8/12/2022

Classified Documents

Anyone with experience handling Top Secret information - which I did in the Marine Corps in Vietnam and during the Cold War - knows that you must be very careful handling the documents. You don't take them out of a secure area and move them to a storage box in your private home.  Do that and you can land in jail. I should note that my experience with highly classified documents ended in 1999, so my knowledge is dated.

Classified documents are closely held by appropriately trained people who hold security clearances.  They maintain documents with three levels of classification - Confidential, Secret, and Top Secret. When a classified document is removed from its safe and secure locations, the person removing the document must have the appropriate security clearance, and a need to know. They must sign for the document and who signed for that information is retained. The documents are supposed to be returned expeditiously and a record kept of that return.

The White House maintains a SCIF.  The US developed additional temporary SCIF's for Mar-a-Lago and for President Trump Tower, which would have been closed when the President left office. This enabled the President to read secure messages, and to maintain those documents in a secure location. The SCIF can also be used for secure meetings and phone calls. 



SCIF (Sensitive compartmented information facility)

When Donald Trump became president in 2017, a SCIF was set up at his Mar-a-Lago resort in Florida, which he referred to as his Winter White House. Trump (at the head of the table with various cabinet members, advisers, and staffers) is seen here monitoring the Syrian cruise missile attack from the Mar-a-Lago SCIF.

sensitive compartmented information facility (SCIF; pronounced /skɪf/), in United States military, national security/national defense and intelligence parlance, is an enclosed area within a building that is used to process sensitive compartmented information (SCI) types of classified information.

SCIFs can be either permanent or temporary and can be set up in official government buildings (such as the Situation Room in the White House), onboard ships, in private residences of officials, or in hotel rooms and other places of necessity for officials when traveling.[1] Portable SCIFs can also be quickly set up when needed during emergency situations.[2]

Access

Access to SCIFs is normally limited to those individuals with appropriate security clearances.[3] Non-cleared personnel in SCIFs must be under the constant oversight of cleared personnel and all classified information and material removed from view to prevent unauthorized access.[4] As part of this process, non-cleared personnel are also typically required to surrender all recording, photographic and other electronic media devices. All of the activity and conversation inside is presumed restricted from public disclosure.[1][5]

____________

President Trump's staff would have signed for and received Confidential, Secret, and Top Secret documents and messages and provided those documents to the President. After he read them he should have had his staff return the documents to the secure area, with a written record that they were returned.

No one of course is supposed to copy those documents, take photos of them, or keep them in their private offices or bedrooms. They should be returned expeditiously to a secure location. Failure to do so is a criminal offense.

The folks who maintained that classified information have logs of when and what documents were signed out by White House staff, and what and when the documents were returned.  It seems apparent from recent reporting that not all documents were returned.

It will be a simple investigation to interview under oath the people who maintained those documents and those who signed out for those documents.  Failure to have returned those documents is a Federal offense with rather strict punishments.

From reporting it is clear that not all documents were returned. After requesting the return of the documents President Trump did return some documents.  He did not return them all, however, resulting in a subpeona demanding the return of the documents. One of Trump's attorneys signed an affidavit guaranteeing that all documents were returned.

That was not the case.  The recent search of Trump's home revealed that he had more classified material at his home, including Top Secret documents.

Any normal person doing this would find himself in very hot water and likely facing jail time.  We will see if that happens with the former President.


Trump has offered a number of explanations:

1. The FBI planted the documents. The search was videotaped and this should be simple to verify.  And the chain of custody where the documents were signed out and then signed back in can provide a double verification. Trump can blame the staffer who signed for the documents that were not returned.  

2. Trump says he had a standing order that any document he took was automatically declassified. This is not how it works. If Trump decides he wished to declassify some information, his attorneys should have written the rationale for the declassification and inform the department that they propose to declassify the document. The agencies then have the opportunity to oppose the declassification if there are good reasons to keep the information a secret. And of course the context of the message counts here. If it was trully a momentous secret than he should not have declassified it.

The DOJ knows what documents that President Trump kept and that he says he declassified.  They will likely examine the documents and if there was a simple reason for why he declassified them then that explanation may be acceptable.  But this is unlikely.  It is classified Top Secret if it "reasonably could be expected to cause exceptionally grave damage to the national security."  The agencies do not place TS on a document lightly.

https://thehill.com/policy/national-security/3604437-trumps-declassification-claim-may-offer-limited-defense/?email=35e57319730c7897fe205537c4737366426dbd1c&emaila=675e5a99b2bd4b98d8dba1150588cc31&emailb=12298ff6d4febaf3d59a9c9233feae97b86cbe70e8808fe7cb0690887433cf80&utm_source=Sailthru&utm_medium=email&utm_campaign=08.16.22%20RZ%20The%20Hill%20News%20alert%20-%20Trump%20declassification%20defense&utm_term=News%20Alerts

Click to view:  https://www.cnn.com/videos/politics/2022/08/13/trump-search-warrant-espionage-act-laufman-ebof-vpx.cnn

_______

18 U.S. Code § 793 — "Gathering, transmitting or losing defense information."

The law penalizes "Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book ... or note relating to the national defense" who "through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or erso be lost, stolen, abstracted, or destroyed." It also penalizes someone who "willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it."

In this instance, the National Archives said it had been negotiating with Trump's team for the return of documents since last year, and Moss noted that Trump's lawyer acknowledged they met with Justice Department as recently as early June about records that were still missing. On Thursday, a source familiar with the matter confirmed to NBC News that Trump also received a federal grand jury subpoena demanding the return of sensitive documents the government believed he'd held onto.

_________

Why would anyone keep highly classified documents in their personal possession in their home, unless they were up to no good?  We will wait to see what is in the documents.

_______


Trump signs bill
President Donald Trump on January 10, 2018, signing a national security bill that included harsher punishments for mishandling secret information.Ron Sachs-Pool/Getty Images
  • Donald Trump in 2018 signed a sweeping national security bill into law.

  • The bill increased punishments for those who mishandle classified information.

  • The measure is of note after the Mar-a-Lago raid, thought to be connected to government documents.

A bill that Donald Trump signed into law in 2018 could be used to punish the former president if he's found to have mishandled classified information after leaving office.

FBI agents on Monday raided Trump's Mar-a-Lago resort in Florida, apparently as part on an investigation into whether Trump wrongly kept hold of classified material after he left office.

Bradley P. Moss, a national security attorney, told Insider that Trump could face five years in prison if he's found guilty under a national security bill that he signed as president.

Trump signed the bill, which made changes to the Foreign Intelligence Surveillance Act, into law in January 2018.

It upgraded the seriousness of wrongly moving classified material, turning it from a misdemeanor into a felony — and increasing the maximum sentence to five years, up from one.


______________






The FBI recovered 11 sets of classified documents while conducting the search of former President Trump’s Mar-a-Lago resort, The Wall Street Journal reported on Friday.

The Journal reviewed a three-page list of items that FBI agents took from the Palm Beach, Fla., property on Monday, revealing that they took about 20 boxes of items, binders of photos, a handwritten note and Trump’s grant of clemency to his former adviser Roger Stone, who was convicted in 2019 of lying to Congress, witness tampering and obstruction of an official proceeding.

The list refers to one set of documents as “Various classified/TS/CSI documents,” meaning top secret/sensitive compartmentalized information. It states that FBI agents acquired four sets of top-secret documents, three sets of secret documents and three sets of confidential documents.

The FBI reportedly sought documents containing information about nuclear weapons in the search, but it is unclear if the agency recovered any. The Journal reported that the list did not contain any additional details about what information was in the classified documents.

NewsNation separately reported that FBI agents had found dozens of classified documents during their search of Mar-a-Lago on Monday.

The list reported by the Journal was included in a seven-page document that also includes the search warrant the FBI executed mentions information about the “President of France.”

The warrant shows agents planned to search “the 45 Office” and “all storage rooms and all other rooms or areas within the premises used or available to be used by [the former president] and his staff and in which boxes or documents could be stored, including all structures or buildings on the estate,” according to the Journal.

_____________

Chapter 7.
CLASSIFICATION LEVELS

INTRODUCTION

A classification level must be assigned to information when that information is determined to be classified. A classification level indicates the relative importance of classified information to national security and thereby determines the specific security requirements applicable to that information. Clearly defined classification levels are essential to an effective classification system.1

The U.S. classification of information system has three classification levels -- Top Secret, Secret, and Confidential -- which are defined in EO 12356.2 Those levels are used both for NSI and atomic energy information (RD and FRD). Section 1.1(a) of EO 12356 states that:

(a) National Security Information (hereinafter "classified information") shall be classified at one of the following three levels:
    (1) "Top Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.

    (2) "Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.

    (3) "Confidential" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security.

https://sgp.fas.org/library/quist2/chap_7.html

 

______________

A few more things.  Way back in the dark ages, when I was in the Marine Corps Reserves, our Classified information was tightly controlled, especially Top Secret Info.  Each copy of the document was numbered 1 out of __X__ copies, and of course you were not to make copies of it or take photos of it. You read it if you had a need to know and then put it back in the proper safe in a facility set up for classified information. And you did not take notes on what was in the document and you did not share what was in the document with anyone who did not have a need to know.

The White House no doubt has such a facility, likely a very large room or rooms that are in affect a large safe where the classified information is kept.  And there is one on Air Force One, and temporary facilitie were created and maintained at Donald Trump's residences at Mar A Lago and Trump Tower. And there are people, probably military, with Top Secret security clearances, who keep track of the documents when they are read and returned. And if President Trump did not return them, which seems likely, the Custodian would have told his chain of command. And the officers in charge probably did nothing, since the person who had the classified information was the President.

But now he is the former President.  And the US Government wants its classified information back. And they will know exactly what is missing. And if President Trump no longer has those classified documents, he has some splainin to do.

---------------

The ways you can move Secret and top Secret documents is described below.  Note that none of them let you move it to your bedroom.

7-101 Top Secret Information

Top Secret information shall be transmitted only by:

    a. Direct contact between appropriately cleared persons.
    b. A cryptographic system authorized by the Director, NSA, or a protected distribution system designed and installed to meet the requirements of National Communications Security Instruction 4009. This applies to voice, data, message, and facsimile transmissions.
    c. The Defense Courier Service (DCS) if material qualifies under the provisions of DoD Regulation 5200.33-R. The DCS may use a specialized shipping container as a substitute for a DCS courier on direct flights provided that the shipping container is of sufficient construction to provide evidence of forced entry, secured with a high security padlock and equipped with an electronic seal that would provide evidence of surreptitious entry. A DCS courier must escort the specialized shipping container to and from the aircraft and oversee its loading and unloading. This authorization also requires that the DCS develop procedures that address the protection of specialized shipping containers in the event a flight is diverted for any reason.
    d. Authorized DoD Component courier services;
    e. The Department of State Diplomatic Courier Service;
    f. Cleared U.S. military personnel and Government civilian employees specifically designated to carry the information who are traveling on a conveyance owned, controlled, or chartered by the U.S. Government or DoD contractors traveling by surface transportation;
    g. Cleared U.S. Military personnel and Government civilian employees specifically designated to carry the information who are traveling on scheduled commercial passenger aircraft within and between the United States, its Territories, and Canada.
    h. Cleared U.S. Military personnel and government civilian employees specifically designated to carry the information who are traveling on scheduled commercial passenger aircraft on flights outside the United States, its territories, and Canada.
    i. Cleared DoD contractor employees within and between the United States and its Territories provided that the transmission has been authorized in writing by the appropriate Cognizant Security Agency (CSA) or a designated representative.

7-102 Secret Information

Secret information may be transmitted by:

    a. Any of the means approved for the transmission of Top Secret information;
    b. Appropriately cleared contractor employees provided that the transmission meets the requirements specified in DoD 5220.22-R and DoD 5220.22-M.
    c. On an exception basis, when applicable postal regulations (39.C.F.R.) are met, Agency Heads may, when an urgent requirement exists for overnight delivery to a DoD Component within the United States and its Territories, authorize the use of the current holder of the General Services Administration contract for overnight delivery of information for the Executive Branch. Any such delivery service shall be U.S. owned and operated, provide automated in-transit tracking of the classified information, and ensure package integrity during transit. The contract shall require cooperation with government inquiries in the even of a loss, theft, or possible compromise. The sender is responsible for ensuring that an authorized person will be available to receive the delivery and verification of the correct mailing address. The package may be addressed to the recipient by name. The release signature block on the receipt label shall not be executed under any circumstances. The use of external (street side) collection boxes is prohibited. Classified Communications Security Information, NATO, and foreign government information shall not be transmitted in this manner.
    d. U.S. Postal Service registered mail within and between the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico;
    e. U.S. Postal Service Express Mail within and between the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico. The "Waiver of Signature and Indemnity" block on the U.S. Postal Service Express Mail Label 11-B may not be executed under any circumstances. The use of external (street side) Express Mail collection boxes is prohibited.
    f. U.S. Postal Service registered mail through Army, Navy, or Air Force Postal Service facilities outside the United States and its Territories, provided that the information does not at any time pass out of U.S. citizen control and does not pass through a foreign postal system or any foreign inspection;
    g. U.S. Postal Service and Canadian registered mail with registered mail receipt between U.S. Government and Canadian Government installations in the United States and Canada;
    h. Carriers cleared under the National Industrial Security Program who provide a Protective Security Service. This method is authorized only within the Continental United States (CONUS) when other methods are impractical, except that this method is also authorized between U.S. and Canadian government approved locations documented in a transportation plan approved by U.S. and Canadian government security authorities.
    i. Government and Government contract vehicles including aircraft, ships of the U.S. Navy, civil service-operated U.S. Naval ships, and ships of U.S. registry. Appropriately cleared operators of vehicles, officers of ships or pilots of aircraft who are U.S. citizens may be designated as escorts provided the control of the carrier is maintained on a 24-hour basis. The escort shall protect the shipment at all times, through personal observation or authorized storage to prevent inspection, tampering, pilferage, or unauthorized access. Observation of the shipment is not required during flight or sea transit, provided it is loaded into a compartment that is not accessible to any unauthorized persons or in a specialized secure, safe-like container.
    j. In exceptional circumstances, with the written approval of the recipient government security authorities, classified material up to an including Secret may be transmitted outside of the United States and its Territories in the hold of a cleared U.S. registered air carrier ( Civilian Reserve Air Fleet participant) without an appropriately cleared escort. The shipment must be sent between two specified points with no intermediate stops. The carrier must agree in advance to permit cleared and specifically authorized persons to observe placement and removal of the classified shipment from the air carrier. The shipment must be placed in a compartment that is not accessible to any unauthorized person or in the same type of specialized shipping as is prescribed in subparagraph c. above, for use by the DCS.

https://irp.fas.org/doddir/dod/5200-1r/chapter_7.htm


______


The New York Times have written a good explanation about how Classified documents are declassified.

https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html



_______

When documents are declassified, there obviously must be a paper trail. Otherwise all the agencies that hold the documents will still consider them classified.

Documents can be declassified because of the passage of time, usually 25 years, or because the information no longer needs to be classified.  The documents then should be altered as shown below, noting that they are no longer classified and when and when they were declassified.








No comments: