Do You Have to Keep the Government's Secrets?: Retroactively Classified Documents, the First Amendment, and the Power To Make Secrets Out of the Public Record
57 Pages Posted: 23 Feb 2014 Last revised: 25 Feb 2014
Date Written: February 21, 2014
Retroactive classification is a little-known national security power that allows the government to declassify a document, release it to the public, and then classify it later on — even if the document remains accessible in the public domain. This means you could receive a document today and be prosecuted tomorrow for not giving it back. Drawing on original interviews, historical documents, and other primary sources, this Article provides the first in-depth account of this phenomenon, which threatens the freedom of speech, the freedom of the press, and the separation of powers, but has received only glancing scholarly attention.
The Article begins with examples of retroactive classification, which has targeted material ranging from congressional testimony on the missile-defense system to half-century-old documents at the National Archives. It then examines how the rules that are supposed to limit retroactive classification’s sweep are incapable of doing so in the Internet Age. The Article next asks: Can the government punish someone for disregarding a retroactive classification order? Despite significant statutory and First Amendment concerns, the Article concludes that the answer is yes. Retroactive classification can be enforced by criminal prosecution.
The Article also situates the phenomenon of retroactive classification in the broader debate about the government’s ability to control information in the public domain. As the Article shows, retroactive classification of sorts occurs in many contexts outside of national security law, such as when the government attempts to prevent the publication of social security numbers, police officers’ home addresses, and other sensitive information it has made available in the public record.
Finally, the Article examines the separation of powers implications of retroactive classification. Paradoxically, members of Congress are both more protected from and more vulnerable to retroactive classification than members of the public.
In an era when the government possesses so much sensitive information, and that information is so susceptible to disclosure, retroactive classification suggests that there are only the weakest of legal constraints on the government’s ability to control information in the public record.
Keywords: classified documents, leaks, retroactive classification, Espionage Act, First Amendment
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