Reading Room Document

Response to the following motion adopted at the February 1974 meeting of the Interagency Classification Review Committee.

This memo responded to a motion adopted by the Interagency Classification Review Committee, which sought the OLC’s advice on the delegation of classification authority. The question arose because an assistant to the president asked OMB to prepare an executive order that would confer “secret” classification authority on three executive officials. The OLC concluded that the authority could be conferred by the president in writing by formal presidential under E.O. 111652 § 2(A), and not by executive order under § 2(D) or by the National Security Council under § 2(B)(2). Section 2(A), which permitted authorization of an official, or acting official, by simple presidential designation in writing, applied to the act at issue. Section 2(D) did not apply because the authorization did not concern a department or its head. While designation under § 2(B)(2) might be possible, since the National Security Council had “Top Secret” authority and could confer “Secret” authority on its “subordinates,” it was not clear whether the officials were “subordinates” of the council––and the lack of clarity could present issues of proof in the context of criminal proceedings involving the improper disclosure of classified information.

March 28, 1974