Despite Metaphysical Impossibility, US Government Repeatedly Attempts Retroactive Classification

On Friday, I noted that the New York Times had dutifully repeated information from military sources who had provided them with a “classified” report (pdf) on how cultural differences between NATO troops and Afghan troops are resulting in increasingly frequent killings of coalition troops by coalition-trained Afghan troops.  On Friday morning, the Times put up a correction, noting that the Wall Street Journal had published an article about the May 12, 2011 report on June 17, 2011.

I mentioned in my Friday post that the Wall Street Journal article included a link to what was said to be a copy of the report, but that the link was now dead. It is quite curious that the Journal article would have that link, as the opening sentence mentions that the report is classified. In comments on the post, Marcy Wheeler posed the question of whether the study “was intentionally buried after the WSJ story? Maybe that’s what NYT’s claim that it is classified is about?” So, in other words, was the study retroactively classified because of the Wall Street Journal article?

With only a little searching after reading both the New York Times and Wall Street Journal articles, I found what appeared to be a complete copy (pdf) of the same report (or at least a copy with the same title and number of pages), clearly stamped “UNCLASSIFIED” at the top and bottom of each page. Several hours after my post was published, the Times added a second correction to their story:

The article also referred incompletely to the military study’s secrecy. While it was classified, as the article reported, it was first distributed in early May 2011 as unclassified and was later changed to classified. (The Times learned after publication that a version of the study has remained accessible on the Internet.)

So it turns out that Marcy’s hunch was correct. The report initially was published as unclassified and then later classified, in a clear case of retroactive classification. There is perhaps just a hair of wiggle room in the Times’ statement that “a version of the study has remained accessible on the internet”, providing for the remote possibility that there are differences between the “classified” version provided to the times and the complete version on the internet, but that seems highly unlikely. The copy on the internet is almost certainly a copy from the time period when the study clearly was unclassified.

This sequence of events also is confirmed somewhat in the Wall Street Journal article itself:

The study was originally unclassified, but military officials in Kabul said Thursday that it has been recently classified “secret” by the U.S. Central Command in Florida at the request of coalition officials in Afghanistan. On Thursday, despite its new classification, the report was available on a publicly accessible military knowledge-sharing website.

The Journal’s use of a dead link, however, would lead a current reader to believe that even the “publicly accessible” version was no longer public, making their discussion of classification difficult to parse.

The publication date of the Journal article last June is a Friday, so it seems possible that Central Command decided to classify the report in response to inquiries about it as the Journal neared publication. On Saturday, January 21, I requested comment from a press contact in Central Command with whom I have previously corresponded, but have not yet gotten a reply.

Today, Marcy included me in an email conversation with J. William Leonard, who previously served as the Director of the National Archives’ Information Security Oversight Office and before that as Deputy Assistant Secretary of Defense for Security and Information Operations. The question posed to Mr. Leonard was whether the retroactive classification of the report was properly carried out. Leonard’s response noted that since “the purpose of classification is to preclude unauthorized disclosure”, that is “a metaphysical impossibility for information whose disclosure was authorized in the first place.”

So why would the government try to retroactively classify the report? In this case, the first explanation that comes to mind is that the report is embarrassing to NATO (primarily American) troops with the litany of ANSF complaints contained in the report. In other cases, as I will note below, the government has used retroactive classification as a tool in either silencing or prosecuting whistleblowers.

Here is more of Leonard’s response on the issue of retroactive classification:

Fortunately, from a policy perspective, there are no direct provisions to retroactively classify something that was unclassified and was properly put into the public domain which is what DoD did in this case when, as the WSJ article states: “the report was available on a publicly accessible military knowledge-sharing website” which from all appearances is a DoD sponsored website.

First, to retroactively classify such a document defies common sense.  Second, the purpose of classification is to preclude unauthorized disclosure, a metaphysical impossibility for information whose disclosure was authorized in the first place.  Finally, to do so can also undermine national security because even if the information is truly sensitive, the government simply draws increased attention to the information by such ham-fisted actions.

Looking further into the general issue of retroactive classification, we see that it was used to silence Sibel Edmonds in 2004. There is also a stern letter from Henry Waxman (pdf) to Donald Rumsfeld on retroactive classification of documents earlier that same year.

In this post on the blog for the Project on Government Oversight, we see discussion of retroactive classification in the government’s prosecution of Thomas Drake:

The document that relates to one of the counts of violating the Espionage Act that Drake is charged with was not even classified when it was in his possession. “In support of its willful retention charges, including Count Two, the government alleges that “[c]lassified information had to contain markings identifying the level at which it was classified,” according toa motion filed by Drake’s lawyers to dismiss Count Two. But, but, but…

Evidence recently produced by the government reveals that the allegedly classified “Regular Meetings’ document contained clear ‘markings’ that it was an ‘unclassified” document. According to a March 22, 2010 memorandum prepared by the lead NSA investigator in this case – which was produced to the defense just three weeks ago – the allegedly classified “Regular Meetings” document was posted on the National Security Agency intranet, called “NSANet,” and it was marked “UNCLASSIFIED//FOR OFFICIAL USE ONLY” in the header and footer.

Further along in the post, POGOBlog notes that retroactive classification also was used against Franz Gayl and Robert MacLean.

In a particularly ridiculous exercise, the government also prevented Carol Rosenberg from mentioning Joshua Claus’ name when she was reporting on testimony about his crimes at Guantanamo, even though she was able to point out that his name was publicly available and tied to the events being reported.

What is particularly galling about attempting metaphysical impossibilities in retroactively classifying material is that Leonard has pointed out that improper classification is a violation that should be treated on an equal level with improper disclosure:

Classifying information that should not be kept secret can be just as harmful to the national interest as unauthorized disclosures of appropriately classified information.

In fact, the executive order governing classification treats unauthorized disclosures of classified information and inappropriate classification of information as equal violations, subjecting perpetrators to comparable administrative or other sanctions in accordance with applicable law.

Don’t hold your breath, though, if you expect a prosecution, firing, or even a reprimand for anyone attempting metaphysical impossibilities when it comes to government officials retroactively classifying information.

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.
15 replies
  1. scribe says:

    I guess people knowing you were getting called out by the locals for pissing in public (apparently very offensive to the locals, even when it isn’t their neighbors’ carcasses the piss lands on) was just too much for DoD.

  2. Clark Hilldale says:

    It may be metaphysically impossible, but the USG has reclassified tens of thousands of declassified documents over the last decade or so.

    Mr. Leonard knows all about this.

  3. Gitcheegumee says:

    Jim, your reference to the Thomas Drake case -coincidentally enough-brought to mind something I was reading on an earlier occasion about Lanny Breuer.

    He and Eric Holder have been in the news of late re:the Covington and Burling connection.

    This Wiki excerpt may be of interest to some:

    Prior to becoming Assistant Attorney General, Breuer was a partner in the Washington law firm of Covington & Burling and the co-chairman of its white-collar defense and investigations practice group. Breuer was best known for his work representing the subjects of Congressional investigations. He represented the University of California in an investigation of Los Alamos National Laboratory, Moody’s Investor Service in the wake of Enron’s collapse, and Halliburton/KBR in a hearing conducted by the House Committee on Oversight and Government Reform.

    Breuer made headlines when a former colleague from the White House, Sandy Berger, asked for representation after an investigation disclosed Berger’s theft of classified documents from the National Archives.[1]

    On January 22, 2009, President Obama selected Breuer to head the Criminal Division of the Department of Justice.[2] He was confirmed by the Senate on April 20, 2009 by a vote of 88-0.[3]

    Breuer was in this position during the prosecution of Thomas Andrews Drake, an NSA whistleblower indicted in 2010 under the Espionage Act of 1917 for ‘retaining national defense information’, which led investigative reporter Jane Mayer to write, “Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies.”[4]

    In December of 2011 Senator Chuck Grassley called for Breuer’s resignation due to his involvement with Operation Fast and Furious.[5] Breuer stated in October 2011 he regretted he didn’t do more to raise concerns at the U.S. Justice Department.[6]—Wikipedia

  4. Gitcheegumee says:

    I imagine Berger wishes that the documents he purloined HAD been retroactivley de classified:

    Unauthorized removal of classified material

    The National Archives building in Washington, DC
    On July 19, 2004, it was revealed that the U.S. Justice Department was investigating Berger for unauthorized removal of classified documents in October 2003 from a National Archives reading room prior to testifying before the 9/11 Commission. The documents were five classified copies of a single report commissioned from Richard Clarke, covering internal assessments of the Clinton administration’s handling of the unsuccessful 2000 millennium attack plots. An associate of Berger said Berger took one copy in September 2003 and four copies in October 2003.[16]

    After a long investigation, Justice Department prosecutors determined that Berger only removed classified copies of data stored on hard drives stored in the National Archives, and that no original material was destroyed.[17] Berger eventually pleaded guilty to a misdemeanor charge of unauthorized removal and retention of classified material on April 1, 2005. Berger was fined $50,000,[18] sentenced to serve two years of probation and 100 hours of community service, and stripped of his security clearance for 3 years.[19] The Justice Department initially said Berger stole only copies of classified documents and not originals. But the House Government Reform Committee later revealed that an unsupervised Berger had been given access to classified files of original, uncopied, uninventoried documents on terrorism. Several Archives officials acknowledged that Berger could have stolen any number of items and they “would never know what, if any, original documents were missing.”[20]

    On December 20, 2006, Inspector General Paul Brachfeld reported that Berger took a break to go outside without an escort. “In total, during this visit, he removed four documents … Mr. Berger said he placed the documents under a trailer in an accessible construction area outside Archives 1 (the main Archives building).” Berger acknowledged that he later retrieved the documents from the construction area and returned with them to his office.[21][22]

    On May 17, 2007, Berger relinquished his license to practice law as a result of the Justice Department investigation. Wiki

    NOTE: I hope you don’t mind the digression,Jim,but it is interesting to compare and contrast these different cases..also the timelines.

  5. Benjamin Franklin says:

    “;So, in other words, was the study retroactively classified because of the Wall Street Journal article?”

    They are bureaucrats, after all, and bureaucrats are just politicians without a constituency. They don’t like extra paperwork.

    They wear belts andsuspenders. They look both ways before crossing a one-way street.

    Just as with the unnecessary SOPA, (AUMF gives them everything they need to shut down websites) these guys probably had their asses handed to them in a diplomatic bru-ha-ha over those New Zealand warrants. They want to close the barn door before the horse gets out.

  6. Frank33 says:

    @Benjamin Franklin:

    They are bureaucrats, after all, and bureaucrats are just politicians without a constituency. They don’t like extra paperwork.

    How about, they are war criminals. They are covering their liability for murder and torture and lies. Everything is secret. The embedded stenographers are well trained monkeys who repeat the lies. Afghanistan is an expensive disaster. Irak is an expensive disaster but they have Oil. As always, the spies serve the bankers and war profiteers.

    Do not believe any of the delusions this secret government catapults. A four million member army of spies and secret keepers. Their goal is another war And maybe some more False Flag Ops to get more repression.

  7. MadDog says:

    Glad to see the NYT pays attention to Rancho Emptywheel and its contributors. I wonder if there is any compensation due here for correcting their work? *g*

    P.S. – Jim, if you remember our earlier discussion about being cheapskates regarding a certain member of the 4th Estate, I have a solution that is working. Rather than spilling the beans to the obviously watching 4th Estate, perhaps we can chat about how you too can use the solution via email. If you don’t already have my email address here, either EW or bmaz can give it to you.

  8. thatvisionthing says:

    @Gitcheegumee: This is the part that really boggles me, except it doesn’t:

    But the House Government Reform Committee later revealed that an unsupervised Berger had been given access to classified files of original, uncopied, uninventoried documents on terrorism. Several Archives officials acknowledged that Berger could have stolen any number of items and they “would never know what, if any, original documents were missing.”

    There is no there there, not when you need to hide everything and be vewy vewy sc-sc-sc-fwightened. National Alzheimer’s is our national policy. Rolls big eyes.

  9. thatvisionthing says:

    @Gitcheegumee:

    [Lanny Breuer] and Eric Holder have been in the news of late re:the Covington and Burling connection. … Prior to becoming Assistant Attorney General … Breuer was best known for his work representing the subjects of Congressional investigations.

    Isn’t that cozy? Makes me think again about Eric Holder when HE was Assistant Attorney General in the Clinton administration, squelching Congressional investigations, like one into the Oklahoma City bombing:

    Horton: So all those years that I was scratching my head trying to figure out how it could possibly be that Congress never convened a single hearing on any subcommittee in either house when it was run by either party on this case, it was because Eric Holder was doing the shuttle diplomacy there between branches of government preventing Dan Burton, Orrin Hatch, Arlen Specter, Patrick Leahy, people like that, from investigating this case.

    Trentadue: Both my brother’s murder and the bombing. It’s my understanding there’s never been a hearing on the bombing.

  10. Gitcheegumee says:

    @thatvisionthing:

    tvt,once again you and I are on the same wavelength. That particular passage haunted me since I posted it.

    To begin with,WHY were there not ANY master list inventories of all the original classified documents?

  11. Gitcheegumee says:

    @Gitcheegumee:

    With regard to Chuck Grassley’s December 2011 request that Mr. Breuer resign because of the Fast and Furious illegal weapons /Mexican debacle, this ew thread from a while ago is interesting,imho:

    From the Department of Ironic Reorganization | Emptywheel

    Oct 12, 2009 … Assistant Attorney General Lanny Breuer has proposed combining the Criminal Division’s Domestic Security Section and the Office of Special …

    emptywheel.firedoglake.com/…/from-the-department-of-ironic- reorganization/

    anny Breuer | emptywheel

    http://www.emptywheel.net/tag/lanny-breuer/

    Assistant Attorney General Lanny Breuer has proposed combining the Criminal Division’s Domestic Security Section and the Office of Special Investigation.

    http://www.emptywheel.net/tag/david-addington/page/2/

    Assistant Attorney General Lanny Breuer has proposed combining the Criminal Division’s Domestic Security Section and the Office of Special Investigation.
    War Crimes | Main Justice

    http://www.mainjustice.com/tag/war-crimes/
    Lanny Breuer (USDOJ). Assistant Attorney General Lanny Breuer has proposed combining the Criminal Division’s Domestic Security Section and the Office of …

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