A Damage Assessment of Trump's "Declassification Defense" (Just Security)

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Laurence Tribe
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This analysis will help “people comprehend the grievous harms to national security [that would result] from any [standing declassification] order” of the kind Trump’s defenders claim he issued. That “defense” itself describes a grave federal crime.

justsecurity.org
A Damage Assessment of Trump’s “Declassification Defense”
"It should be shocking to the American public and to jurors in a courtroom to hear such a line of defense to allegations of mishandling national defense information."
9:18 AM · Aug 29, 2022

https://www.justsecurity.org/82880/a-damage-assessment-of-trumps-declassification-defense/

On Friday, the Director of National Intelligence (DNI) Avril Haines informed Congress that her office will lead an “assessment of the potential risk to national security that would result from the disclosure of the relevant documents” that were housed at former President Donald Trump’s residence at Mar-a-Lago. We can already anticipate broad outlines of what such an assessment may find – not in terms of the substantive policy areas and intelligence product that the classified documents cover because that is currently unknown, but in terms of the sources and methods potentially compromised by such disclosures based on publicly available information about the classified material at issue.

In this article, I focus on a specific aspect related to the national security risks from the disclosure of such documents. I address on its own terms Trump and his allies’ claim that, while president, he issued either a general or standing declassification order that covered these documents. If that is to be the defense on which the former president relies in the court of public opinion or in a court of law, we should understand the national security implications that would flow from such a presidential decision. It should be shocking to the American public and to jurors in a courtroom to hear such a line of defense to allegations of mishandling national defense information. That justifiable shock can come, however, only if people comprehend the grievous harms to national security from any such order.

Documents at Issue

From the FBI’s perspective, the August search was productive. The property receipt provided to one of Trump’s attorneys documented that the FBI had retrieved numerous documents including “Various classified TS/SCI documents,” “Miscellaneous Secret Documents,” “Miscellaneous Top Secret Documents,” and “Miscellaneous Confidential Documents.” “Top Secret,” “Secret,” and “Confidential” represent the three categories used to designate information as classified under the current Executive Order governing the classification of national security information the disclosure of which reasonably can be expected to cause damage to the national security. Under the criteria of that Executive Order, “Top Secret” information, if released, could cause “exceptionally grave damage” to U.S. national security. We also know that the January retrieval of documents from Mar-a-Lago included “the highest levels of classification, including Special Access Program (SAP) materials,” based on a letter the National Archives sent to Trump’s lawyers. And that trove of materials from January also included Special Intelligence, signals intelligence (including intercepts derived from authorities under the Foreign Intelligence Surveillance Act), and human clandestine sources, according to the redacted Affidavit submitted to the magistrate judge.

Background: Sources and Methods and the Classification System

Sources and methods are the assets, techniques, programs, processes and capabilities used by the Intelligence Community to collect the substantive information that is analyzed, distilled, and provided to consumers of intelligence product ranging from the president of the United States, to cabinet secretaries, to high-ranking military officers, or to a platoon leader on the battlefield. Unlike substantive intelligence which is generally discernible from the intelligence report itself, intelligence sources and methods are usually not identified in an intelligence product. Consequently, many consumers possess little understanding of, or appreciation for, the fragility of the sources and methods used to produce any particular piece of intelligence and how those valuable, and perhaps irreplaceable, sources and methods might be compromised by a sophisticated foreign adversary coming into possession of the information that Trump and his allies now claim was “declassified” by his verbal “standing order.”

*snip*

[crickets]

1. Oh, it's bad. Even without the particulars, it's very bad.

Damn this man.

As intelligence professionals know, sources and methods represent some of the Crown Jewels of U.S. intelligence activities and often involve collection programs and capabilities acquired through billions of dollars of investment and development under the highest levels of security...

Unsurprisingly, someone in the thread accuses Laurence Tribe of communism. 🤦