The Issue with Classification

Source: Executive Order 13526.

Confusion over security classification persists here in the Forum. Some basic concepts may deliver some clarity.

It is important to realize that information may be sensitive with respect to national security whether or not it is classified. By the same token, information that is classified may or may not be sensitive with respect to national security.

The whole point of the classification system is to protect sensitive information, but whether information requires or deserves protection is beyond the scope of the operation of the classification system.

This distinction between information content and its classification makes it easier to understand how the classification system works. Once a classification authority determines that information requires protection, the next step is to determine to what extent it is sensitive. There are three sensitivity ratings:

  • Low: unauthorized disclosure reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe (Confidential)
  • Medium: unauthorized disclosure reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe (Secret)
  • High: unauthorized disclosure reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe (Top Secret)

Note that disclosure of sensitive information may be authorized under a number of circumstances, regardless of its sensitivity level. For example, the classification authority may judge that sensitive information may be disclosed in the public interest. Also, information that has been classified for more than 10 years automatically becomes eligible for disclosure unless steps are taken to extend its classification for up to 25 years.

Note, too, that for sensitive information to be given a classification, the classification authority must be able to identify or describe the damage to national security that would occur should unauthorized disclosure occur. Should the identified or described damage cease to be a risk, no damage to national security by unauthorized disclosure can occur.

It is not unusual for information that once was sensitive to be overtaken by events. Should unauthorized disclosure of classified information that is no longer sensitive occur, there is little reason to regard the disclosure as improper, even if it was unauthorized.

Unclassified information also may sometimes become sensitive and require protection. For example, when several items of unclassified, individually non-sensitive information are combined, the resulting whole may convey concepts that are potentially sensitive with respect to national security.

In the end, the issue with classification is not classification itself, but national security. Things that once were sensitive with respect to national security can become no longer sensitive, and things that never were sensitive can become sensitive. Both can occur regardless of classification status.

We must judge Donald Trump’s possession of classified material at Mar-a-Lago in light of all the above considerations. All presidents leave office with sensitive documents. Presumptively, though not by statute (as far as I know), a former president has no authority to disclose sensitive information related to national security. But so long as a former president does not commit an unauthorized disclosure, there can be no impact on national security. The classification status of documents in an ex-president’s possession is quite irrelevant when they remain undisclosed.

27 thoughts on “The Issue with Classification

  1. Fine, but classification is not at issue for any of the laws cited in the warrant.

    The less serious issue is the mishandling of Presidential papers. They belong to the Archives but Trump, for reasons of his own, says “They’re mine.” Some of the documents may be debatable, but the law gives the authority to decide to the Archivist and not to the ex-President. For example, Trump may say that the handwritten note from Obama is his personal property but the Archivist may say that it is a historical document that belongs in the Archives. You do not settle such differences by hiding or withholding disputed documents. That is pure childishness. And illegal.

    The more serious issue is whatever NDI was taken and stored insecurely. Here the government has a problem. Kind of a Catch-22. They want to prosecute the illegal handling of such information but do not want to disclose it. That is the nature of NDI.

    Liked by 1 person

    1. Executive Order 13526 doesn’t use the term National Defense Information (NDI) but cites several instances of NDI that may be considered for classification (see Section 1.4).

      18 U.S.C. § 793, cited in the Mar-a-Lago search warrant, prohibits the misuse of classified information, including NDI.

      So, it doesn’t make sense to claim that classification is not at issue in the Mar-a-Lago raid.

      Nor does it make sense to claim that the mishandling of presidential papers is at issue, because (a) the Presidential Records Act (PRA) is not cited in the search warrant and (b) the National Archives and Records Administration (NARA) has made no such claim.

      Finally, it may be true that “NDI was taken and stored insecurely” at Mar-a-Lago, a violation of 8 U.S.C. § 793, but this remains to be established and various elements of EO 13526 apply:

      • A sitting president is the top level (supreme) classification authority.
      • A sitting president can authorize the disclosure of information that is sensitive to national security, regardless of its classification status.

      • The classification status of sensitive information is secondary to the impact on national security that disclosure would bring.

      I see no “Catch-22” in prosecuting the illegal handling of NDI, since the factual existence of NDI can be established without disclosure of its content.

      Like

      1. Trump has not been the sitting President since January 20, 2021. His attempt to declassify material the day before was improper and impossible to be met by those responsible for following up on that “order”.

        …”since the factual existence of NDI can be established without disclosure of its content.”

        I await with baited breath what kind of spinning pretzel BS you and Don will come up with if it is proven that TFG illegally handled NDI.

        Liked by 1 person

        1. Where exactly do you get this claim that Trump went on some declassification spree the day before he left office? His standing order had been in place for a long time before that and actually has merit.
          https://www.google.com/amp/s/www.politico.com/amp/news/2022/08/15/could-trump-declassify-at-whim-and-does-it-get-him-off-the-hook-00052054
          As much as you people have been barking abt classified material, it is funny to see you backing off with the typical but but but there’s more…

          Like

          1. “His standing order had been in place for a long time before that and actually has merit.”

            There is no evidence of such a “standing order.” The concept is ludicrous on its face.

            Liked by 2 people

          2. Your comment makes little no no sense. What exactly are you talking about with …”but but bit there’s more”….

            As far as standing orders concerning classified material, it just doesn’t work that way. You have the experience to know that, but choose to ignore it because it makes your BOY look like a criminal. Which he may very well be.

            Like

        2. RE: “His attempt to declassify material the day before was improper and impossible to be met by those responsible for following up on that ‘order’.”

          Trump’s order was legal and proper. The Biden administration could have followed through on it.

          Like

          1. “The Biden administration could have followed through on it.”

            Yes, they could have but chose not to. There was no national security reason to declassify any of it. Purely political. Not a sound or even legal reason for classification decisions.

            Liked by 1 person

          2. E: “There was no national security reason to declassify any of it.”

            I can’t figure out what that statement even means. A “national security reason” might apply to classifying sensitive information, but I can’t imagine how such a thing could apply to declassifying sensitive information.

            Trump’s last order concerned a second iteration of declassification reviews and final preparation for public release (with redactions) of Crossfire Hurricane documents. The only reason for cancelling the order must have been to prevent the public release. The Biden administration owes us an explanation for its decision.

            Like

          3. “but I can’t imagine how such a thing could apply to declassifying sensitive information.”

            Then you lack imagination. Information should be declassified when it is no longer a danger to national security. Not because some dunce thinks it will help him politically to pretend he wants it declassified.

            Liked by 1 person

          4. There is no need to find a reason to declassify the material. What would be needed would have been a reason to hide it from the public in the first place.

            Lots of things are classified for improper reasons. mostly to hide the incompetence and malfeasance of those who classify it.

            Like

          5. “What would be needed would have been a reason to hide it from the public in the first place”

            The only legitimate reason is to protect national security. That reason also involves sources and methods. If we know something about how Russian agents have turned an American politician, it would be important to hide the fact that we know and to hide how we know.

            Liked by 1 person

          6. ” The Biden administration could have followed through on it.”

            And just like EO’s that incoming administrations disagree with, chose not to.

            There is nothing insidious about any of it. Except to the fevered minds of Trump loyalists who hate this country so much they will go to every end to see it demolished on the whims of a reality show, twice impeached, twice losing (Popular vote), EX-President.

            Which is more important to you: Loyalty to a man, or loyalty to the Constitution and the laws of this country?

            Liked by 2 people

          7. RE: “There is nothing insidious about any of it.”

            You claimed there was something insidious about Trump’s final declassification/release order for the Crossfire Hurricane documents. There wasn’t.

            So who is the one making claims of insidiousness?

            Like

          8. I did NOT claim his order insidious. Nor did I say anything about his classification order directly affecting CH documents. I said it was too onerous to issue on his last day of office.

            Like

      2. “18 U.S.C. § 793, cited in the Mar-a-Lago search warrant, prohibits the misuse of classified information, including NDI. So, it doesn’t make sense to claim that classification is not at issue in the Mar-a-Lago raid.”

        That is a nonsense argument. 18 U.S.C. § 793 makes no reference of any kind to the classification system. That some of the material it refers to may well be classified is irrelevant.

        https://www.law.cornell.edu/uscode/text/18/793

        Say, for illustration, there is a document seized from Trump that reveals how many digits are in the President’s nuclear code. It is marked classified. Trump cannot escape the consequences of mishandling it by saying “I declassified it when I took it.” It’s classification status does not matter.

        Liked by 2 people

        1. RE: “That is a nonsense argument. 18 U.S.C. § 793 makes no reference of any kind to the classification system. That some of the material it refers to may well be classified is irrelevant.”

          Gee, and my post went to such trouble to explain the important distinction between sensitive information and classified information.

          Like

          1. “Gee, and my post went to such trouble to explain the important distinction between sensitive information and classified information.”

            There was nothing wrong with your original post. But it was largely irrelevant to the current legal proceedings because the laws violated do not rely in any way on the classification status of information.

            Liked by 2 people

          2. RE: “the laws violated do not rely in any way on the classification status of information”

            We don’t know that any laws were violated, but the one you’re hanging your hat on (793) applies to a particular category of information; that is, “information respecting the national defense.” As my explanation of EO 13526 makes clear, it is the content of information, not its classification status, that raises national security concerns.

            So, you are correct that enforcement of 793 does not rely on classification status, but — as I carefully explained — nothing does. The entire edifice erected to protect sensitive information is predicated on the content of that information.

            What you call “NDI” in your criticism of the post amounts to a distinction without a difference.

            Like

          3. “We don’t know that any laws were violated . . .”

            We do know that it is more likely than not that laws were violated.

            As for all your tap dancing about classification – it remains irrelevant as far as those laws are concerned. Don’t try to pretend to be teaching me that. I have been saying it since the warrant was made public.

            Liked by 1 person

          4. RE: “We do know that it is more likely than not that laws were violated.”

            No we don’t. We only know that the White House believed there was probable cause to investigate the possibility of legal violations.

            Like

          5. “No we don’t. We only know that the White House believed there was probable cause to investigate the possibility of legal violations.”

            That is just plain dopey.

            First and foremost the White House has nothing to do with it. The decision was made by the Attorney General.

            Secondly, the definition of “probable cause” is what I stated. It is more likely than not that crimes have been committed. The judge reviewed the evidence so far and agreed. And – to a certainty – there is more evidence now than before the search.

            Liked by 2 people

          6. RE: “First and foremost the White House has nothing to do with it. The decision was made by the Attorney General.”

            I take it you did not read the NARA letter Mr. Rothman wrote about yesterday. Here’s a link:

            Click to access wall-letter-to-evan-corcoran-re-trump-boxes-05.10.2022.pdf

            The White House was directly involved in the events leading up to the Mar-a-Lago raid.

            RE: “Secondly, the definition of ‘probable cause’ is what I stated.”

            Nope. Here’s how Wikipedia defines it: “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true”.”

            Notice the phrase, “justify a prudent and cautious person’s belief.” This is important, because a cautious person’s belief can be dead wrong.

            Like

          7. “I take it you did not read the NARA letter Mr. Rothman wrote about yesterday.”

            I take it, that if you read it, you did not understand it. Biden had nothing to do with the decision to seek a search warrant and that letter did not say that he did. In fact, it was dated MONTHS before the decision was taken by the AG.

            Like

      3. “Nor does it make sense to claim that the mishandling of presidential papers”

        I stand corrected on that point.

        The three laws cited involve espionage, obstruction of investigations, and destruction of government records. Which are, in fact, more serious than PRA violations.

        Liked by 1 person

  2. All his life, Trump has done whatever he feels like regardless of legality or ethics. He weaponized our byzantine courts and and legal systems to ward off any challenges. Roy Cohn taught him how to shop judges and file countersuits against anyone no matter how egregious the case against Trump himself. Run out the clock and run out the bank account of less well heeled vendors.

    Dad’s enormous wealth passed on to Donald helped cushion the losses in cases in which he had to settle.

    This is all known, not just by the victims, but by Trump’s own bragging and testimony from his own attorney and fixer that he turned on, Mike Cohen.

    In my opinion, this may explain his cavalier attitude with the nation’s secrets mingled with his personal papers and other presidential documents. He feels entitled. And more important, he has gotten away with doing as he pleases all his life.

    He may have run into a buzz saw. The government can outlast his stonewalling with both a battery of attorneys and the power of the law. His defense of implying he can “turn down the heat” is pure Mafia intimidation. It probably won’t fly now.

    IMO

    Liked by 2 people

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s