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What, exactly, is "classified information?"
The Hitchhikers Guide to the Mar-a-Lago Documents
It is, of course, all over the news. It has been for a few years now. Beginning with Hillary Clinton’s email server, continuing with former FBI Director James Comey’s memos, the transcript of President Donald Trump’s phone call with Volodymyr Zelensky, and now to some 300 documents recovered from Donald Trump’s Mara-a-Lago residence.1 It looks more and more like the story will revolve around classification - and specifically around “sources and methods.”
I will admit up front: I am sympathetic to the former President. But I am even more sympathetic to his voters because I understand why they (we) voted for him. No one has done a better job explaining this than Peggy Noonan - all the way back in February 2016, well before Trump secured the Republican nomination.
My goal here is less to argue for the former President than to educate the reader about the workings of the classification system and the expectations of those who hold clearances (I have a Top Secret clearance, but without the SCI designation - I’ll explain below the differences and significance of having the SCI designation).
But I’ll also be honest with my dismay at both “too clever by half” parsing of the language on the part of the government, and an abject lack of curiosity on the part of the media. As for the latter, the problem is well beyond bias… They do not even know how to ask the right questions, and lack the self-awareness to realize and remedy their own ignorance. It really is discouraging…
So anyway, I’ll plow ahead. This is a long one, though. I’ll make seven main points:
Information is not classified because it is marked; it is marked because it is classified
This principle goes to the heart of the matter. Let’s consider the transcript of Trump’s call with Zelensky. National Security staff will be in the Situation Room listening in on a call like this and taking notes. Every single one of them understands: the nature of the call means their notes are classified at least to the SECRET level before the ink even dries on the page.
Understanding this, probably more than anything else, is essential if the average reader want to understand the contours of the controversies. The same situation was true of emails on Clinton’s email server. It was true when FBI Director James Comey drafted memos from his conversations with President Trump. The positions held by these two men, their access to the nation’s most sensitive information, all mean Comey’s original notes were classified before the ink was even dry.
It should not matter whether the ink came from a pen held by a low level White House National Security staffer or the Director of the FBI himself. It is very discouraging to say that, in some circles, is apparently does.
There are only three levels of classification: CONFIDENTIAL (the lowest); SECRET; and TOP SECRET. According to the Code of Federal Regulations, each is described as follows:
TOP SECRET. Information may be classified “Top Secret” if its unauthorized disclosure could reasonably be expected to cause exceptionally grave damage to the national security. This classification should be used with the utmost restraint. Examples of “exceptionally grave damage” include armed hostilities against the United States or its allies; disruption of foreign relations vitally affecting the national security; the compromise of vital national defense plans or complex cryptologic and communications intelligence systems; the revelation of sensitive intelligence operations; and the disclosure of scientific or technological developments vital to national security.
SECRET. Information may be classified “Secret” if its unauthorized disclosure could reasonably be expected to cause serious damage to the national security. This classification should be used sparingly. Examples of “serious damage” include disruption of foreign relations significantly affecting the national security; significant impairment of a program or policy directly related to the national security; revelation of significant military plans or intelligence operations; and compromise of significant scientific or technological developments relating to national security.
CONFIDENTIAL. Information may be classified “Confidential” if its unauthorized disclosure could reasonably be expected to cause damage to the national security.
Except as otherwise provided by statute, no other terms shall be used to identify classified information. Terms or phrases such as “For Official Use Only” or “Limited Official Use” shall not be used to identify national security information. No other term or phrase shall be used in conjunction with these national security information designations, such as “Secret Sensitive” or “Agency Confidential” to identify national security information.
In the digital age “information” is created or originated in an incredibly wide range of ways. It is simply impossible to rely on markings or labels to provide the needed protection. As a result, every person who is granted a clearance is trained on how to recognize information that possibly should be classified - even if there are no markings. It is expected of every single person with a clearance that when encountering information without proper protection (e.g. something found on the Internet), they know to whom it should be reported, and they do so… “If you see something, say something…” The entire system depends on the sound judgment of its participants.
SCI - Sensitive Compartmented Information - is a designation, not a classification
All you have to do is Google ‘SCI classification’ and this comes up first. The SCI designation indicates an additional level of “access controls” - which are documentation and configuration requirements in an information technology system which regulate who can access what information. Additionally, it reflects a personnel designation indicating the individual has undergone additional clearance adjudication authorizing them to be “read in” on information requiring this additional protection. In most cases, someone who has a TOP SECRET clearance will be otherwise eligible for the SCI designation - if there is a compelling reason (a “need to know”) - but there is a separate adjudication for this designation.
A document can be marked TOP SECRET, but with the marking struck through and a notice of declassification added
This is where I think the biggest question lies. Is the claim these 300 documents are marked SECRET or TOP SECRET a careful but utterly misleading and deceptive parsing of the language? To see what I mean, let’s consider the transcript of the phone call between President Trump and Volodymyr Zelensky of the Ukraine.
Before discussing how markings are struck through, let me explain a few of the markings from this transcript. Like SCI, these are designations, not classifications.
ORCON: This means “Originator Controlled.” This means the information cannot be distributed outside the originating agency (in this case the Office of the President) without consulting with a point of contact first. (As an interesting example of how easy it is to miss something in this world of markings, the transcript is missing otherwise required point-of-contact information for the originating agency.)
NOFORN: This means “No Foreign” dissemination. In one instance, the U.S. collaborates with what are called its “Five Eye” partners (Canada, Australia, New Zealand, and the UK). These are sometimes also called our “Commonwealth Partners.” In the course of originating information - and this is especially true in cybersecurity - we make information otherwise classified SECRET available to our Five Eye partners. If the information requires protection at the SECRET level, but is otherwise authorized to be shared with these partners, the document will be stamped SECRET//REL TO FVEY rather than SECRET//NOFORN.
As an example, a document might present information about an emerging cybersecurity threat. Portions (paragraphs) in the document which describe the nature of the threat will likely be “portion marked” S//REL - shorthand for SECRET//REL TO FVEY. The information requires protection at the SECRET level (we don’t want the bad guys knowing we see them), but is shareable among our Commonwealth partners, but only via approved secure channels. Other paragraphs might discuss adversarial nation states involved in the threat or parts of our infrastructure which need immediate attention. These details will almost certainly be marked S//NF (shorthand for SECRET//NOFORN). The marking at the top of the document, then, is considered the “high watermark” - or the the most restrictive of the portion marks. In order to share the information with Five Eye partners, all S//NF paragraphs will be deleted and a new document created - this one with the SECRET//REL TO FVEY marking.
So let's look again at the transcript. The original assumption is that it requires protection at the SECRET level. Any distribution must be done by the originating agency (or otherwise via consultation with their point of contact), and it is specifically excluded from being shared with foreign allies like our Five Eye partners. But all of this is struck through.
Any person who does this - strikes through or removes classification markings - and who is otherwise not authorized to do so - has committed a serious crime. Hillary’s emails are an example. From Reuters:
[O]n 110 separate occasions Clinton and/or one of her correspondents had to have retyped – or copied and pasted – information from a classified format; there is no other method to transfer data. Classified markings (i.e., “Top Secret”) were removed in the process (though Comey did say some marked classified emails were also found on the server).
Personally, I take very seriously the trust placed in me by my government as one holding a National Security clearance. I cannot - and will not claim to - speak for anyone but myself when I say this was, by far, the most egregious thing about the whole email scandal. Accidental “spillage” of small amounts of classified information onto a system at a lower than required level of protection happens all the time. If documented and handled correctly, they usually do not result in anything beyond the equivalent of being “written up.” Yet this sort of thing? If any normal person working in the National Security space were to do this, losing their clearance would be the absolute least of their worries. They would be out of a clearance, out of a job, and promptly into an orange jumpsuit to be perp-walked in handcuffs and ankle shackles.
As I will discuss further below, the manner in which a person is authorized as an Original Classifying Authority is spelled out in an Executive Order. This means that the authority to do this - to declassify a document and strike through its markings - originates with the Executive... That would be POTUS. We can argue about whether Trump’s unilateral declassifying of these 300 documents before leaving office might be considered “reckless” or “dangerous.” But what cannot be argued is that it was a crime. It cannot possibly be a crime for the Executive to exercise his executive authority as the ultimate Classifying Authority.
For the authoritative, final answer on the use of classification markings, see here:
The public interest must be considered in classification decisions
The Executive Order governing classification decisions expressly recommends declassifying information when “...the need to protect such information may be outweighed by the public interest in disclosure of the information.” (Section 1.2(b)(1)(d))
This part is quite amusing: Mainstream media outlets are at the forefront of arguing for the release of the affidavit filed in support of the Mar-a-Lago search warrant as being in the “public interest.” We’ll see tomorrow how this plays out. This affidavit must articulate some theory of a crime either having been committed, currently in the process of being committed, or some reasonable suspicion one might be committed. As information is being leaked by the DOJ, it appears this whole affair revolves around the claim that Trump was improperly in possession of classified information. As noted above, there is simply no possible theory of a crime to support a search warrant if we are talking about documents with classification markings containing information the President - when in office - declassified.
As for the media, they are claiming the predicate for the investigation and raid is of such public interest as to warrant release of the affidavit. Consider what happens if we learn the information supposedly classified is related to Russia-gate and is exculpatory - meaning it exonerates the former President. Now the debate will be about whether the public interest in declassifying that information outweighs the need to protect it. How will the media possibly argue the information should remain classified while avoiding the naked contradiction?
Was our “Five Eye” partnership corruptly weaponized for political purposes?
My review above about the difference between NOFORN and REL TO FVEY is important here. We already know the broad contours of the involvement of UK and Australian government personnel in the Russia-gate scandal. Will we learn that the Five Eye partnership itself was weaponized against a candidate for President, and then against that candidate while serving as President? Here is why it is important to understand the reason for a distribution restriction like SCI. Information which is designated TOP SECRET//SCI will likely include information about “sources and methods.” Were Five Eye sources and methods used so egregiously and corruptly as to threaten the viability of the partnership itself should it become known?
If this is the case, it is not hard to understand the Intelligence Community’s grave concerns. But that, then, leads to two conclusions: a) The grave harm to our national security that could come from a crippling of the Five Eye partnership is also a compelling case for the public’s interest in declassifying the information; and b) the use of classifying authorities here is essentially an effort to avoid revelation of likely illegal or otherwise embarrassing conduct. Consider Section 1.7 (a) (1) and (2) of EO 13526:
Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(Other provisions follow.)
There is simply no way around this... and it brings up my next question:
If these documents contain information related to Russia-gate, does that not then make them attorney/client privileged as claimed by the President?
Here we have to bring the complaint in Trump v Clinton into the discussion. I am including it here in full because it - probably more than anything else - must be read in its entirely to understand the rest of this picture.
The Magistrate Judge who approved the Mar-a-Lago search warrant recused himself from this very lawsuit. The suit has been filed under a law called “RICO” - the "Racketeer Influenced and Corrupt Organizations Act." Take note of the named defendants. It's a who's who of the top of the Ruling Class food chain. It is important to note that these are not claims being made on TV by an attorney; these are claims presented by the attorneys to the Court in a formal filing. To knowingly make false statements on a complaint such as this not only puts President Trump in jeopardy, but his lawyers as well. And the claims outlined here are simply devastating.
What relationship, if any, exists between the information in these 300 documents and the information on which the President’s lawyers intend to rely on when making their RICO case? If that line is direct, AND if these documents reveal the weaponization of the Five Eye partnership, that information becomes part of the public record when it is produced in the RICO suit. The are now only two possible options for the DOJ, FBI, and IC: Convince a judge to issue a search warrant based on an impossible theory of a crime and confiscate the documents, or have to face the music.
We have to ask again - in light of Section 1.7(a)(1) and (2) of EO 13526 - does not the public’s interest in how the DOJ, FBI, and IC may have jeopardized a program crucial to the national security of the United States overcome the rationales for attempting to keep the related information secret? Is this not also an effort at avoiding embarrassment over the underlying reasons for having done so - a capricious, arbitrary, political animus toward Mr. Trump?
Classification of information is first about protecting the information: “But Her Emails”
After the Mar-a-Lago raid, it was interesting how quickly Hillary was on social media wearing a hat with “But Her Emails” on it. It is almost like her team knew this was coming and wanted to inoculate her against the obvious comparison. It is also quite amusing... Is this the Democrat version of the red MAGA hat? Really? Has the lack of self-awareness really gotten this bad?
It is good that we have an opportunity to discuss the difference between classification and distribution. Again, there are only three levels of classification: Confidential, Secret, and Top Secret, and each requires different levels of protection. Distribution restrictions can be added as described above. But what is always - everywhere and always - true is that information is not classified because it is marked; it is marked because it requires protection.
This is why Clinton’s claim to never have sent any email “marked classified” was so egregious. Even the most junior person with a clearance could see right through this positively Clintonian parsing of the language. (It makes Bill’s “it depends on what the meaning of the word ‘is’ is...” so pedestrian.) The information found on her email server was unambiguously classified - regardless of whether it was marked or had been marked with the markings removed.
So if the Clinton camp wants to draw a comparison, it will be between information being sent around via utterly unprotected emails and residing on an otherwise unprotected server on the public Internet - or boxes of paper documents in a storage room with multiple locks (one even requested by the FBI itself) inside a building defended at various levels by the U.S. Secret Service. There is a particular kind of lock required for the storage of classified information in an otherwise unclassified space - known as an “X-09 combination lock.” If this is what was requested by the FBI, and the Trump team complied, this involves some significant retrofitting of the door itself, and would bring the storage area up to standards otherwise required of private places with a “facility security clearance.”
So, “...but her emails?” That’s like “...but his (Comey’s) memos...” Much like notes from the Ukraine call - notes from a conversation between a sitting president and a current FBI director will be classified before the ink is even dry... and there is no way Comey did not know this when he passed them off to a friend to leak them to the New York Times in order - by his own testimony - to provoke the appointment of a Special Prosecutor after his firing.
If the claims in Trump v Clinton are true, and if they are substantiated by these 300 documents seized from Mara-a-Lago, there is simply no way out now for the DOJ and FBI, and to a lesser extent the IC if the Five Eye partnership is implicated. And the Clinton campaign’s cheeky misdirection will only heap further deserved condemnation on the whole lot of them.
Some were reportedly handed over voluntarily. The rest were later seized in the raid.