re: #247 No Malarkey!

No, the President can’t declassify Top Secret documents merely by having magic thoughts.

Mr. Hertling’s thread also doesn’t address the Department of Energy’s classification system (Restricted Data/Formerly Restricted Data).

The President cannot declassify RD/FRD information. RD/FRD is used in combination with Confidential/Secret/Top Secret, and specifically applies to atomic weapon programme data. Making information Formerly Restricted Data only means it now can be shared with other parts of the government in accordance with the law surrounding classified information.

The Atomic Energy Act of 1946 creates the category of Restricted Data:

Anyone who communicates, transmits, or discloses… any document, writing, sketch, photograph, plan, model, instrument, appliance, note, or information involving or incorporating restricted data… to any individual or person, or attempts or conspires to any of the foregoing, with intent to injure the United States or with intent to secure an advantage to any foreign nation, upon conviction thereof, shall be punished by death or imprisonment for life… or, by a fine of not more than $20,000 or imprisonment for not more than twenty years, or both.

As such, since the act includes “all data,” it creates a system of information which is “born secret,” even if it wasn’t created by the US Government. As such, it is a form of prior restraint, which is unconstitutional. However, that has only been tested one time, in the case United States v The Progressive (1979). In that case, the Department of Energy exercised the doctrine of “born secret” to assert The Progressive magazine, about to reveal the existence of the hydrogen bomb obtained from publicly available sources. DOE asserted the article if published would violate the Atomic Energy Act of 1954 (an update to the 1946 act creating the Formerly Restricted Data classification).

The case initially imposed an injunction against publication. The writers and publishers refused to accept a security clearance from the government, which would put a restraint on their speech. Their lawyers did receive security clearances to represent them in court, but were not allowed to talk to their clients about the case.

The government dropped the case against The Progressive when the information was published elsewhere. In the Wikipedia article above, how that information was published elsewhere turned out to be a strange turn of events, involving Lawrence Livermore National Laboratory, Sen. John McCain, and even a college contest to try to design a hydrogen bomb (the winner being the first contestant to have DOE classify their design).