https://casetext.com/case/ny-times-v...ligence-agency
An interested read if you have time to learn something. In short, Trump tweeted about the existence generally of covert programs in Syria. The Times sought information claiming that Trump implicitly declassified the information by speaking publicly about it. His DoJ claimed no process to declassify was undertaken and therefore there was no declassification. The appeals court agreed, generally acknowledging that declassification is a process and without it, there is no declassification. Now, not exactly the same, but I’m sure this will come up if this goes to court. Particularly since this was Trump’s DoJ position.
For the folks who can’t read more than a couple of paragraphs, here’s a short snippet of the opinion.
To make its declassification claim, the Times essentially recasts its "official acknowledgement" claim as one of "inferred declassification." To prevail in any claim of declassification, inferred or otherwise, the Times's must show: first, that President Trump's statements are sufficiently specific; and second, that such statements subsequently triggered actual declassification. The first is easily disposed of because we have already found that the statements are insufficiently specific to quell any "lingering doubts" about what they reference. The second requires further discussion.
Declassification cannot occur unless designated officials follow specified procedures. Moreover, courts cannot "simply assume, over the well-documented and specific affidavits of the CIA to the contrary," that disclosure is required simply because the information has already been made public. The Shiner affidavits, in addition to justifying the two FOIA exemptions, expressly stated that no declassification procedures had been followed with respect to any documents pertaining to the alleged covert program. Moreover, the Times cites no authority that stands for the proposition that the President can inadvertently declassify information and we are aware of none. Because declassification, even by the President, must follow established procedures, that argument fails.
As explained above, Executive order 13,526 established the detailed process through which secret information can be appropriately declassified.
Phillippi v. CIA , 655 F.2d 1325, 1330 (D.C. Cir. 1981). The Times is also concerned that "unless the President declassifies information by formal means or with magic words – or the circumstances are otherwise "exceptional" – a court can never infer declassification[.]" Such concerns are mitigated, however, by the "official acknowledgement" doctrine. If the President publicly discloses the existence of a covert program within the Wilson framework, then there would be no need for courts to "infer declassification."
