How is it exactly that a letter Jane Harman writes to the CIA manages to be classified? Harman doesn't work for the CIA, after all. Spencer Ackerman gets the answer: a legal called "derivative classification." This seems like an odd legal principle to me, but it seems well-established.
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Derivative Classification
10 Dec 2007 03:14 pm
Comments (9)
Everything (in the military at least) that is classified must have a basis for classification. Only a few people are allow to dictate "this shall be classified." These are 'Original classifiers' Everybody else, when they send out a letter, email, message, etc, that's classified must use a book that lists what type of info is classified and to what level or compartment. This is derivative classification. The usual shortcut is that when you write a message or email you re-use the same derivative classification statement listed in whatever source document, reference, or operational order that you are responding to. (if your really sleazy you use the statement "multiple sources", although sometimes it is necessary as sometimes there are actually several different classification authorities for what you are working on)
Spencer Ackerman does make a slight error --when he says "So if I publish a leaked classified document, the disclosure won't affect the classification status of that document -- though officials may then simply acknowledge what's classified, as the jig is sort of up".
Actually, they often won't make that acknowledgement. Maybe in political matters with a short half life. But probably not in military or technical areas where R&D is expensive. There is value in leaving the enemy uncertain whether he knows the real story.
People with SCI security clearances are specifically ordered to "neither confirm nor deny" classified information that is raised /exposed in unclassified forums. Actually, in any setting outside the specific setting (I'm intentionally not using the right term) in which discussion of that material is allowed.
Say you have three people, with persons A and C cleared for SCI areas 1,2,3,and 4 whereas person B is only cleared for 1,2,and 3. A and C may not discuss information re area 4 while B is around.
I remember a new issue of the security guidance document for an area being issued in which roughly 50 percent of the facts previously treated as highly classified were rendered unclassified -- because they had been publicly exposed. But until that guidance document update was issued, anyone cleared for that area was required to treat the facts as classified.
This happened in the Clinton Administration when the defense/intel budgets were deeply cut and there wasn't enough money to cover the huge costs of overclassified matter (secure storage,etc.)
Plus the White House strongarmed the Pentagon and Intel Community into reducing their overclassification -- amidst much footdragging and resistance.
In part because such overclassification greatly hurts national security -- makes R&D much SLOWER, cumbersome and far more expensive in the classified world than in the commercial sector , for example.
One other comment about this whole thing:
You are correct that Congress as a co-equal branch has responsiblity and authority for government and its actions. And you may be right that they may have some priviliged immunity for deciding to expose classified data to the general public.
Please remember though, that this is a *very* grave decision. If they are right, govt corruption gets exposed to the light of day and the good guys win. If they are *wrong* however, people may die, and the bad guys will benefit.
Senator Bob Graham, in his book, said that Congress can override the President's classification on a particular matter but that the process for doing so is awkward.
Where Congress REALLY screwed the pooch is the passage of the 1998 Intelligence Community Whistleblower Protection Act -- a prime example of Orwellian misnaming.
That Act said that any person in the Intel Community who wants to report wrongdoing to the Congressional Intel Committees (they can't even petition their own Members of Congress for "redress of grievances" ) must FIRST inform an officer of the Executive Branch that they are going to snitch. 30 days in advance.
Which is a quick way to lose your job (either right away or eventually ) and plunge your family into deep poverty.
Yet Congress itself does NOT have the ability to oversee the Executive Branch -- it has neither the staff nor the knowledge. A major deterrent to illegal acts by the Executive officers is the fact that they depend upon common Americans in the military and Intel World -- and those common Americans have values and morals even if the political appointees do not.
Congress should actively solicit millions of US citizens to be its eyes and ears -- instead, it has ensured that those citizens sacrifice their livelihood if they try to inform Congress of wrongdoing.
I once pointed this out to Melvin Dubee, Senator Jay Rockefeller's Director of Staff. Mr Dubee strongly defended the Act, however, saying that President Clinton had insisted upon it because the President could not safeguard such info if he could not determined who exactly had access to it.
Which is utter bullshit -- there is nothing to prevent any of several thousand people with access to a particular piece of info from anonymously sending such info to anywhere in the USA -- probably to anywhere in the world. Especially if they are leaving for a new job/retirement and no longer have to take a polygraph.
Something else occurred in my discussion with Mr Dubee. When I reported something I thought of concern, he asked how he could verify my info.
I then offered to swear to the info under oath and to take a polygraph --provided that he ask 6 other men to do the same. I offered to give him the names of those men.
Whereupon, Melvin jumped up in some agitation and mumbled that his committee had no "powers of investigation". He then ended our discussion.
Which informed me at that point that I was dealing with a very toothless watchdog.
Clarification: Melvin Dubee was (and still may be?) Senator Rockefeller's Director of Staff for the Senate Select Committee on Intelligence -- not for the Senator's overall office.
The Sibel Edmonds case is a classic example of over-classification and Congressional cowardice.
Sibel was fired from the FBI for making waves about security violations in the translation department. She also had specific detailed information from translations she had done which identified certain "senior elected US officials" as being connected to organized crime in Turkey and elsewhere.
She was gagged - and is considered officially THE most gagged person in the country - by the DoJ.
She is only allowed to tell the details of her story to Congressmen with certain security clearance levels. She has been trying for the last several years to find one who will both listen to her story and then expose it to the public. She has told the story to several Congressman, but none have had the balls to reveal that story.
She is now offering to tell the story regardless of legal consequences to her to any major national broadcast media who will air her story unedited. None have come forward to accept what would be the biggest story of the decade: treason and criminal activity at the highest levels of the US government.
She has told her story to Republican Charles Grassley and Democrat Patrick Leahy, both of the Senate Intelligence Committee, both who found her extremely credible. Grassley told "60 Minutes", "Absolutely, she's credible...And the reason I feel she's very credible is because people within the FBI have corroborated a lot of her story."
She's briefed the 9/11 Commission.
She briefed Congressman Henry Waxman's office. Waxman is the Democratic Chairman of the U.S. House Government Reform and Oversight Committee.
After briefing members of his security-cleared staff "inside the SCIF" -- a high-security room in the U.S. Capitol, specially created for discussion of highly sensitive information -- Edmonds says she was told on several occassions, prior to the 2006 Election, that her case would be one of the first heard in his committee, once he became Chairman.
"I even gave names of former and current FBI agents who were willing to go to Waxman's office and give more information on all of this," she said.
"Before the elections, I had a promise from Congressman Waxman's office." She claims they told her, before the election, "the only reason they couldn't hold hearings, was because the Republicans were blocking it."
"They said 'your case will be one of the first ones we will hold investigations on,'" she told us. Now, however, since the Democrats have become the majority in the House, Waxman's office is "going mum". They won't even respond to her calls.
When you are given access to classified information you agree not to share it outside of authorized channels. That means any letter referencing classified information is going to be classified at the level/compartmentalization that the original data was (I think if you strip away information specific to sources or methods, then you can take off the compartmentalization code, but it will still retain the same level of classification - Confidential, Secret, etc.).
Jane Harman doesn't have to be a CIA employee to have the appropriate security clearance, and her having the clearance is enough for her handling of information to be regulated by the rules that govern the intel community.
Re Shane's comment "That means any letter referencing classified information is going to be classified at the level/compartmentalization that the original data was "
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Not necessarily -- it depends upon the specific content of the letter. The classification guidance often distinguishes between references of a general nature (which may be classified at at a lower level ) versus references to very specific information. Obviously, the rules are subject to interpretation -- as are the 1040 tax return instructions.
And in some instances, the very fact that a particular thing actually exists may be classified
at a high level.
Plus White House bullying intimidates people into weasel-wording that becomes so vague as to be ridiculous. Consider the letter that the Senate Intelligence Chairman --Senator Jay Rockefeller- wrote to Dick Cheney in 2003, shown here:
http://www.democrats.org/a/2005/12/senator_rockefe.php
Could anything be more pathetic ?? The letter states nothing, alludes vaguely to some act by the administration , and ends with Senator Rockefeller saying he's storing a copy of this incoherent bullshit in SSCI's "secure spaces". Is that where the Senator keeps his manhood as well? I bet Cheney pissed his pants laughing when he received it.
PS Thanks to John Emerson for posting the link to the letter on an earlier thread.
Comments closed December 24, 2007.
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Heads in the Sand
Something is odd about the whole CIA tape destruction story It has Cheney's fingerprints written all over it. He is pissed that they leaked the NIE over his objections. He will use the story to destroy the CIA's credibility(Hitchens is already out with a Slate story saying the CIA should be abolished). Cheney will soon say the NIE is flat out wrong (which will undoubtedly be a lie). Then he'll give the order to bomb Iran.
Posted by Lee | December 10, 2007 3:35 PM