> CUI is not classified information, as its name indicates, but it should, generally speaking, be protected with access controls and not widely disseminated. Wyden is clearly not a fan of this labeling, which he described as a "made up designation with no basis in law." CUI was created by an executive order from President Obama in 2010.
This is the bigger problem. Classified documents have a mandatory declassification date that is only overridden in special circumstances. CUI can last indefinitely because it's an extra-legal construction designed to stay outside the classification system.
That’s untrue, they have a mandatory declassification review date. The review can push the date back effectively infinitely through further reviews. The special circumstances, as you call them, are that the reviewer deems that information needs to remain classified.
Classification doesn’t derive it’s legal existence from statute. It’s the POTUS’s inherent authority to maintain (and disclose) state secrets under the constitution and separation of powers doctrine. Congress has limited authority to regulate this executive power.
I’m unaware of the “state secret” clause in the executive section, while Congress is explicitly granted the power “To make Rules for the Government and Regulation of the land and naval Forces”.
Regulating classification sounds like “making rules for the government”.
It’s referring to rules for how the military is governed, and for how the military is regulated. So the rules control the military’s government, and the military’s regulation.
It’s somewhat fair, that the words “state secrets” do not appear, but I would hope we could agree that any sovereign state would have to be anle to keep secrets, particularly in the realm of military, war, diplomacy, law enforcement investigations, espionage, etc. It’s a power the executive must have and “ The executive Power shall be vested in a President of the United States of America.”
Of course, the Legislature and Judiciary also have the inherent right to keep secrets. The Supreme Court keeps their deliberations secret, because they feel they need to. Congress keeps some meetings secret. None of that falls into the classification system.
It comes from the history and tradition of the terms as they were used at the time of the founding. Keeping secrets has always been something a king would do.
Consider the alternative. What if the legislature declined to provide authorization? If they decided not to approve a treaty, the nation could survive and the POTUS could still generally do their job. If the legislature denied the POTUS the right to keep secrets, it’d be utterly impossible to fulfill the duties of the office. If - per congressional mandate - he had to truthfully answer reporters questions about out nuclear capabilities and procedures, or explain to a wartime enemy his plans, reveal the identities of spies… These are all things that are so anathema the duties of the executive office that you can’t honestly say someone holds the executive power if they don’t have control over these things.
But, yeah, you’re completely fair in the fact that in constitutional law many of the most important aspects aren’t spelled out in great detail and can be up for honest debate.
I did want to clarify that the executive privilege allows the POTUS to keep and disclose secrets as desired, the classification system is also pretty necessary.
The President regularly needs subordinate executive officers, staff, etc. to know and keep secrets. The Executive Privilege is enough to help them keep the secrets if they’re willing, but sometimes subordinates want to leak secrets. If it’s wartime and they’re sharing secrets with the enemy, then that may be treason, but generally there wouldn’t be any criminal penalties for leaking secrets during times of peace, etc. The classification system exists to support the President. If he says to keep his secret and you don’t, the legislature says thats a crime.
I dont thunk anyone is saying that govt must not have secrets
The pushback in this article (and in this thread) is against some kind of supra priviledge that you can default certain secrets to "default opt out" from standard secret rules
There is a problem with an entity that has the monopoly on violence also having a monopoly on state information
This is the bigger problem. Classified documents have a mandatory declassification date that is only overridden in special circumstances. CUI can last indefinitely because it's an extra-legal construction designed to stay outside the classification system.