Retroactive Classification: The Government’s Favorite Tool for Silencing Whistleblowers

First: note the byline. Yes, I have not posted in almost a year, but you just might be seeing more of me again.

One of my favorite posts from back in the days when I posted regularly was the one on retroactive classification. The really fun part was the statement from J. William Leonard that retroactive classification is a “metaphysical impossibility”:

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 imagine my delight when I went to the copy of the declassified whistleblower complaint and encountered this on only the second page:

On first glance though, it might be easy to say these two situations are different. In the case of my previous post, we were talking about a document that had already been published with an “unclassified” marking and was even mentioned in the press. Here, we are talking about a report that is being submitted to the Intelligence Community Inspector General and would, at least at the beginning of the process, be closely held. But the complaint, if found credible, was destined for dissemination to Congressional committees, and so would eventually be fairly widely seen. The whistleblower rightly was working to protect against someone realizing just how embarrassing the report is to the President and our government and deciding that the report should be buried rather than widely shared.

The comparisons, though, go much deeper. My earlier post goes on to discuss the use of retroactive classification in the cases of Sybel Edmonds, Thomas Drake, Franz Gayle and Robert MacLean. What do these people have in common? They were all whistleblowers. And as soon as the government realized just how embarrassed they would be when the truth came out, they tried their best to shove it back under a rock.

It is fortunate for us that this whistleblower has such a deep understanding of the classification process. Even better, this person appears to have a thorough understanding of the history of whistleblowers and what happens to the information they aim to disclose. The bit early in the report on classification does a good job of providing justification for the body of the report to be unclassified. Perhaps the note about retroactive classification is an attempt to leave a trail once it is attempted.

Remarkably, though, that is not the most important instance of retroactive classification in the report. The part of this report that may well have the most lasting historical impact is this (in what, ironically, was originally classified and now declassified):

So, “White House officials” realized just how embarrassing the call’s full transcript would be. We had learned earlier in the report that the White House Situation Room regularly produces a “word for word” transcript of calls and puts it on a computer system accessed by people at the Cabinet level. Further, the whistleblower informs us that this time, it was “White House lawyers” who directed that the transcript be removed from this system and moved to the more secure system. Coupled with the note from the appendix, we see that Trump’s White House has decided that retroactively classifying embarrassing information is their best bet for burying information to prevent it being spread by whistleblowers. We are so fortunate that this whistleblower fully understands that process and has even documented it for us, essentially in real time.

Time will tell, but it seems to me that by telling us there are more transcripts buried on the secure computer system, the whistleblower has provided a roadmap to information that may prove even more catastrophic for the Trump Administration than the disclosure of the attempt to get Ukraine to smear Joe and Hunter Biden.

Senate Intelligence Committee Doesn’t Think the Intelligence Community Inspector General Does Enough All-IC Oversight

The Intelligence Community Inspector General receives just two mentions in the Intelligence Authorization released earlier this month. First, in a standalone section that will permit it to hire expert auditors, as other Inspectors General can. The bill report explains that section this way.

Section 307. Inspector General of the Intelligence Community auditing authority

Section 307 permits the IC IG to hire contractor or expert auditors to meet audit requirements, similar to other Federal IGs. Section 307 responds to the Committee’s concerns that the IC Inspector General (IC IG) is at risk of failing to meet its legislative requirements due to its inability to hire qualified auditors by granting the IC IG independent hiring practices identical to other IGs.

Good to see that eight years after it was created, the ICIG will be able to start doing competent financial audits.

In addition, the unclassified portion of the Intel Authorization includes the ICIG among those Inspectors General that must see whether its agencies are classifying and declassifying things properly.

Which suggests this passage — which goes far beyond those two passages — may correspond to some language within the classified portion of the bill.

Inspector General of the Intelligence Community role and responsibilities

The Inspector General of the Intelligence Community (IC IG) was established by the Intelligence Authorization Act for Fiscal Year 2010 to initiate and “conduct independent reviews investigations, inspections, audits, and reviews on programs and activities within the responsibility and authority of the Director of National Intelligence” and to lead the IG community in its activities. The Committee is concerned that this intent is not fully exercised by the IC IG and reiterates the Congress’s intent that it consider its role as an IG over all IC-wide activities in addition to the ODNI. To support this intent, the Committee has directed a number of requirements to strengthen the IC IG’s role and expects full cooperation from all Offices of Inspector General across the IC.

The Committee remains concerned about the level of protection afforded to whistleblowers within the IC and the level of insight congressional committees have into their disclosures. It is the Committee’s expectation that all Offices of Inspector General across the IC will fully cooperate with the direction provided elsewhere in the bill to ensure both the Director of National Intelligence and the congressional committees have more complete awareness of the disclosures made to any IG about any National Intelligence Program funded activity.

Ron Wyden submitted — but then withdrew — language extending whistleblower protection to contractors. Instead there’s just this language nodding, yet again, to protecting those who whistleblow.

But I’m as interested in SSCI “reiterate[d] the Congress’s intent that [ICIG] consider its role as an IG over all IC-wide activities in addition to the ODNI.”

Going back to 2011, the ICIG refused to do a community-wide review of the way Section 702 works (or count how many Americans get sucked up). With EO 12333 sharing raw data with other agencies, it behooves the ICIG to review how that process works.

The Intel Authorization also requires a review to make sure all the agencies shared the data they should have on Russian tampering with the election. It turns out the interagency “Task Force” John Brennan set up in the summer was a CIA-led task force. It wasn’t until December that a broader set of analysts were permitted to review the intelligence, leading to new discoveries (including, it seems, new conversations between Trump officials and Russians of interest). And it seems highly likely that DHS was left out of the loop, which would be especially problematic given that that’s the agency that talks to state electoral officials.

As Mike Pompeo seems intent on politicizing Iran intelligence and killing diversity at CIA, I hope ICIG gets directed to review CIA’s approach to both of those issues.

There are likely more items of interest addressed in the “requirements to strengthen the IC IG’s role.” Which is a good thing.