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The Trump-Biden-Pence Documents Story Is Not (Yet) about Overclassification

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It is my belief that had Eric Holder appointed a Special Counsel to investigate David Petraeus’ hoarding of classified information, the retired General might have been charged with 18 USC 793(e) and maybe even 793(d).

That’s true, first of all, because the facts he admitted to as part of his wrist-slap plea largely cover the elements of the offense. That’s true, too, because everyone but Holder seemed to support charging Obama’s CIA Director. Ultimately, the decision would have remained Holder’s. Holder might have overruled a Special Counsel even still, as he is reported to have overruled prosecutors. Holder may have calculated that Petraeus’ years-long cultivation of Congress would mitigate any blowback for overriding the recommendation to prosecute.

Certainly Holder paid no price for making the decision he did make: Congress believed that Petraeus could do no wrong.

Instead, Petraeus is (with Sandy Berger) one of the two poster children for the premise that the powerful will never be held accountable for mishandling classified information the way lower ranking personnel will be. That could change with at least two Special Counsels involved.

Yet even as powerful as he was during the period he was leaking to his biographer, David Petraeus is still differently situated than Trump, Biden, and Pence, starting with the fact that even in his case, DOJ relied on his clearance and nondisclosure agreements to prosecute him.

By comparison, all three of the men currently under investigation were Original Classification Authorities under EO 13526, the Executive Order governing classification during the period in question. None of those men would ever have been required to get any security clearance beyond the courtesy clearance given to formers after their tenure (of which Trump was stripped). And so all of these men went from a status of near immunity while in office, instantly — at 12:00PM on January 20 — to having to sort through files in boxes to decide what he was permitted to take home and what he was obligated to turn over to the Archives.

That process was at least part of what went wrong in all three cases, even Biden’s possession of documents from when he was a powerful Senate Chair. One minute, they were virtually immune from rules pertaining to classification, and literally the next minute — before they had finished that sorting process! — they were subject to the rule of law again.

Indeed, because all three are explicitly subject to the Presidential Records Act, the basis by which they lack authorization to possess the documents in question stems, in significant part, from an entirely different basis than it does for other people, which arises from the clearances they were never required to get.

And that’s one reason why all the punditry (here, here, here, here) — almost all from people who haven’t followed the details even of the Trump case, where we’ve got the most facts available — claiming that this is a problem with overclassification is, at best, wildly premature.

Indeed, with Trump, we can say with some certainty that this is not about overclassification. The classification markings from the subpoena DOJ served on him, understood to be based in part on what they had already found in the boxes he turned over, are not trivial. Nor are the likely contents of the documents we see in the FBI picture of his stolen documents. Even some of the documents from the Russian investigation that Trump wanted to declassify and disseminate rely on either human source and/or intelligence collection targeting Russia’s spy service, and the reporting was just five years old at the time (a brand new must read from the NYT also reveals the intelligence came from the Dutch, so it wasn’t our intelligence to declassify).

These men were the President and Vice President. They had access to highly sensitive information, and Trump, at least, had a well-established history of releasing it with abandon.

Until we have evidence that the documents in question were simply materials that some agency was bigfooting (as was the case in most of the classification pertaining to Hillary’s emails), we should not assume this is about overclassification. There’s no evidence of that.

Chuck Rosenberg argues that it also should not matter.

One place we might see overclassification is in classification reviews of the hand-written notes that both Trump and Biden took, though even there, Trump was reportedly waving around his private love letters with a nuclear-armed dictator as a party trick, and that probably did have the ability to make it harder to manage a very difficult threat. But with Trump, at least, the possibility that some of his hand-written notes won’t turn out to be as sensitive as the spooks will declare them doesn’t mitigate that he had documents that are almost certainly unbelievably sensitive sitting in a beach resort known to be targeted by intelligence services.

Thus far, we have no evidence that this is about overclassification. We do have abundant evidence that these three specific compromises have to do with the wacky way Presidents and Vice Presidents (and to a lesser degree, Members of Congress) operate outside the system of clearances that leads virtually everyone else with access to classified information to exercise a great deal of caution when handling it. One day they’re immune, the next day they’re sorting documents to try to sort out what needs to go to the Archives.

That’s a different problem than overclassification.

Crazier still, most of the people who are out there claiming this about overclassification are using (at least partly) as their examples people who sought out documents that were not part of their work and then leaked those documents. Those cases are also not about overclassification.

And amid all the talk of overclassification, none of the pundits have mentioned a case that is a far more apt example of overclassification and the way the Executive uses classification to punish people: Jeremy Brown, the Oath Keeper recently found guilty of unlawfully retaining — right next to some grenades for which he was also convicted — one document that Brown wrote himself in 2011, classified Secret, believed to be about the Bowe Bergdahl case.

Brown was acquitted on 793 charges for four other documents, also classified Secret, that were even older.

Brown’s case in many ways parallels Trump’s. Like Trump, the Feds showed up and asked him to return the document and he lied to hide it. Like Trump, the FBI found the documents with a warrant.

But it’s far more likely these documents, all of which were at least ten years old, are overclassified.

Don’t get me wrong: I think Brown is a dangerous shithole. I’m not unhappy he’s going to prison.

I also think DOJ believed, correctly, they could use these classified documents (along with the grenades) as a way to neutralize a dangerous loose canon.

Want to make a case about overclassification? Jeremy Brown is the dangerous shithole you should be defending. Want to prevent the grave disparities in how powerful people are treated, as compared to dangerous shitholes like Jeremy Brown?

You need to address that magic process by which Presidents are treated with immunity and then — in an instant!! — purportedly subjected to the same rules as everyone else.

Dunford Declares Taliban’s Political Space “Significantly Reduced” on Day of Their Biggest Propaganda Win

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I often note how the US military, throughout its nearly 13 year quagmire in Afghanistan, continues to spout “we’re winning” messages when it is clear that the entire effort has been an utter failure from the start. Juxtaposing a story in today’s Washington Post with another in today’s New York Times shows how the military’s rosy statements are devoid of all connection to reality on the ground.

The Post story centers on the military, with Joseph Dunford in the lead, filling in more details on projected troop staffing levels in Afghanistan beyond the end of this year. The article ends with this gem:

U.S. and NATO officials described a Taliban force that has been greatly debilitated since the beginning of this year and pointed to the successful first round of Afghanistan’s presidential election in April as a defeat for the militants. The top two vote-getters are competing in next week’s runoff to succeed President Hamid Karzai, who has refused to sign the bilateral security and status-of-forces agreements.

“In the wake of the election, for the first time . . . the Taliban are on the defensive in the information space,” the senior military official said. For 10 years, he said, the Taliban has had two messages — that the United States was occupying their country and ultimately would abandon it. In the wake of the turnover of combat operations to Afghan national forces over the past year, and Obama’s announcement for the future, those messages have less resonance, the official said. The coalition has made clear, the official said, that we “won’t fall off the cliff at the end of 2014.”

Dunford described “friction” within the Taliban and said that although the militants are still carrying out lethal attacks against Afghan forces, “if you compare the political space of the Taliban, it’s significantly reduced.”

Okay, then. The Taliban is “greatly debilitated”, are “on the defensive in the information space” and are “significantly reduced” in “the political space”. Yet, on the very day that Dunford and a “senior military officer” made such outrageous claims, the Taliban were happily scoring their biggest propaganda victory of the entire war in Afghanistan. From the Times:

The Taliban seem loose, almost offhand, on camera as they wait for the American Black Hawk to land. Two fighters walk their hostage, Sgt. Bowe Bergdahl, out to American troops, greeting their enemies eye to eye as they quickly shake hands. They wave as the Americans retreat back to the chopper.

In their viral video to the world on Wednesday, framing dramatic images of their transaction with the United States with music, commentary and context, the Taliban scored their biggest hit yet after years of effort to improve their publicity machine — one bent on portraying them as the legitimate government of Afghanistan in exile.

Within hours of the video’s release, the Taliban website where it was posted was overwhelmed with traffic and the page hosting it crashed, according to Zabiullah Mujahid, a spokesman for the insurgents. The video has since been uploaded in dozens of different versions on YouTube.

It is the product of a Taliban propaganda effort that has grown increasingly savvy.

It’s hard to imagine a better example of how the US has lost all credibility when it comes to describing conditions in Afghanistan. Granted, the statements in the Post stem initially from claims made around the election going “smoothly“, but the sweeping statements quoted clearly are meant to apply to the Taliban’s situation generally, not just regarding the election. But the Taliban even covered that:

And they suggested that they had purposefully held back on attacking civilians on election day in April, and that Afghans should trust the Taliban over a government being chosen by Western ways.

We can only wonder how Dunford and his associates will ever be able to top this one.

What Role Will Released Taliban Detainees Have in Afghanistan’s Future?

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A provincial governor and one of the more moderate co-founders of the Taliban, a top military commander (who was betrayed by our war criminal Rashid Dostum, and against whom credible war crimes complaints have been raised), another provincial governor, Deputy Chief of Taliban Intelligence, and a minor judge.

These are — according to an Afghanistan Analysts Network report drawing on years of engagement — the men whom President Obama just traded for the released of Bowe Bergdahl. They will remain under a travel ban in Qatar for a year. Then what?

While the usual sources are declaring all of them — rather than just some of them — among the most dangerous men at Gitmo and warning they’ll be attacking American soldiers imminently, I’m more interested in what role these men — four of whom are clearly key leaders, including legitimate military and intelligence leaders — will play in Afghanistan after we leave.

I ask that because, while I believe Obama has botched the legalities of the transfer (he should have noticed Congress, even if not the full 30 days in advance; bmaz should have more to say on that later), I think the most useful way to approach the swap is the way Ken Gude does: we would have had to release these men within a year or so anyway, and so we’re better off freeing Bergdahl in the process.

When wars end, prisoners taken custody must be released. These five Guantanamo detainees were almost all members of the Taliban, according to the biographies of the five detainees that the Afghan Analysts Network compiled in 2012. None were facing charges in either military or civilian courts for their actions. It remains an open question whether the end of U.S. involvement in the armed conflict in Afghanistan requires that all Guantanamo detainees must be released. But there is no doubt that Taliban detainees captured in Afghanistan must be released because the armed conflict against the Taliban will be over.

Sgt. Bergdahl was a U.S. soldier captured in an active zone of combat. The circumstances of his capture make him a Prisoner of War, not a hostage as some have erroneously claimed. In traditional conflicts, both sides would release their prisoners at the conclusion of hostilities. This is not a traditional conflict, however, and the Obama administration rightly had no expectation that Sgt. Bergdahl would have been released when U.S. forces redeployed out of Afghanistan. As that date neared, any leverage the United States possessed would have been severely undermined.

But I’m also fascinated by the messaging problem years of conflating the Taliban and Al Qaeda is now causing.

Regardless of the allegations against some — and the evidence against Mullah Fazl Mazlum — as Taliban (and Haqqani, in the case of the judge) they were also lawful combatants (if that — several were civilians when captured) of a state at war with the United States. If we plan on ending that war, these men will be entitled to engage in the politics and fighting that will determine Afghanistan’s future going forward. Several of these men appear to have the kinds of skills Afghans will need to rebuild their country — though it’s unclear what kind of credibility they’ll have after years of rotting in an American prison. And of course, it’s not even clear what role the Taliban will have after we leave.  We certainly haven’t defeated the Taliban!

(Some of) these men may be dangerous, in the same way Stanley McChrystal would rightly be viewed as dangerous if captured by our adversaries. But they are also members of entity that governed Afghanistan when this war started, an entity that is likely to play some role, for better and worse, going forward.

And yet the debate about their release seems to forget that distinguishes them from the terrorists.

Will Successful Bergdahl Negotiations Get US-Taliban Peace Negotiations Going Again?

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This weekend’s swap of Bowe Bergdahl for five Afghan Taliban prisoners from Guantanamo has triggered responses on a large number of fronts. For now, I will leave it to others to sort through whether Obama was required to inform Congress, whether the move provides incentive to the Taliban to capture more prisoners and whether Bergdahl was a deserter. Instead, I want to focus on the fact that this prisoner exchange stands as a significant accomplishment in negotiation among parties who have seen previous attempts at negotiation fail.

Recall that back in early 2012, we first learned that the Afghan Taliban was opening an office in Qatar:

The Taliban said in a surprise announcement last week they had reached a preliminary agreement to set up a political address in Qatar and asked for the release of prisoners held by the U.S. military at Guantanamo Bay.

So the release of Afghan Taliban prisoners from Guantanamo was at the top of the list for setting up the office in Qatar and beginning negotiations. It is also important to note that the Haqqani Network, who held Bergdahl in Pakistan, was also to be included in the talks at the same time that the opening for negotiations was first noted and that Pakistan helped to move things along:

The US has taken Pakistan into confidence over the unprecedented development of allowing the Taliban a political office in Qatar to advance the Afghan reconciliation process, sources revealed.

A senior Pakistani official stated that the Obama administration not only sought Pakistan’s consent over the Taliban office but had also given a ‘green light’ to allow the deadliest Afghan insurgent group, the Haqqani network, to be a part of the reconciliation process.

The move by Washington was a clear deflection from its previous policy of keeping Islamabad at bay over its peace overtures with the Afghan Taliban.

“Yes, we were onboard,” said the senior Pakistani official referring to the latest push by Washington to seek a political settlement of the Afghan conflict.

The process suffered a major setback when the office was found to be flying the flag the Taliban used when they ruled Afghanistan and when the sign on the door seemed to suggest that the Taliban felt they were still the legitimate governing body. Hamid Karzai threw a huge fit over that development, and even though his government hadn’t been invited to the talks, he managed to stall the process. About a year and a half later, things settled down a bit and the provocative sign and flag were removed.

In today’s New York Times, we are warned not to infer that the prisoner swap means that additional talks look likely: Read more →

Bowe Bergdahl and Joke Line

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Just one follow-up to my "Omigoddidjokelinereallygothere" post from yesterday.

Joke Line, in his screed against Glenn Greenwald, argued that Glenn cares not a whit for national security.

During that time, I have never seen him write a positive sentence about the US military, which has transformed itself dramatically for the better since Rumsfeld’s departure (indeed, he ridiculed me when I reported that the situation in Anbar Province was turning around in 2007). I have never seen him acknowledge that the work of the clandestine service-performed disgracefully by the CIA during the early Bush years-is an absolute necessity in a world where terrorists have the capability to attack us at any time, in almost any place. Nor have I seen [him] acknowledge that such a threat exists, nor make a single positive suggestion about how to confront that threat in ways that might conform to his views. Therefore, I have seen no evidence that he cares one whit about the national security of the United States. It is not hyperbole, it is a fact.

You see, the thing that bugs Joke Line is that (he says) Glenn is a "a civil liberties absolutist" and doesn’t talk about the transformation of the US military, the importance of the clandestine services, or the terrorist threat.

But see what he doesn’t say? 

He doesn’t mention the men and women serving in the military. At least as he has framed his attack, Glenn’s failure is that he hasn’t mentioned the abstract military-as-machine and the terrorist-threat-as-bogeyman. But not that he hasn’t mentioned the men and women risking their lives to run that military-as-machine against the terrorist-threat-as-bogeyman.

Now, I don’t mean to adopt Joke Line’s rhetorical attack–attacking Glenn for things he hasn’t said. I trust that Joke Line cares about the troops, regardless of how he has framed his attack on Glenn. 

But I did want to point out something missing from the binary he set up: civil liberties absolutist versus national security realist.

Bowe Bergdahl.

Bowe Bergdahl and all the other men and women who have or might be taken captive by our enemies in the war Joke Line cares so much about. Bergdahl, who, last anyone checked on August 10, is still in Taliban custody. Read more →