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Marcy Wheeler, in her emptywheel Twitter account, recently tweeted:

I addressed this question in this post. No, Cannon does not need a clearance. Her access comes via dint of her responsibilities, just like Members of Congress who need to access classified information do. They ALSO do not get clearances.

But what is the exact legal basis for this? Clearly it can't be the case that every federal judge has the right to see all classified material no matter what classification it has (eg Top Secret/SCI etc.)

1
  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Commented Jun 17, 2023 at 12:28

4 Answers 4

36

The simple answer is the procedures adopted under the Classified Information Procedures Act. Under Personnel Security, they say that:

No person appointed by the court or designated for service therein will be given access to any classified information in the custody of the court, unless such person has received the appropriate security clearance and unless access to such information is necessary for the performance of an official function. A security clearance for justices and other Article III judges is not required.

The true answer is a bit more involved. Article III judges (essentially meaning life-tenured federal judges) are constitutional officers. Their office and its basic role is laid out by the Constitution. On the other hand, security clearances are an administrative thing under the basically unreviewable control of the executive branch. It’s not appropriate to deny a constitutional officer access to information they need to carry out their constitutional role unless the executive branch agrees that they’re suitable.

1
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    – Dale M
    Commented Jun 16, 2023 at 21:36
13

"Secret" and "Top Secret" are defined by the Government Security Classification (GSC), and certain senior judges are cleared, just like everyone else who meets the following criteria, to access the material or the assets in a process called Developed Vetting (DV):

Individuals who are to be employed in posts which:

  • require them to have frequent and uncontrolled access to TOP SECRET assets or require any access to TOP SECRET codeword material

And for individuals who:

  • while not in such posts, will be in a position to directly or indirectly bring about the same degree of damage.

  • require frequent and uncontrolled access to Category I nuclear material

  • require access to certain levels of classified material originating from another country or international organisation.

Although Article 6 of The European Convention on Human Rights (ECHR), incorporated in to law by the Human Rights Act 1998, states:

... everyone is entitled to a fair and public hearing ... [and] Judgment shall be pronounced publicly ...

To preserve secrecy and to exclude or restrict access to those not DV cleared, Article 6 empowers the judge to hold some, or very rarely all, of the trial in camera as...

...the press and public may be excluded from all or part of the trial in the interest of [...] national security

This is supplemented by Rule 6.4 of the Criminal Procedure Rules:

This rule applies where the court can—

(a) impose a restriction on—

  • (i) reporting what takes place at a public hearing, or

  • (ii) public access to what otherwise would be a public hearing; or

(b) withhold information from the public during a public hearing.


Although tagged , I have answered in line with: we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]" from the Help centre

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  • 1
    So is the claim "No, Cannon does not need a clearance. Her access comes via dint of her responsibilities" false? Commented Jun 14, 2023 at 23:53
  • 10
    @Acccumulation No, this answer is for the UK and Cannon is a US judge.
    – cpast
    Commented Jun 15, 2023 at 0:35
7

This is probably a reference to 50 USC 3163:

Except as otherwise specifically provided, the provisions of this subchapter shall not apply to the President and Vice President, Members of the Congress, Justices of the Supreme Court, and Federal judges appointed by the President.

"This subchapter" is 50 USC Chapter 44 Subchapter VI, encompassing sections 3161-3164. Especially Section 3161 which imposes the rule that access to classified information should only be granted to those who have been cleared based on an "appropriate background investigation". So by Section 3163, judges and members of Congress do not require a clearance in order to access such information.

That isn't the same as having a right to see all such information. A federal judge can't, as far as I know, arbitrarily demand access to some random classified document. But when, for instance, classified documents appear as evidence in cases they preside over, lacking a clearance isn't a hindrance to access.

4

Only one of the other answers even brushes against this part of the question, so I'll focus on that, since it's really critical to fully answering the whole question.

Clearly it can't be the case that every federal judge has the right to see all classified material no matter what classification it has (eg Top Secret/SCI etc.)

No, there's this idea of "need to know" where it doesn't matter what classification someone is cleared to see, if they don't have a specific and real need to see the information, they won't get access to it.

A determination within the executive branch in accordance with directives issued pursuant to this order that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.

https://csrc.nist.gov/glossary/term/need_to_know

The above definition comes from a technology standpoint, but it's SOP throughout the whole US government, including the military.

Another way to say it is "This principle states that a user shall only have access to the information that their job function requires, regardless of their security clearance level or other approvals."

https://techcommunity.microsoft.com/t5/azure-sql-blog/security-the-need-to-know-principle/ba-p/2112393

The reason for that is risk management. "When access to covered data is broader than what is required for legitimate purposes, there is unnecessary risk of an attacker gaining access to the data."

https://security.berkeley.edu/need-know-access-control-guideline

Generally speaking, a judge doesn't need to know all data covered by security clearances, so they don't get access to all that data. So, no, they can't just "walk up" to a facility with secured documents and demand to see anything they want. However, if there is a requirement for them to access classified data, they can get access through the processes and from the legal rules described by the other answers.

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