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Classified Right Outta Mar-a-Lago
What is a classified document? Trump seems to have lots of them, and the FBI sure wants them back.
In the wake of my first book critical of the State Department’s Iraq Reconstruction program, Diplomatic Security began a deep dive into my life in an attempt to find something over which to prosecute me. A colleague inadvertently passed on a bit of personnel gossip via his official email to my Yahoo! account, and the chase was on.
Diplomatic Security claimed I was in possession of “classified” material at home and referred my case to the Justice Department. The email in question was simply labeled “For Official Use Only,” (FOUO) a standard tag then automatically applied to all email sent by State in the unclassified system (a wholly separate email system existed for true classified — Confidential, Secret, Top Secret — messages.) FOUO was a non-standard “classification” made up by State and was being used to pin me against the wall and force me to resign under threat of prosecution. Luckily someone familiar with classification law at the Department of Justice prevailed, and I was not charged. The so-called secret in the email, that a mutual friend thought someone’s boss was a jerk, stays safe with me to this day.
The classification system for national security documents, while designed to identify documents to protect from people without the proper clearances, including foreign intelligence officers, has been often misused over the decades. It is very easy to slap a classified label on a document — persons using the State Department’s classified email system must classify what they write as either Confidential, Secret or Top Secret. If the document does not fit those categories it does not belong on the “class system” to begin with, though this is often misused as well. State workers who use the class system almost exclusively for their work might pass on a lunch invitation via the same system to avoid jumping from computer to computer.
Many documents correctly classified on creation, such as a military convoy movement time, lose their secretness within a few hours after everyone sees the convoy rumbling down the road. The classified bit was knowing in advance the convoy would depart a certain place at a certain time and after that passed, meh. Lastly, documents are often over classified for ego purposes, the sender feeling more important if his pet project is labeled Secret as opposed to FOUO or simply left unclassified. That all said, some documents deserve their classification and more, particularly those which reveal sources and methods, say the name of our agent deep inside Putin’s inner circle. Stuff like that is rarely ever even put into writing; if the president wants to know he is usually orally briefed.
Classification can also be misused in other ways, say to “hide” a document from future Freedom of Information Act searches and delay its release. Important people like to think they do important things and rightly or wrongly most of what the president or the Secretary of State touches ends up classified at some level. Over classification thus plagues the government, slowing down the legitimate transfer of information.
Except for the president, once classified it is very hard to unclassify or downgrade a document not subject to automatic declassification. Anyone can create a classified document by slapping the word Secret on it, but very few people can later take that document and change it to unclassified. The assumption is the original classifier was correct. The biggest exception of them all is the president himself, who holds the authority to change or declassify documents. This is not done willy-nilly; there is a process to follow which leaves a decision trail and usually includes some sort of consultation with the organization (State, CIA, DOD) which originated the document. The president cannot wave his hand over a storage unit of banker’s boxes and declassify the lot. Also, the president can unilaterally authorize officials from a foreign government to receive classified national security information. It is a very broad mandate, stemming from the fact that the entire classification system is based on Executive Orders more than law. Of course there are also the questions of “legal” and “sensible” that apply to all presidential actions but the latter is up to the voters, not the FBI, to decide.
Classified documents are supposed to be stored in classified containers (safes) or spaces (up to bank-like vaults.) All these rules about classified documents are supposedly taught to you as part of being issued a security clearance, though in practice people like the president or SecState have staffers who take care of producing, storing, and disposing of classified. If a breach occurs, the first question is not nyah nyah nyah you got caught! but what level of document was exposed and how was it exposed. Did you inadvertently leave it out on your desk instead of putting it into a safe inside the guarded embassy during lunch, or did you intentionally publish it to your Instagram? Was it an out-of-date means-little document or a current list of human assets in Ukraine? How much damage was done and what was the intent? Because there’s classified, and then there’s classified, bubby. Those maximum penalties bandied about by the media would typically require a significant exposure with intent to do harm.
People inside government and the military commit security violations all the time, almost all minor and inadvertent. Punishments can be as mild as being told not to do it again, up to loss of pay and forced time off to actual loss of job and even prison. But you gotta work at it to go much further than your own boss and the security team.
We don’t know exactly what documents were found at Mar-a-Lago, and we don’t know what classification they individually held or how they were stored. We do know Trump as president had the authority to declassify any of them, something which will figure into any defense he has to make. We also know the type of document and what it contains matter a lot in any penalty which may follow the FBI raid. We also know what Trump did with the documents is critical. If they never left a dark, locked basement storage area at Mar-a-Lago and were likely not reviewed by anyone since leaving the White House, punishment will be unlikely unless politics interferes.
Since millions of government employees have at one point handled and mishandled classified, there is plenty of precedent out there on action and punishment. For example, one of the most well-known cases is Sandy Berger, former national security adviser to President Bill Clinton, who stole classified documents from a secure reading room at the National Archives. He pleaded guilty in 2005 to a misdemeanor charge of unauthorized removal and retention of classified material (via the Espionage Act, the same charge the media says Trump may face) and was sentenced to probation, community service, and a fine. General David Petraeus received only probation for intentionally sending highly classified military documents via commercial email to his lover/biographer.
Former Secretary of State Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Yet Clinton was not prosecuted nor penalized. Any prosecution of Trump would need to address that precedent.
All this needs to be kept in mind when evaluating the FBI raid at Mar-a-Lago. The FBI, its reputation already in tatters post-Russiagate, might also have kept it in mind before deciding to stage another likely losing full-on assault against Trump.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Classified at State: Double-Standards, or No Standards at All?
My thanks to The Examiner, OPSEC Team, The Hill and Daily Kos for their articles noting the discrepancy between how the State Department treated my non-disclosure of classified materials on an unclassified system, and Hillary Clinton’s actual disclosure of classified materials on an unclassified system. There seem to be double-standards being applied.
Wait, what?My first book, We Meant Well
embarrassed the State Department by pointing out the failure of State’s efforts in Iraq. In retaliation for this, the State Department used its security bureaucracy infrastructure to push me into retirement after they failed to prosecute me, and then failed to fire me.
Here’s what they didIn October 2011 I wrote this blog post, which linked to an alleged State Department confidential cable on the Wikileaks site. The document in question was and still is online for all the world to see. State has never acknowledged publicly its authenticity or its classification.
I merely linked to it.
Based on that link, the State Department’s Bureau of Diplomatic Security conducted a full investigation into my ability to continue to hold the Top Secret security clearance I had held without incident for 23 years. They concluded I was no longer to be trusted.
In fact, they said:
The SUBJECT is me. SBU stands for Sensitive But Unclassified, a made-up level of classification the State Department routinely assigns to all of its unclassified information to allow it to withhold documents from journalists and others as required. DS/ICI/PR is the State Department Office of Diplomatic Security, Professional Responsibility Division.
The investigation into my supposed misdeeds around classified materials included Diplomatic Security running the “hacker” program WGET against this blog, and amassing “Screen shots collected by the DS Computer Threat Analysis Division (DS/CTAD) from the article ‘Let’s Watch Qaddafi Get Beaten and (Maybe) Sodomized’ published on WeMeantWell.com on 10/26/2011.” Agents also printed out nearly my entire blog to preserve a paper copy, apparently in case I deleted the files from my server. Hmm.
I was interviewed three times in depth by a team of security agents, who characterized my linking as “transferring [classified] information from Wikileaks.org” to my own, unclassified, blog. I learned later that Diplomatic Security had been monitoring my State Department computer to ensure I did not misuse it. Security also searched my official email back several years and interviewed my neighbors looking for, well, something to use against me.
It was a lot of effort by a busy organization over what, even if it had been as they portrayed it, a pretty minor matter.
Clinton v. Manning: Protecting Classified Information
And of course during the Bradley/Chelsea Manning trial, itself concerning State’s Secret level cables, Hillary Clinton was clear on her position: “I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.”
Others
I’ve focused here on my own situation not because it was important nationally, or out of bitterness (OK, maybe a little, I’m human) but primarily because it is the example I know most about.
But there are others.
The Intercept points out NSA whistleblower Tom Drake, for instance, faced years in prison, and ultimately had his career destroyed, based on the Obama DOJ’s claims that he “mishandled” classified information (it included information that was not formally classified at the time but was retroactively decreed to be such). Less than two weeks ago, “a Naval reservist was convicted and sentenced for mishandling classified military materials” despite no “evidence he intended to distribute them.” Last year, a Naval officer was convicted of mishandling classified information also in the absence of any intent to distribute it.
John Kiriakou was sent to prison in part for his alleged mishandling of a business card, unmarked as to classification, that the CIA claimed was sensitive. Robert Maclean, at TSA, lost his job because he revealed unclassified information that was later retroactively classified.
There are many examples.
What it means…You are welcome to say what you wish about the merits or lack thereof of how I was treated by the State Department when the issue was handling of classified information. This article is not to open an old can of worms. I retired from my 24 years at the State Department and that’s that as far as that’s concerned.
The point here instead is that State appears to have a sliding scale of how it sees possible security violations by its employees — Hillary Clinton and me, in this instance. Because while all this was happening with me in 2011, Clinton was running her own email system, unclassified in name but with classified materials in fact.
And when you have double standards, as everyone knows, you really have no standards at all.
BONUS: That photo’s of me, on my last day of work at State, wearing my ‘Free Bradley Manning’ T-shirt on campus. Manning, of course, is in jail for disclosing Secret-level information. I lost my job over purported confidential information. Hillary’s server contained above Top Secret information, the same level of information Edward Snowden is accused of disseminating.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Over-Classification at State
Over-classification in our government is real. Designed primarily to hide the actions of the peoples’ government from the people, federal agencies now routinely slap a classified label on just about everything; the Department of Defense recently classified a memo about over-classification. Obama even signed (albeit with his fingers crossed behind his back) the Reducing Over-Classification Act, which required various parts of the federal government to (you guessed it) reduce over-classification. As part of implementing this law, federal inspectors general are supposed to “evaluate” the classification policies of the organizations.
As a public service to inspectors general, may I suggest you take a look over at the State Department?
State, which about a year ago sought to fire me, in part, for “revealing” a document that was labeled Sensitive But Unclassified (SBU), snail-mailed me an SBU document. That document was a form letter, appropriately classified because, why not? Let’s be a touch civilly disobedient and have a look at it:
Like most of you (“the internet”) I have no security clearance. I am pretty sure my mail carrier does not have a security clearance, nor does the youngster at my home who first opened the mail yet there, all pink and naked, lies an actual SBU document. Now of course it is a form letter about income taxes with a rubber stamp signature, but dammit, don’t your eyes burn? Now look away! FYI, my financial information, included in the envelope, did not carry any classification. The youngster has been appropriately punished.
Of course the whole concept of “Sensitive But Unclassified/SBU” is a bit of a joke; technically no such category of actual US Government classification actually exists. The State Department and others just sort of made up “SBU” after 9/11 in an attempt to include basically every document and email created inside Foggy Bottom in some sort of restricted category. In a report prepared by the Library of Congress, the authors wrote “Although there is growing concern in the post 9/11 world that guidelines for the protection of SBU are needed, a uniform legal definition or set of procedures applicable to all Federal government agencies does not now exist. Regulations are reported to be under development in the Office of Management and Budget and the Department of Homeland Security.”
State itself self-defines SBU as “information which warrants a degree of protection and administrative control that meets the criteria for exemption from public disclosure.”
So all you inspectors general out there, can you tell we people out here exactly what in the State Department’s form letter about taxes “warrants a degree of protection and administrative control that meets the criteria for exemption from public disclosure”? ‘Cause if you can’t find anything, then maybe State is just a little bit heavy-handed with its classification policies.
At least I hope so. Otherwise, somebody at State just sorta leaked an SBU document into the mail system. OH NO!
BONUS: It is apparently of no interest to law enforcement when someone high up in the State Department leaks an actual Secret document to the media, at least when said leak was designed to benefit the Department.
BONUS BONUS: Since State willfully sent a classified document to me, knowing I have this blog, were they hoping I’d expose it here? Is the State Department whistleblowing on itself in some odd national security act of autoeroticism?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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