Just Making It Up on Classification

A number of you have pointed to smintheus’ excellent post on Bush’s new classification, Controlled Unclassified Information.

On Friday afternoon, with George Bush in Texas for his daughter’s wedding, the White House finally released its new Executive Branch rules for designating and disseminating what used to be known as "sensitive" information. The most common term in the past for such material has been "Sensitive But Unclassified" (SBU), though there was an alphabet soup of competing classifications in various agencies. In part, the new rules create a uniform standard across the Executive by replacing SBU etc. with a new classification, "Controlled Unclassified Information" (CUI).

The Friday memo states that its purpose "is to standardize practices and thereby improve the sharing of information, not to classify or declassify new or additional information." The initial impetus for change came in a December 2005 memo in which Bush called for a new policy for information sharing between agencies. The alphabet soup of "sensitive" designations too often played into the hands of officials who sought to hoard information rather than to share it.


Though the material to be regulated is nominally "unclassified", this new system is in fact a much more sweeping program for keeping information secret than the ostensibly higher grades of secrecy for "classified" material. And at the same time, the system for designating "unclassified" information is in significant ways far less regulated than for "classified" information. This new memo represents the opposite of reform.

I agree with smintheus that this classification is simply an invitation for bureaucratic games that result in less information sharing rather than more.

But at the same time, with the increasing evidence that it doesn’t matter what Bush says the classification guidelines are, key players in his Administration will just do as they please anyway, I’m not sure the CUI is the worst of our worries.

Consider the example offered by Bill Leonard in his statement for Russ Feingold’s April 29 30 [thanks selise] hearing on Secret Law. Leonard focused most of his attention on the improper classification of the Yoo Torture Memo authorizing the military to torture; he offered quite a striking soundbite about the memo:

To learn that such a document was classified had the same effect on me as waking up one morning and learning that after all these years, there is a "secret" Article to the Constitution that the American people do not even know about.

But I found the details of Leonard’s discussion even more interesting. He lists the several ways in which the classification of the memo violates the guidelines for classification (much of which he had already explained–as noted in this post).

  • The original classifier of the memo was not identified
  • The original classifier may not be one of the 4000 people authorized to classify information
  • The memo lacked declassification instructions
  • The memo lacked an explanation for why it was classified
  • The memo did not indicate which portions of the memo were classified and which were unclassified
  • DOD declassified a memo apparently originally classified by DOJ

But it was not just the original classifier and eventual declassifier that violated the written rules on classification. So did Jim Haynes, Alberto Gonzales, and David Addington.

In addition, the memo was addressed to the most senior legal official within the DoD and was reportedly shared with some of the most senior officials in the Executive branch, including the then White House Counsel as well as the then Counsel to the Vice President. Like all people with a security clearance, per the President’s direction in the governing Executive Order, each of these government officials had the affirmative responsibility to challenge the inappropriate classification of information.


… the President’s governing Executive Order makes it abundantly clear that people who "classify or continue the classification of information in violation of [the] order or any implementing directive … shall be subject to sanctions … [to] include reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions…" There is no evidence to suggest that such sanctions have been imposed in this instance. Failure to apply sanctions makes it increasingly difficult to preserve the integrity and credibility of the classification system, a process that is an essential national security tool. [first ellipsis mine, remaining brackets and ellipses original]

If the Scooter Libby trial taught us anything (aside from the fact that Dick Cheney apparently ordered Libby to expose a CIA spy), it’s that the Administration is not going to punish its own for violating rules on classification and declassification.

But Leonard’s statement goes on to illustrate the fundamental hypocrisy of the Administration when it comes to classification. Leonard points out (as I also did) that all these fancy Administration lawyers violated the EO on classification they were writing even as they were improperly classifying the Yoo Torture Memo.

What is most disturbing is that at the exact time these officials were writing, reviewing, and being briefed on the classified nature of this memorandum, they were also concurring with the President’s reaffirmation of the standards for proper classification, which was formalized the week after the OLC memo was issued when the President signed his amended version of the Executive Order governing classification.

Leonard is too polite to say it, but basically the Administration was reiterating rules about classification for others that they had absolutely no intent of following themselves.

Such rank hypocrisy is only possible when you’ve got a lackey like John Yoo around to do your dirty business. As Leonard also points out, this improperly classified memo happened to be written by the same people who were responsible for interpreting that same EO on classification.

What is equally disturbing is that this memo was not some obscure, meaningless document written by a low-level bureaucrat who did not know any better and had inadequate supervision. Rather, the memo was written by the Deputy of the OLC, the very entity which has the responsibility to render interpretations of all Executive Orders, a responsibility that includes interpretating the governing order that distinguishes between the proper and improper classification of information.

Now I don’t yet have proof that Bush’s top lawyers formally used Pixie Dust to exempt themselves from the EO on classification even while they were writing it. Or whether they just don’t care, whether they simply believe that rules are for other people and it doesn’t matter what rationale they invent for ignoring their own rules, they’ll find some way to squirm out of responsibility just as they did with the CIA Leak.

But one thing is clear. No one should accept a memo on classification from George Bush as anything more than a bunch of hypocritical posturing. This President doesn’t give a damn what happens to information so long as he can selectively expose or hide information in ways that hurt his political enemies and hide his own law-breaking.

Update: transcription error fixed per MarkusQ

16 replies
  1. scribe says:

    So, item one on the agenda for the next Democratic administration should be to yank the clearances for all these clowns, immediately.

    See how that affects their earning potential….

    • phred says:

      And right after yanking their clearances, a Classified Information Review Task Force needs to be set up to review and declassify each and every document that has been improperly classified over the past 8 years. That would make some fine reading I would imagine. Also the task force should come up with a list of binding rules with serious consequences attached for those who would try to improperly classify information in the future.

  2. whitewidow says:

    Gotta love Leonard.

    OT, but germane to the whole secrecy thing, via TPM,Henry writes a letter to Mukasey.

    And includes a handy-dandy chart of the documents he has requested and the status of Mukasey’s response. As you might guess, Mukasey has not exactly been forthcoming.

  3. judyo says:

    These late in his term assaults on America only confirms to me that he is sure that the GOP will take the White House. I don’t think they much care any longer about Congress. They’ve pretty much neutered that body.

  4. rkilowatt says:

    Scribe @ 1. Yanking the clearances is an elegant remedy. Simple and effective. Surprised your contribution is not getting more acknowledgement.

  5. JohnLopresti says:

    There was an April 11, 2008 letter signed by many archiving organizations sent to Bolten [14KB] on the prototype for the now formally announced new [dis]information classification guidelines, citing the executive branch office of science and technology policy’s avowed interest in information sharing as early as 2002, which executive office OSTP is on HenryW’s 20MB grid of absent and/or winnowed emails, the latter from February 27, 2008 unfortunately documenting the anomalies only back as far as January 2003. The administration seemed to discover early in its first term an innate antipathy toward science, which is a field that relies on a peer vetted knowledge development paradigm. I appreciate the Leonard document, as I had not made time to review that hearing from April 30 2008; I knew Sen.RussF would assemble a substantial aggregate of witnesses. I suppose one benefit to Bush for his legacy will be the presidential library will fit in a small room with a computer that has limited memory and not much space on the drives; Bloch could donate some of his preferred portable drives of his departmet’s working files. I had wondered if OSC’s Bloch’s thumb drive preference was simply another way to stay on the job keeping all currently important files in flashdrive form only, but also serving the purpose of adding a layer of removal from accessibility of any sort save on a case by case basis. The March 4 2008 unsworn deposition linked in a recent Bloch thread proffered all manner of excuses for erasing information, but that is a different topic.

    • pdaly says:

      I am reminded of the suicide bombers and Al Qaeda making videos of their dirty deeds. Wondering if the neocons have a similar desire to captures something for posterity.

      If they don’t want to keep files of their dirty work, how are they going to have trophies of their ‘achievements’ for later generations of this new American century to marvel at? Money might be too generic–wondering if they are keeping trophies in some other manner.

  6. MarkusQ says:

    makes it increasingly difficult to reserve the integrity

    Shouldn’t that be “preserve“?

    – MarkusQ

  7. Professor Foland says:

    This is my chance once again to say that the “TATS” (”Treat As Top Secret”) that Cheney’s office was marking on various unclassified documents is surely a story worth learning more about…

    • Hmmm says:

      And don’t let’s forget that other Blast from the Fitz-Past, ‘Treat as SCI’ (Secure Compartmentalized Information).

  8. readerOfTeaLeaves says:

    From a completely different angle, it’s always been strange to watch GWBush, former “Skull & Bones” member, raised in privilege, son of a CIA director, talk about ‘information’. He appears to have an oligarchic, authoritarian view of any and all information, per:

    Pres G W Bush at a press conference on Sept 30, 2003, in response to a question about the Plame investigation, probably in response to a question from WaPo’s Dana Priest:

    THE PRESIDENT: …There are too many leaks of classified information in Washington… There’s just too many leaks. And if there is a leak out of my administration, I want to know who it is…. And this [Plame] investigation is a good thing… Washington is a town where there’s all kinds of allegations… people inside the information who are the so-called anonymous sources, or people outside the information — outside the administration…. I want to know who the leakers are.

    Now, ordinarily in a democracy, the domain of ‘information’ would be a very large circle that encompasses all available knowledge, because at its core a democracy assumes free flows of information. We’ll call it the ‘knowledge domain’. Hence, a democracy has to place a high value on verifying information for reliability, or ‘truthfulness’ because of its role in decision-making (whether for commerce, government, military, etc.)
    Within that large democratic ‘knowledge domain’ would be a smaller circle titled “WH_HighlyClassified” — a subset of restricted information, nested within the larger ‘information domain’. However, whether it is in the larger (public) domain, or whether it is temporarily restricted to a sub-domain of WH users, all information derives its value from it’s truthfulness.
    In this view, information has use only if it can be verified, tested, examined.

    But an ‘oligarchic view of information’ is evidently something rather different. And in that view, information domains don’t overlap — they’re separate, almost unrelated entities. GWHB and GWBush have both expressed this view, but GWBush is much farther along the ‘authoritarian’ end of the spectrum.

    GWBush posits two completely separate, unrelated ‘information domains’ — ‘inside’ and ‘outside’ of his administration. Draw one circle on the left half of a sheet of paper; another completely unrelated, separate circle on the right side. Circle 2 has no relationship to Circle 1.

    To illustrate GWBush’s language:
    Circle 1 = ‘people inside the information who are the so-called anonymous sources,…’
    This implies that a critical JOB FUNCTION of anyone ‘inside the information’ is to leak (’anonymously’). He specifically refers to these people as ’so-called leakers’.
    This is how an oligarch would view information — as something to be controlled, leaked, manipulated.
    Oligarchs derive power from controlling and manipulating ‘information’.

    Circle 2 = ‘…people outside the information — outside the administration’.
    Being ‘outside THE information’ = ‘outside’ the administration.
    You are never part of a larger whole; you are either ‘in’ or you are ‘out’.

    GWBush is an oligarchic tyrant in an Open Source world.
    Leonard, Feingold, Whitehouse, Aftergood seem to understand that in an open source world it is extremely important (for commerce, science, and the creation of what Fukiyama calls ’social capital’/trust) that information be held to certain standards for congruence with reality.

    They must surely be quite close to the soft, tender underbelly of whatever bureaucratic beast Cheney, Bush, and their minions have constructed.

    Great post, EW.

  9. rosalind says:

    favorite inside guy novakula makes an appearance in the DOD doc dump:

    “Our cadre of evil geniuses can think of many ways to motivate Saudi behavior, and we should be using them all. For example, cautious people that we are, the Pentagon should commission a secret study of how we might intervene to restore order in the former Saudi Arabia after some massive terrorist attack annihilates the Saudi royals, taking some of the oil infrastructure up with them. When that study is leaked (to Bob Novak, of course, not the New York Times) how much more uneasy will rest the heads on which the Saudi crowns lie? Enough, perhaps, to make some greater effort against those Saudis whose business it is to exhort and export terrorism?”

    fm “Bedtime for Bashar” by Jed Babbin / Spectator

  10. philipmerrill says:

    Respectfully and just for the record, I think you’re wrong. The timing of this, its flexibility as a tool, and its utter ability to be helpful at a time of need means there is probably some concrete scam that has already been launched. Like the kabillion other scams, we don’t know at our peril. I have nothing to wager with, but just watch this CUI thing come back to bite all of us on the ass. Quick Congressional hearings are needed and a much higher public profile. Classificatin of classified info is not something we can stop, but hiding unclassified info under the quasi-classification of “Controlled” or “Specified Dissemination” could easily buy certain nefarious elements just the time they need to make it out of Dodge without any of us apprehending that they were getting away with anything. I suppose I believe in the timing and seeming obscurity of this one. It is as obscure as stop/loss was once upon a time.

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