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.

• Author: Abel, Jonathan
• Position: Introduction through II. Can I Be Prosecuted for Disobeying Retroactive Classification? A. Classified Documents, p. 1037-1067

INTRODUCTION I. RETROACTIVE CLASSIFICATION IN PRACTICE AND THEORY A. Examples of Retroactive Classification B. The History of Retroactive Classification C. The Rules Governing Retroactive Classification 1. Retroactive Reclassification 2. Retroactive "Original" Classification 3. Retroactive Classification of Inadvertently Declassified Documents. II. CAN I BE PROSECUTED FOR DISOBEYING RETROACTIVE CLASSIFICATION? A. Classified Documents 1. Why an Espionage Act Prosecution Would Fail 2. Why an Espionage Act Prosecution Would Succeed 3. What to Make of the Debate B. Retroactively Classified Documents 1. Are the Threats of Prosecution Real? 2. Source/Distributor Divide 3. Espionage Act 4. First Amendment III. RETROACTIVE CLASSIFICATION IN OTHER AREAS OF THE LAW A. "Born Classified" and the Atomic Bomb B. Social Security Numbers C. Police Officer Personal Information, Unexecuted Arrest Warrants, and Rape Victims' Names D. Tax Return Information E. Court Records and Transcripts F. Freedom of Information Act IV. SEPARATION OF POWERS V. CONCLUDING NOTE AND SUGGESTIONS FOR REFORM INTRODUCTION

Now you see it. Now you don't.

This is not a magician's incantation. It is a description of retroactive classification, a little-known provision of U.S. national security law that allows the government to declassify a document, release it to the public, and then declare it classified later on. Retroactive classification means the government could hand you a document today and prosecute you tomorrow for not giving it back. Retroactive classification can even reach documents that are available in public libraries, on the Internet, or elsewhere in the public domain.

The executive branch has used retroactive classification to startling effect. The Department of Justice, for example, declassified and released a report on National Security Agency (NSA) wiretapping only to declare, years later, that the report was once again classified. The journalist who had received the report was threatened with prosecution if he did not return it. Retroactive classification has also targeted government documents revealing corruption in Iraq, violence in Afghanistan, and mismanagement of the national missile defense program. In each of these cases, the government released a document in an unclassified form through official channels--not through a leak--and then turned around to classify it.

This practice would be troubling enough if it actually removed the document from the public domain. But in the Internet Age, once a document is released to the public, it is often impossible for the government to retrieve it. While retroactive classification does not remove the document from the public domain, where our enemies can access it, retroactive classification does remove the document from the public discourse, prohibiting members of Congress, government auditors, and law-abiding members of the public from openly discussing it.

In the ongoing debate about the balance between secrecy and transparency in government affairs, retroactive classification tests the limits of the government's ability to control information in the public domain. The questions raised by retroactive classification go far beyond those raised by the WikiLeaks and Edward Snowden disclosures. In those cases, the information remained classified even though it was widely available in the public domain. A similar situation occurs with retroactive classification when information in the public domain becomes classified. The difference is that in retroactive classification, the government initially released this information in a non-classified form and only later decided to classify it. This difference makes retroactive classification much more complicated from a legal standpoint because it involves the government's going back on its initial classification decision. Retroactive classification thus forces us to ask what limits, if any, exist on the government's authority to control information. Can the government reach into the public domain to make a secret out of something it has already disclosed? Are we obligated to go along with retroactive classification decisions? What are the implications beyond national security law? This Article takes up these pressing questions.

Retroactive classification is a doctrine rife with contradictions. Just ask the former director of the Information Security Oversight Office, the federal agency charged with overseeing the classification system. He called it "a metaphysical impossibility" to classify information "whose disclosure was authorized in the first place." (1) Members of Congress have been unstinting in their criticism, disparaging retroactive classification as "an insult to the American people, to the public, to this institution of Congress," (2) "an attempt to stymie public debate," (3) and an "absurd effort to put the toothpaste back into the tube." (4) The Washington Post editorial board thought retroactive classification "would be funny if it weren't so emblematic of a disturbing new culture of government secrecy." (5) James Bamford, a journalist who experienced it firsthand, warned of "total anarchy for historians and scholars ... if one administration would be permitted to recall history by forcing these people to return materials released by a previous administration." (6) Even university archivists, generally an even-tempered lot, have expressed outrage, excoriating the retroactive classification of 25,000 documents at the National Archives as "a breathtaking assault on the fundamental principles under which we try to operate." (7)

Despite the criticism, however, retroactive classification remains the law, and an altogether unexplored one, at that. Legal scholarship has provided only glancing treatment. A few authors mention it in passing to point out abuses in the larger classification system, (8) or to draw analogies to Freedom of Information Act and state secrets case law. (9) Two student notes have taken positions on its constitutional legitimacy--one in favor, (10) and the other opposed. (11) But no systematic examination of the topic exists. No one has looked at how retroactive classification came about, what laws constrain--or fail to constrain--it, or how it is used in practice. Nor has anyone analyzed the essential question of whether retroactive classification can be enforced by criminal prosecution. (12) This Article aims to fill those gaps.

The Article proceeds in four Parts. Part I begins with several examples of retroactive classification and then looks at the evolution of the practice by drawing on congressional hearings, original interviews, and the text of the executive orders that have authorized retroactive classification. Since the late 1970s, retroactive classification has been alternately banned and embraced by successive administrations, (13) and the growth of the Internet has made the notion of reclaiming documents from the public domain increasingly absurd. This Part argues that the current law provides no effective restraint on the practice of retroactive classification.

Part II asks whether retroactive classification can be enforced by criminal prosecution. If the government retroactively classifies a document in my possession, and I ignore the new classification, can I be prosecuted for publishing it? This Part begins with the debate about whether the Espionage Act--the most likely tool for enforcing retroactive classification--can be applied to people outside of the government who receive classified documents and then publish them. Part II next discusses how the Espionage Act analysis would differ if the documents were not just classified but retroactively classified. It shows how retroactive classification challenges basic assumptions about what it means to leak information, who has an obligation to keep a secret, and how to define the public record. Part II concludes that a prosecution based on retroactively classified information could go forward despite serious Espionage Act and First Amendment problems.

Part III steps back to survey how other substantive areas of the law deal with their own versions of retroactive classification. Retroactive classification may be mean-spirited, unconstitutional, and even metaphysically impossible, but it is not without precedent. There are many other contexts outside national security where the government attempts to punish the publication of information that it has previously disclosed in the public record, including its attempts to protect Social Security numbers, police officers' home addresses, tax return information, and other sensitive pieces of information. These analogues from other areas of the law not only make retroactive classification seem more plausible as a threat to free speech and the freedom of the press, but also show how retroactive classification fits into a debate that transcends national security law--a debate about the government's ability to control information in the public record. Justice Stewart famously wrote: "So far as the Constitution goes, the autonomous press may publish what it knows, and may seek to learn what it can." (14) But retroactive classification and its analogues challenge that claim.

Finally, Part IV looks at still another constitutional complication for retroactive classification: the separation of powers. Members of Congress claim the executive branch has used retroactive classification to gag legislative debate and impede constitutionally required oversight. But the Constitution's Speech or Debate Clause protects these legislators from being prosecuted or even questioned for anything they say in debate--even if their statements reveal classified information. Part IV explores the paradox that members of the legislative branch are both more protected from and more vulnerable to retroactive classification than members of the public.

The concluding note makes several practical suggestions for reform. These...