Update: Tweeting Top Secret

Back in the dark ages of the Trump presidency, the President tweeted this photograph. An earlier post examines the legality of this act (100% legal), and speculates about the potential damage to national security (none, really).

Journalist Zach Dorfman of Yahoo News has posted an interesting article that quotes defense officials on the disclosure’s impact. Opinion seems divided.

Michael Mulroy, a deputy assistant secretary of defense in Trump’s administration, argued that US efforts to monitor or disrupt Iranian missile development (the photo’s subject) “should have been held in the utmost secrecy.” The article also quotes an unnamed National Reconnaissance Office (NRO) official who describes the disclosure as “incredibly ridiculous and stupid and damaging.” These reflect the standard position of the intelligence community: “we can’t tell for sure what the enemy knows, so we’ll err on the side of caution and keep everything secret we possibly can.”

(Digression: We find a more realistic attitude in a declassified report on CORONA, a pioneering US spy satellite program. The 1959 report identifies several ways the innovative and secret program might be kept secret, but recognizes that these techniques will eventually fail. One source I saw (but can’t find right now) reported that the Soviets knew about Corona by 1962. The satellite launches ended in 1972, and were followed by (and superseded by) more sophisticated systems. The CORONA program was classified Top Secret until it was declassified in 1992. The intelligence community has a habit of keeping everything classified for as long as possible despite well-known disclosures to adversaries.)

Unnamed White House officials at the time disputed the photograph’s sensitivity. One remembered that the image was classified Secret, though an intelligence official claimed that it was “Top Secret Codeword.”

Ironically, a report by National Public Radio the day before Trump’s tweet provides unclassified, commercial satellite photos of the launch failure. They are a lot less detailed than Trump’s NRO imagery.

What is classification, anyway?

People with security clearances, those who work with classified secrets, are taught to look at secrecy as a binary property: the information is either classified and tightly controlled, or it’s not. Reality is much less solid, as shown by this cynical conjugation:

I declassify;
You leak;
He/she/it commits a felony.

There are laws against disclosing specific types of military- or intelligence-relevant information. There are no laws saying “It’s a crime to disclose any classified information.” To comply with the First Amendment, the laws have to outline a specific type of information that’s classified. For example, 18 USC § 798 forbids disclosure of classified “communications security” information by describing types of technical information to be protected. There are similar laws protecting the identities of covert agents.

Classification illustrates the Separation of Powers between the 3 branches of government. Secrercy through classification is an act of the Executive Branch. The President, select cabinet members, and others named primary classification authorities, may declare a secret to be classified. There is no real legislative or judicial oversight.

Getting back to the conjugation, any primary classification authority may classify some information. They may also declassify that information. The President of the United States is the primary authority for classifying – and declassifying – information. Thus, President Trump was exercising one of his official capacities when he declassified that photo. As Secretary of State, Hillary Clinton carried a similar authority.

People who “leak” are often senior administration officials who might or might not have classification and declassification authority. Less-senior leakers may work closely with a classification authority, and can use that relationship to avoid prosecution.

People at the bottom of the pyramid might be convicted of a felony under the Espionage Act, or classified information laws, like the crypto law cited earlier. Or not. Chelsea Manning and Reality Winner made the news and went to jail for leaking classified information. Daniel Ellsberg illustrates the exception: he leaked the top secret “Pentagon Papers” in 1971 but was never convicted of a crime.

While courts generally uphold the Executive Branch’s authority to classify whatever they want, prosecutions are rare. Court trials regarding classified information pose a nightmare for those keeping the secrets, since relevant information must be shared in court. Prosecutors may also face the risk of a conviction being overturned on First Amendment grounds.

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