “Well, nothing is Top Secret, so the Secretary of Defense has no information to authorize viewing of.” Or the President could say “All Top Secret information is now Cosmic Secret, and as such does not fall under the new legislation”

I can create as many outlandish scenarios as crazy, never gonna-be-passed laws that you can come up with.

Or, you can simply acknowledge the fact that the President controls the classification and declassification of information, and is privy to any information classified IAW the executive order covering classification of information.

[Exapno_Mapcase]

@treis

That’s a law authorizing an executive officer to dispense funds in certain cases. Say the Director of the Defense Intelligence Agency refuses to authorize the expenditure of funds when the President wants. The President fires him, gets someone else, they refuse, and so on until the President gives up. He goes to the courts and wins. They agree with you and say that all executive power rests with the President and the law is invalid.

Can the President now dispense these funds himself? Of course not. The law is invalid and the Congressional authorization for the spending is gone. This is the situation you need to provide a cite for. A situation where the President was able to substitute his authorization in a case where the law calls for some other officer’s.

Even as a hypothetical, this is insane. Why wouldn’t the President appoint himself or herself to the position? There is no law against it, only custom and you are violating every custom in U.S. history.

And why would the Supreme Court declare the law invalid? You don’t present a situation in which the law is unconstitutional, merely that appointees of the President refuse to obey it.

This was settled with Nixon, as said above. If the President won’t behave constitutionally the remedy is impeachment. But the law stands. All your fantasies are not just contrary to sense, they are totally irrelevant to the issue of the Executive Orders that govern proper behavior. They are proof that you don’t understand the issues or the law or even the OP’s question.

[treis]

@Exapno_Mapcase

Even as a hypothetical, this is insane.

Hello? You’re in a thread about the President being denied a security clearance. Insane hypothetical is the entire point of this thread.

@Exapno_Mapcase

Why wouldn’t the President appoint himself or herself to the position? There is no law against it, only custom and you are violating every custom in U.S. history.

The President can’t appoint himself to the position because it requires Senate approval.

@Exapno_Mapcase

And why would the Supreme Court declare the law invalid? You don’t present a situation in which the law is unconstitutional, merely that appointees of the President refuse to obey it.

You’ve missed the point. The vast majority of laws authorize the secretary or some other official of the various departments to do things. Not the President. So if the law says Official X can do ABC, that doesn’t mean the President can do ABC.

[Slash1972]

Well, since we are way past the OP, to which the answer is “No, the US President cannot be denied security clearance, because the President doesn’t have security clearance, nor does he need one,” I’ve lost track of what questions you are posing now. Can to restate?

[treis]

@Slash1972

Now, guess who determines what information is Top Secret? Any guesses? Here’s a hint - the person who runs the Executive Branch.

The amusing thing is that you’re actually wrong about this. The law says:

The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;

18 U.S. Code § 798 - Disclosure of classified information

So it’s clear that, for example, the Secretary of Defense as head of the Department of Defense has the authority to classify information. As would the head of the CIA, NSA, or other similar agency. What’s less clear is whether the President himself could classify anything since he isn’t (AFAIK) the head of any agency.

[Slash1972]

@treis

The amusing thing is that you’re actually wrong about this. The law says:

18 U.S. Code § 798 - Disclosure of classified information | U.S. Code | US Law | LII / Legal Information Institute

So it’s clear that, for example, the Secretary of Defense as head of the Department of Defense has the authority to classify information. As would the head of the CIA, NSA, or other similar agency. What’s less clear is whether the President himself could classify anything since he isn’t (AFAIK) the head of any agency.

Just keep digging, digging, digging.

Where do you think the authority for Original Classification Authority comes from?

I think after this, I’m just gonna quit. Be secure in your knowledge that you know nothing about how information classification works, and be even more secure in your ability to not learn how it works.

[treis]

@Slash1972

Just keep digging, digging, digging.

Where do you think the authority for Original Classification Authority comes from?

The law I just quoted.

@Slash1972

I think after this, I’m just gonna quit. Be secure in your knowledge that you know nothing about how information classification works, and be even more secure in your ability to not learn how it works.

Probably best for everyone involved.

[DataX]

@treis

The law I just quoted.

Probably best for everyone involved.

No it isn’t -the law you just quoted.

Just cause you find a law that quotes something doesn’t mean that that is what originates that controlling power.

People get tripped up on this all the times.

The Constitution is the Controlling Law of the Land
Then comes statutes
And then various administrative stuff.

Congress all the times passes laws that put restrictions on presidential powers that are unconstitutional - if taken to the extreme.

The president doesn’t have to take them to court - as those laws are void ab ignitio. Typically presidents sign the law and issue signing statements saying what parts they think are unconstitutional - bush challenged over 1000 provisions - Obama over two dozen bills (more pro ions, but don’t have th count).

Anything under the executive branch is governed by the president PERIOD. While there are limits - and this is a huge topic - and it isn’t settled law.

and things from one administration don’t carry over to another. That is why stuff like a two-man rule is bullshit - as any new incoming president can simply rewrite that.

Same with stuff like filibusters - any new congress can’t be restrained by previous congresses rules - they start over from the begining.

The law you site is dealing with a criminal code for violations for disclosing classified information - it has absolutely zero to do with where the power to classify documents in first place comes from - despite the fact someone could read the definitions in there and conclude that it does. I get why people would think that, but that isn’t the way the law works.

Nothing trumps the constitution - mush about Cheneys seeming evilness was his true concern over the nature and power of the presidency. He was so concerned about this - that realizing the constitution didn’t have provisions in place - he was concerned that there would be a constitutional crisis if he was to go in a coma or something due to his heart problems - as there was nothing in the constitution to deal with that.

So he signed a letter of resignation - and placed in his safe that only his trusted secretary had access to.

Anyway - getting off tangent.

President doesn’t technically need a security clearance (but I’m sure he has one as it would break all sorts of databases if he didn’t) - and it’s good for morale.

Once both Donald and Hillary are their parties nominees - they both will receive an intelligence briefing.

Once one become president-elect they will get daily briefings - and no one will be checking their backgrounds.

[Ravenman]

Treis - please cite one expert who asserts that classification authority originates from statute.

You’re citing statutes that you do not understand the context of, and trying to explain that context is futile because we’re arguing over such basic facts of this issue. It’s as if you’re trying to argue that Presidents are elected by popular vote, and alternatively saying you’re arguing a hypothetical, refusing others cites while just cherry-picking a few random things in response. This is like tax protester-level discussion about Ohio not being a state or whatever.

Let’s start at the basics and read these cites:

Classified information in the United States

“The United States government classification system is established under Executive Order 13526, the latest in a long series of executive orders on the topic.[1] Issued by President Barack Obama in 2009, Executive Order 13526 replaced earlier executive orders on the topic and modified the regulations codified to 32 C.F.R. 2001.”

https://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information
“This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism.”

https://www.archives.gov/isoo/faqs/identifying-handling-classified-records.html
“Classified national security information is information created or received by an agency of the federal government or a government contractor that would damage national security if improperly released. Since 1940, the President has managed the system of classifying information by executive order (E.O.); the most recent order concerning classified national security information is E.O. 13526, signed by President Obama on December 29, 2009.”

There are several statutes that control other types of non releasable information. That includes the Atomic Energy Act, the Privacy Act, HIPAA, and others. But the fundamental source of the secrecy of military and intelligence information for the entire history of this country, right back to George Washington’s time, is the presidency itself.

If you want to dispute this, find experts who say that Congress established the classification system for defense, intelligence, foreign affairs, and economic secrets. Don’t go rooting around title 50 or title 18. Find the expert who says which statute establishes the Secretary of Defense (or whomever) and not the President as the single classification authority.

[treis]

@Ravenman

You’re citing statutes that you do not understand the context of, and trying to explain that context is futile because we’re arguing over such basic facts of this issue. It’s as if you’re trying to argue that Presidents are elected by popular vote, and alternatively saying you’re arguing a hypothetical, refusing others cites while just cherry-picking a few random things in response. This is like tax protester-level discussion about Ohio not being a state or whatever.

The statutes are the important thing. They give the executive order you cite the force of law. Take a hypothetical:

(1) Congress repeals 18 U.S. Code § 798 and any other law prohibiting the release of classified information.

(2) I e-mail every classified document the government has to the NY Times.

What can the government do to me?

[Ravenman]

Congress must establish statutes to penalize criminal behavior. That does not mean that Congress has established the system of classifying information. The Chief Executive has done that.

Again, find the expert who says that Congress has established this country’s system of classifying national security information. ETA: or find the statute that invests anyone in the Executive Branch the power to classify national security information. Or find the statute that EO 13526 is based upon.

[treis]

@Ravenman

Congress must establish statutes to penalize criminal behavior. That does not mean that Congress has established the system of classifying information. The Chief Executive has done that.

Again, find the expert who says that Congress has established this country’s system of classifying national security information

Congress passes the law and the Executive implements it. Without laws backing it, Executive Order 13526 is meaningless. If there is no penalty for disclosing a piece of information, then that information is not classified in any meaningful sense of the word classified. I think the fact that you ignored my hypothetical demonstrates that you understand this.

@Ravenman

. ETA: or find the statute that invests anyone in the Executive Branch the power to classify national security information. Or find the statute that EO 13526 is based upon.

I have done that.

[sbunny8]

Allow me to clarify my question. I am NOT asking about insane hypotheticals involving congress passing bizarre laws that don’t currently exist, or some ludicrous power struggle between two branches of government. All I wanted to know is, under our current system of laws and regulations, what would happen if an untrustworthy person, who would otherwise be denied a security clearance, were elected President. The consensus answer seems to be that nothing would happen and everyone in the government would continue to give the President access to all the classified information needed to do his/her job as commander in chief.

Thus, it’s not true that the inability to obtain security clearance would somehow disqualify a candidate for President.

[Ravenman]

There is no statute giving the President or the Secretary of Defense the authority to keep secrets. The source of that authority is (currently) EO 13526. What Congress did (I believe it was in 1917) was pass the Espionage Acts to provide for criminal penalties for people who give certain types of information to adversaries (among other things). ETA: you’ll note that the Espionage Act covers information that may not even be classified - like it can be used to punish someone taking a picture of a naval shipyard with the intent to pass that picture to an enemy.

Later, Congress passed other statutes that provided criminal penalties for other disclosures of classified information. For example, the Intelligence Identities Protection Act was passed in 1981 to criminalize the disclosure of CIA officers working under secret personas. Do you seriously think that the true names of CIA officers was not classified until Congress passed that particular law enabling the President and the CIA to classify the names of agents?

Seriously?

[Exapno_Mapcase]

@treis

I have done that.

Oh no you haven’t.

The one law you’ve cited is 50 U.S. Code § 3038. That has nothing to do with the classification system - the word classify in any form is absent, in fact.

Go read EO 13526, which you obviously have not. Take a close look at how classification is treated in it. It is as different from 50 U.S. Code § 3038 as your specious arguments are from reality.

[Ravenman]

@sbunny8

Allow me to clarify my question. I am NOT asking about insane hypotheticals involving congress passing bizarre laws that don’t currently exist, or some ludicrous power struggle between two branches of government. All I wanted to know is, under our current system of laws and regulations, what would happen if an untrustworthy person, who would otherwise be denied a security clearance, were elected President. The consensus answer seems to be that nothing would happen and everyone in the government would continue to give the President access to all the classified information needed to do his/her job as commander in chief.

Thus, it’s not true that the inability to obtain security clearance would somehow disqualify a candidate for President.

Absolutey. Once again: the President does NOT hold a security clearance.

In addition, the Supreme Court has already ruled that laws (as in state laws or Federal statutes) providing for term limits of elected offices are unconstitutional, because they add additional burdens or criteria to the constitutional requirements to serve in elected office. For President, you must be 35, a natural born citizen, and not having served already as President for certain amounts of time (as directed by the 22nd Amendment). Nowhere in the Constitution does it say that the President must be fit to hold a security clearance, so that would be an unconstitutional means to prohibit someone from serving as President.

[Leo_Bloom]

Cosmically Secret. For No One’s Eyes Only.

I like that. The Occultic Itself.