Discussion of information not subject to classification (see Classified evidence in a court martial):
Certain information is not subject to classification. This can be very important in certain trials involving classified information, because the government may wish to stop certain information from being disseminated even though it cannot be classified. This information is often of a nature that would harm the United State’s image or interests, but is not a threat to national security. therefore, information cannot be classified in order to:
“(1) Conceal violations of law, inefficiency, or administrative error;
(2) Prevent embarrassment to a person, organization, or agency;
(3) Restrain competition; or
(4) Prevent or delay the release of information that does not require classification in the interest of national security”
Moreover, scientific information cannot be classified unless it clearly relates to national security and information cannot be reclassified once it has been declassified and properly released by a department with the authority to do so. These categories of unclassifiable information will often be the basis for classification reviews. Information improperly classified in order to protect the government’s interests is very susceptible to being the basis for greymail because the defendant will be able to have the information released, following the procedure we will outline below.
Sec. 1.8 of EO 12958