Disinformation on Classified Information

Some defenders of former President Trump’s taking classified documents with him after he left the White House are running a disinformation campaign.  They say there can’t be anything criminal in this because Trump declassified the documents. This is irrelevant under applicable criminal laws. 

Scott R. Anderson of Brookings Institute posted a good piece on LawFare about this, “Does It Matter What (If Anything) Trump Declassified?” https://www.lawfareblog.com/does-it-matter-what-if-anything-trump-declassified.  I thought it might be a good to review the law on this blog. In later posts, I will get into the declassification of the JFK records.

The criminal laws on disclosing national security information are not related to the security classification system, except for evidentiary purposes.  The criminal laws ask whether the disclosed information relates to the national defense. They are not geared to what might be stamped on the documents.  Those stamped classifications, like Confidential, Secret, and Top Secret, are creatures of Executive Orders. Government employees may be barred from having access to them, e.g., denied a security clearance, fired for mishandling them, or enjoined from making the information public.  But government employees may not be put in jail for violating the Executive Orders.

There is wisdom behind this result.  A joke told in Germany during WWII was of two men talking. The first whispered that they had to be careful because their friend Fritz had just been arrested for what he said.  “What was the charge?” the second man asked. “Disclosing state secrets,” the first answered.  “Fritz was a carpenter.  He didn’t know any state secrets. What did he say?”  the second asked.  The first man looked around to make sure no one overheard and whispered, “Hitler is a fool.”

The principle laws are these:  

• Gathering, transmitting or losing defense information. 18 U.S.C. 793.

• Gathering or delivering defense information to aid a foreign government. 18 U.S.C. 794.

• Disclosure of classified information. 18 U.S.C. 798.  Note however that the words “classified information” as used here do not refer to the security classifications established by executive order but rather to “communications intelligence,” such as “code, cipher, or cryptographic system.”  

• Communication of restricted data.  42 U.S.C, 2274.  “Restricted data” is data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy.  Communication of such information with intent or reason to believe it will injure the United States or secure an advantage for a foreign government is a crime.

• Receipt of restricted data. 42 U.S.C. 2275. This essentially criminalizes spying to get atomic secrets and requires intent.

• Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources. 50 U.S.C. 3121.  Criminalizes disclosure of the identity of covert agents. 

Several hypotheticals illustrate how these work.  I’ll start with the strictest, restricted data. An independent researcher who has never worked for the government or read a classified document on atomic bombs nevertheless publishes accurate information on how to make one.  42 U.S.C.  2274 makes it a crime if he publishes his paper with intent to injure the United States or to help a foreign government.

18 U.S.C. 798 is basically aimed at communications codes. Disclosing information about the cryptographic systems of the United States. is a crime. If such information falls into your lap, say you’re a reporter, and you publish it, you have violated the law. Atomic energy information and communications intelligence are considered dangerous genies. Once they are let out of the bottle, the government can’t put them back.  

50 U.S.C. 3121 on disclosing agent identities is odd in several respects.  First, it applies only to the identities of agents that are obtained from “classified information.”  However, it does not define that term.  It seems likely that it was intended to apply to information that was classified under an Executive Order, but since it doesn’t define the term, who knows what it means. Presumably, if the agent himself tells someone that he is working for the government, the person receiving that information is free to disclose it.  This is an odd result.  Second, although the title says it applies to “sources,” it apparently only applies to human sources.  It does not apply to disclosures about how powerful a spy satellite's telescope might be.  Third, although the title says it applies to undercover intelligence officers, the text only applies to “covert agents.”  The CIA, for one, assiduously distinguishes between “case officers,” who are employees, and “agents,” who are not employees. As I recall, this law was amended as a result of the assassination of a CIA station chief after his name was published.  But the text of the law wouldn’t seem to apply to that assassination.

The two most frequently used national security laws are 18 U.S.C. 793 and 794.  The second law is aimed at what everyone thinks of as spying.  It is a crime to gather national defense information to aid a foreign government or injure the United States.  For example, it is November 1941, and two people are taking pictures of the naval ships at Pearl Harbor.  One is a tourist who takes the pictures to show his friends back in Iowa.  The second photographer will send his photographs to those in Japan who are planning the December 7 attack.  In neither case is classified information involved. The first man has done nothing wrong.  The second has committed a crime.

Section 793(a), (b), and (c) overlap with Section 794.   Section 793(d) applies to someone with lawful access to defense information who passes it to someone not authorized to have it. The section also applies to someone with lawful possession of such information who refuses to return it when asked.  Subparagraph (e) applies to someone who leaks information.  And subparagraph (f) applies to a person who, through gross negligence, lets someone else acquire national defense information and to any person who fails to report such a loss.  

The bottom line is that declassifying a document doesn’t mean the document is no longer subject to the criminal laws.  Take the hypothetical of a person who doesn’t know the document was declassified and who delivers it to a foreign power.  He has the requisite criminal intent.  The document is stamped Top Secret.  If the information in the document aids the foreign power or if the United States is harmed by its being passed on, why shouldn’t the person be charged as a spy?  With respect to the boxes of classified documents kept at Mar-a-Lago, the claim that Trump had standing orders to declassify any document that left the White House is no defense if those documents in fact contain national defense information. 

Beware the Golden Rule of Assassination

     I wrote this as an op ed on January 3, 2020 and submitted it to several publications.  None was interested. I chalked it up to how little editors understand history.  However, now with the arrest of an Iranian on suspicion that he planned to assassinate John Bolton in retaliation for Soeleimani's killing, I wanted to publish it somewhere. This blog seemed appropriate.

 Beware the Golden Rule of Assassination 

            Qasem Soleimani of Iran was assassinated in a drone strike in Baghdad.  The White House has indicated that President Trump himself gave the order.  Was this wise?  Iran has vowed “severe revenge.” 

            This is the first time in history that the United States has so openly stated that it assassinated someone and that the president ordered it.  This is contrary to an executive order against assassination that Republican president Gerald Ford signed.  Don’t make the mistake of thinking that this prohibition against assassination was the work of bleeding-heart liberals, or that it was because murder violates most people’s moral principles.  There are good, practical, hard-hearted reasons for not assassinating people.  These might be summed up as the “Golden Rule” of assassination:  Others will do unto you what you did to them.  Assassination invites retaliation.

            It is never clear who will pay the price of assassination, but a price will surely be paid.  I make an historical case-in-point in my book, Murder, Inc., The CIA under John F. Kennedy.  The title comes from something former president Lyndon Johnson said to a reporter.  When asked about President Kennedy’s assassination, Johnson said he thought Cuba’s Fidel Castro had retaliated for CIA attempts to kill him.  After all, Johnson continued, Kennedy was running “a damned Murder, Inc. in the Caribbean.”

            The parallels between recent events with respect to Iran and those in 1963 with respect to Cuba are instructive.  Kennedy wanted the CIA to get rid of Castro and the Communist regime in Cuba.  The CIA tried first by having Cuban exiles invade at the Bay of Pigs in 1961. That failed.  The CIA turned to Operation Mongoose in 1962 to create discontent in Cuba with raids and sabotage, but this operation was shut down after the Cuban Missile Crisis.  In 1963, the CIA decided to orchestrate a coup.  But when it first met with the high-level Cuban that it wanted to lead the coup, he insisted Castro’s assassination was the only way to do it.  Castro seemed instantly to know what was going on because that very same day he warned through a reporter “United States leaders should be mindful that if they are aiding terrorist plans to eliminate Cuban leaders, they themselves will not be safe.” 

            The National Security Council analyzed Castro’s threat and concluded that he might order the sabotage of an American oil refinery in Latin America or the assassination of an American businessman or diplomat there.  However, it did not know the CIA was involved in a possible assassination plot against Castro.  Thus, it did not take his threat literally.  It did not think he would try to assassinate the president, and it did not warn the FBI or Secret Service.          

            The CIA’s assassination plot against Castro continued.  It was meeting with the assassin, offering him a poison pen and promising him sniper rifles, at the very moment President Kennedy was assassinated in Dallas.

            Murder, Inc. concludes that President Kennedy authorized the CIA plot and that President Johnson approved the CIA’s covering it up from the Warren Commission.  The intelligence professionals at the CIA had opposed the assassination aspects of the planned coup but were apparently overruled by the White House.  In Senate hearings in 1975, Senator Frank Church asked Richard Helms, deputy director of CIA in 1963: “If we reserve to ourselves the prerogative to assassinate foreign leaders, we may invite reciprocal action from foreign governments… wouldn’t you agree?” Helms answered simply: “Yes sir.”

            That is the point of the Golden Rule of assassination.  If our government does it, we invite retaliation.  Indeed, by taking credit for the assassination of Soleimani, President Trump seems to be daring Iran.  Hopefully, that doesn’t prove as unwise as it seems at the moment.