Donald Trump has once again found himself at the centre of a storm – this time for reportedly sharing “codeword classified” information with the Russian ambassador.
The information, which related to the use of laptops on aircraft, is understood to have been passed to the Americans by an ally who had apparently chosen not to share it with Moscow.
It was marked “codeword classified”, and was highly sensitive.
Mr Trump has now said he “had the absolute right” to tell the Russians “acts pertaining to terrorism and airline safety”.
So what are the rules around confidential information, and does he really have the right?
What is classification?
According to an executive order signed by Barack Obama in 2009, something is considered classified if “the national defence has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations”.
Once it is classified, the sharing of that material could lead to prosecution. However, there is no law against it.
What do the different levels of classification mean?
There are three different levels of classification
- Top secret is the highest level, and is information the government believes could “reasonably… be expected to cause exceptionally grave damage to the national security”. According to The Economist, about 1.4 million people have access to these documents.
- Secret is for information which could “reasonably… be expected to cause serious damage”.
- Confidential applies to information which could simply “cause damage to the national security”. Most military personnel have this level of clearance.
However, there is also a way to add a second level of clearance to top secret. It is administered by the CIA, and allows only those with the codeword access to the information. The material discussed by Mr Trump with the Russians was under a codeword, sources told the Washington Post.
These classifications are given by either the US president, vice-president, but more usually the heads of the various intelligence agencies.
How do things get ‘declassified’?
When the classification is set, a timescale for declassification is set. In some cases, it may be an event which will signal that the information can now be made public, in others an actual date. If neither of these things are obvious, it will be automatically set for 10 years’ time. However, it could also be kept classified for 25 years.
Importantly, no information should be classified indefinitely.
Is there a presidential loophole?
In short, yes.
Declassification before the agreed time – or even just downgrading its classification level – is a decision for the person who originally gave the information that level of security, their successor or supervisor. The Director of National Intelligence can downgrade or declassify an item, after consultation with the relevant heads of department.
However, the rules for classification are considered part of the president’s constitutional powers – so if he wants to declassify something, he can, according to the New York Times.
Steven Aftergood, a government secrecy specialist with the Federation of American Scientists, explained to the newspaper: “It is an expression of presidential authority, and that means that the president and his designees decide what is classified, and they have the essentially unlimited authority to declassify at will.
“The president defines the terms of the security clearance system and the parameters that determine who may be given access to classified information.”
What would happen if anyone else shared confidential information?
In theory, they would lose their security clearance, or even end up in prison, prosecuted under the espionage laws. Edward Snowden leaked top secret information, and ended up seeking asylum in Russia in order to avoid prosecution.
But it seems there is no hard and fast rule: American news site The Hill pointed out last year that the punishments seemed to vary based on who you were, not the information you leaked.
What does this mean for intelligence sharing in the future?
If Mr Trump has shared highly sensitive information, he has broken a “golden rule”, the BBC’s security correspondent Frank Gardner has said.
“There is a golden rule in the world of espionage that when one government supplies intelligence to another it must not be passed on to a third party without permission of the original supplier,” he said.
“The reason is simple: it could put the lives of their human informants at risk.”
But will this make US allies think twice about sharing information with their American counterparts?
Potentially not. Some in the international community have already sought to play down the implications of what Mr Trump may or may not have done.
New Zealand’s foreign affairs minister Gerry Brownlee said Russia and the US needed to work closely together, and cited the Trump administration’s denial of the story.