Things move fast in your nation’s capital. What began at 7:00 pm as a simple “explainer” on declassifying previously classified materials was overcome by events by 8:30 pm.
On Monday President Donald Trump chose to go against the wishes of the intelligence community, ordering the Director of National Intelligence and the Director of the FBI to declassify significant portions of the application for a Foreign Intelligence Surveillance Act warrant used to surveil his former campaign aide Carter Page. He also ordered the release of “FBI reports of interviews with [FBI Special Agent] Bruce G. Ohr prepared in connection with the Russia investigation,” and text messages that former FBI Director James Comey, former Deputy Director Andrew McCabe, and Special Agents Lisa Page, Peter Strzok, and Ohr exchanged on government-provided phones.
Naturally, by Tuesday evening, the House Minority Leader Nancy Pelosi, Senate Majority Leader Chuck Schumer, and the ranking Democrats on the intelligence committees, Rep, Adam Schiff and Sen. Mark Warner, had signed a letter to the director of national intelligence, the deputy attorney general, and the director of the FBI.
This was no ordinary letter asking for information. Those kinds of letters travel around Washington daily. No, this letter overstepped the line between the executive and the legislature in a way that is as unprecedented as the president’s order to declassify the documents.
Democrats make appeals to the DNI, FBI, and Attorney General
The letter began with the the usual concerns over giving the president information related to an investigation into his campaign and “his associates.” But it goes one frightening step further.
The four requested a briefing to the “Gang of Eight,” the term for the Democrat and Republican leaders in the House and Senate, and the two intelligence committees. Again, that isn’t an unusual request. But chillingly, the four Democrats tried to give an order to the executive branch: “Your agencies’ review [of the material to be declassified], and any communication with the White House on the substance of the material, should not proceed further until you have briefed the Gang of Eight in person.”
The sound you heard was the howl of laughter coming from general counsels’ offices across the capital.
Buckle up, this might be a bumpy ride, but I’ll try to spell it out as simply as I can.
all classified information is at the sole discretion of POTUS
First off, as I wrote regarding the former CIA Director John Brennan’s security clearance, the system of classifying information and deciding who can access it is not enshrined in any law. While there are laws prescribing penalties for the unauthorized disclosure of such information (just ask guest of the nation Reality Winner), the entire national security classification system is at the sole discretion of the president.
The document that lays out the procedure for classifying and declassifying government information is Executive Order 13526. Lest someone think that Trump has somehow changed the rules to suit himself, President Barack Obama issued the current version of the order on December 29, 2009. It describes the types of information that should be classified, which officials possess “original classification authority,” and sets out procedures to ensure that information that doesn’t meet criteria for classification isn’t classified to prevent the disclosure of, among others, violations of the law or embarrassing information.
“No information may remain classified indefinitely,” the order reads, and it specifies that information “shall be declassified as soon as it no longer meets the standards for classification under this order.” In any case, declassification is automatic after either 10 or 25 years, at the discretion of the original classification authority, unless it could “clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction.”
if congress doesn’t like it, they need to pass a law
The officials authorized in most cases to declassify information are the original classification authority, his or her successor, their supervisors, and “officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency.”
And at the top of this pyramid sits the president. There is absolutely nothing other than tradition and discretion to prevent the president from declassifying any piece of information he wants to declassify. Congress is powerless to stop him. These procedures have existed in one form or another since the Eisenhower Administration. For the younger readers, Eisenhower was president from 1953 to 1960.
Congress has had ample opportunity to pass laws (assuming any president would sign them) to restrict how the president classifies and declassifies information. It has not done so, even though Trump is the eleventh man to sit in the Oval Office since Eisenhower.
Congress (bless their hearts) has no authority to boss around the executive branch
Furthermore, absent a specific statute, Congress has no authority to direct officials in the executive branch to do anything other than appear to testify before a committee. I have been part of this verbal dance in the past. Congress directs the executive branch, particularly the Department of Defense, to submit innumerable reports each year. Sometimes, those reports are included in legislation, other times, they are spelled-out in the committee reports accompanying the bill. Regardless of where the request originated, Congress will always say something like “the Committee directs the Secretary of Defense to submit a report…”
When we responded, we changed the language based on the circumstance. If the report was required by a provision in law, we would begin the response letter, “Congress directed the Department to…” But if the reporting requirement was only in a committee report, our response began, “The committee requested the Department to…” I don’t know if anyone on the Hill ever noticed those little differences in language, but to the lawyers in the DoD, it was very important that we remind them, politely and subtlety, that they could only direct us through enacted legislation.
bottom line: the president can declassify whatever he wants
So to summarize, the democrat half of the Gang of Eight has flexed their muscles for the cameras. They have sent a meaningless letter to three executive branch officials over whom they wield no direct power, ordering them to ignore the lawful orders of the President of the United States. It’s madness that serves no purpose other than to whip into a frenzy those whose understanding of the separation of powers is limited to what little they remember from their eighth grade U.S. history course.
The president can declassify any piece of information he wants, regardless of how damaging that information might be, or how much damage to other operations it might cause. I’m not saying this is a good idea, mind you, just that it’s legal. But Pelosi and company no doubt hope to convince their supporters that any refusal to comply with their letter necessarily precipitates a constitutional crisis.
It doesn’t, but the midterm elections are mere weeks away, and the first rule of campaigning is “never let the facts interfere with a good story.”
