Document #19: US Nuclear Capability
[S/FRD] Undated document concerning nuclear weaponry of the United States
Ordinarily, classified documents fall within the purview of the Executive Branch to classify or declassify. You may, for example, have heard that the President can declassify any document. This is
usually true, because
most classifications inside the US government track their authority back to the President’s Article II powers as Commander in Chief (or Foreign Affairs), and in both cases are regulated by Executive Order 13526 and its predecessors. Classification crimes are proscribed by statute (as National Defense Information), but
usually the definition of National Defense Information will lean on the Executive Branch’s definitions, as defined in the Executive Order.
Not so with nuclear documents. Classification of
these documents is by statute, not by EO 13526 or its predecessors. Specifically, these are classified directly via the Atomic Energy Act.
In this group, document #19 is special. This is
Formerly Restricted Data, and is classified by virtue of the Atomic Energy Act (as implemented by 10 CFR part 1045). Trump could not have declassified this document
even while president—at least not directly. It is National Defense Information by statute, not by executive order.
By statute, documents are classified under the Atomic Energy Act if the Department of Energy and Department of Defense agree that the document (or category) falls within the categories laid out in the Atomic Energy Act. If DOE and DOD disagree, the President can break the tie (in either direction). This means the President
could in principle force documents to be declassified by directing the relevant Secretaries to declassify the documents (and firing them if they don’t comply). But critically: the process
must occur for the document to be declassified. It is not “at will” declassification by the President.
This is a really big deal, not just because of what it contains, but because it resolves a nasty question about classification EOs and the extent to which they bind upwards as well as downwards in the executive branch heirarchy. Here, document 19 side-steps the question. This document is classified
by statute.
Kari..no wonder all her former newsroom colleagues here in Phoenix cant stand her 
