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So I believe this is the latest and greatest rules on the subject: https://en.wikisource.org/wiki/Executive_Order_13526 https://en.wikisource.org/wiki/Executiv

by lsh123 5y ago

So I believe this is the latest and greatest rules on the subject: https://en.wikisource.org/wiki/Executive_Order_13526 https://en.wikisource.org/wiki/Executive_Order_13526 Reading section 3.1, Secretary of State has the power to declassify only the information that originally was classified inside that office. In my example above with a CIA briefing, only the CIA itself or the DNI can declassify it (ignoring automatic declassification because of time). And I’ll reiterate - I am sure there is a form 1234 one needs to fill in to actually declassify something.

lsh123 5y ago
BTW, I read the whole EO and it is surprisingly well written and makes a lot of sense for an official government rule book.
shadowgovt 5y ago
I see nothing in there specifically binding an acting Secretary of State, and since none have been prosecuted, I infer there is nothing to prosecute. You have to also factor in the National Security Act of 1947, which this EO does not supercede. At the level of Cabinet, mishandling of classified information is a political question, not a legal one. ETA: Forgot to mention, you also have to consider the actual statue, 8 U.S. Code § 798. That statute makes clear that exempt from the list of unauthorized persons are people cabinet members authorize. It seems self-evident that secretary Clinton authorized secretary Clinton (and her IT staff) to handle classified information. If one turns one's head and squints, I suppose the secretary could have been held accountable if classified information was leaked from the server to an unauthorized recipient. It didn't happen, so no way to know what the consequences might have been had it occurred.
- lsh123 5y ago
  Many topics so let’s break them one by one. “ I see nothing in there specifically binding an acting Secretary of State, …” Section 3.1 from EO 13526 describes the rules for declassification for US government. There are no exclusions for Cabinet or Secretary of State (notice that NDI has a subsection in the EO to cover expanded authority to declassify the information). “… and since none have been prosecuted” This is going back to “other people did it” argument. “You have to also factor in the National Security Act of 1947” I can’t find anything specific for this discussion. Which section are you referring to? “At the level of Cabinet, mishandling of classified information is a political question, not a legal one.” This is not the law. EO 13526 doesn’t make exceptions for Cabinet. It might be current political practice but I hope you agree this is not the right way to have high placed government official above the law (to be clear, I have no problem if the law or EO are changed to say that Cabinet or Secretary of State can declassify anything). “… secretary Clinton authorized secretary Clinton (and her IT staff)“ Could you please provide a pointer for such an authorization? I am sure there is a form one needs to fill in. BTW, I haven’t seen the argument yet that server in the basement was authorized to handle classified information. I would love to see the form that explains why it is not a problem. Should be a fun read. “… I suppose the secretary could have been held accountable if classified information was leaked from the server“ Notice that NSA employee was charged with retention of NDI in addition to sharing it with unauthorized recipient. The “leaking” of information to unauthorized party is not required for the prosecution.
  - shadowgovt 5y ago
    > This is not the law. EO 13526 doesn’t make exceptions for Cabinet They aren't necessary given that the underlying statute is predicated on the idea that the person accessing the classified information was unauthorized. > retention of NDI It's always hard from the reporting to find exactly what someone is being charged with, but I assume it's https://www.law.cornell.edu/uscode/text/18/1924 https://www.law.cornell.edu/uscode/text/18/1924. ... and we're back to the authorization issue. The relevant proviso in the law is "without authority." The Secretary of State has authority to authorize and authorizes herself, obviously. > I am sure there is a form one needs to fill in. There really isn't for a Cabinet secretary. You have to remember the underlying purpose of state secrets: to allow the executive to do its job in a world where secrets are necessary for that to be done. Whether the job is being done ultimately rests on the decision of the President (and, by delegation, the Cabinet). Here's a minimum viable authorization. "Hey Hillary, sounds like your IT guy might be privy to state secrets. Is he authorized to view them?" "Yes Mr. President." "Okay then." One could make the argument that violates his EO because it doesn't follow the formal, documented protocol... Except it's his EO. Whether it's violated rests with the judgement of the President. On this topic specifically, it really is up to the President whether the Secretary of State has mishandled classified information. The back-stop to that is impeachment of said President and the judgment of the American people (the People were, apparently, dissatisfied with Clinton's behavior on this subject, and she was not elected President. Justice done).
    - lsh123 5y ago
      “ The Secretary of State has authority to authorize and authorizes herself, obviously.” I agree that according to EO quoted above this is true for declassifying information originally classified by the State Department. I would appreciate if you can point me to the laws/EO/… that authorizes Secretary of State to declassify the information originally classified by another government agency (e.g. CIA). “ Here's a minimum viable authorization.” Could you please provide pointers that confirm that some kind of authorization by Mr President took place? I would accept pointers to verbal quotes from either Mr President or Hillary. Bonus point - have this authorization happen before classified information was leaked to unauthorized personnel or systems.
- throw7 5y ago
  "mishandling of classified information is a political question, not a legal one." I think we often understand we are under a rule of law. We are. But not them.
  - lsh123 5y ago
    You can also continue along the same lines: “At the cabinet level, accepting bribes is a political question, not a legal one” “At the family of the president level, accepting bribes is a political question, not a legal one” … Just wonder, where should we draw the line before we become yet another banana republic?
    - shadowgovt 5y ago
      Hypothetically, we draw the line by refusing to continue to re-elect a Congress that refuses to do its job.
  - shadowgovt 5y ago
    As we observed in the past four years, the rule of law includes the idea that the guy in the big chair in the Executive has broad, sweeping pardon powers. Including, possibly, an untested authority to self-pardon for criminal activity. That is rule of law. It's possible for the law itself to be bad, of course.
    - lsh123 5y ago
      President’s pardons are part of the presidents powers as defined by laws. I would have no problem if Mr President pardoned Hillary for her misuse of classified information, etc. This is not ethical from my pov but it is legal. Edit: I would also have no problem with Mr President pardoning the NSA employee from the parent post.
      - shadowgovt 5y ago
        The shortcut we usually see is the Judiciary will not press the issue when it's obvious the President will just pardon the offender (waste of taxpayer money to do so). As "Will the President just pardon" is often back-room knowledge, it isn't necessarily something that comes up in the public-facing conversation all the time. But this is why the entire question of whether the Secretary of State broke the law is something Congress would have to press in the first place.

by lsh123 5y ago

lsh123 5y ago

BTW, I read the whole EO and it is surprisingly well written and makes a lot of sense for an official government rule book.

shadowgovt 5y ago

I see nothing in there specifically binding an acting Secretary of State, and since none have been prosecuted, I infer there is nothing to prosecute. You have to also factor in the National Security Act of 1947, which this EO does not supercede. At the level of Cabinet, mishandling of classified information is a political question, not a legal one. ETA: Forgot to mention, you also have to consider the actual statue, 8 U.S. Code § 798. That statute makes clear that exempt from the list of unauthorized persons are people cabinet members authorize. It seems self-evident that secretary Clinton authorized secretary Clinton (and her IT staff) to handle classified information. If one turns one's head and squints, I suppose the secretary could have been held accountable if classified information was leaked from the server to an unauthorized recipient. It didn't happen, so no way to know what the consequences might have been had it occurred.

lsh123 5y ago
Many topics so let’s break them one by one. “ I see nothing in there specifically binding an acting Secretary of State, …” Section 3.1 from EO 13526 describes the rules for declassification for US government. There are no exclusions for Cabinet or Secretary of State (notice that NDI has a subsection in the EO to cover expanded authority to declassify the information). “… and since none have been prosecuted” This is going back to “other people did it” argument. “You have to also factor in the National Security Act of 1947” I can’t find anything specific for this discussion. Which section are you referring to? “At the level of Cabinet, mishandling of classified information is a political question, not a legal one.” This is not the law. EO 13526 doesn’t make exceptions for Cabinet. It might be current political practice but I hope you agree this is not the right way to have high placed government official above the law (to be clear, I have no problem if the law or EO are changed to say that Cabinet or Secretary of State can declassify anything). “… secretary Clinton authorized secretary Clinton (and her IT staff)“ Could you please provide a pointer for such an authorization? I am sure there is a form one needs to fill in. BTW, I haven’t seen the argument yet that server in the basement was authorized to handle classified information. I would love to see the form that explains why it is not a problem. Should be a fun read. “… I suppose the secretary could have been held accountable if classified information was leaked from the server“ Notice that NSA employee was charged with retention of NDI in addition to sharing it with unauthorized recipient. The “leaking” of information to unauthorized party is not required for the prosecution.
- shadowgovt 5y ago
  > This is not the law. EO 13526 doesn’t make exceptions for Cabinet They aren't necessary given that the underlying statute is predicated on the idea that the person accessing the classified information was unauthorized. > retention of NDI It's always hard from the reporting to find exactly what someone is being charged with, but I assume it's https://www.law.cornell.edu/uscode/text/18/1924 https://www.law.cornell.edu/uscode/text/18/1924. ... and we're back to the authorization issue. The relevant proviso in the law is "without authority." The Secretary of State has authority to authorize and authorizes herself, obviously. > I am sure there is a form one needs to fill in. There really isn't for a Cabinet secretary. You have to remember the underlying purpose of state secrets: to allow the executive to do its job in a world where secrets are necessary for that to be done. Whether the job is being done ultimately rests on the decision of the President (and, by delegation, the Cabinet). Here's a minimum viable authorization. "Hey Hillary, sounds like your IT guy might be privy to state secrets. Is he authorized to view them?" "Yes Mr. President." "Okay then." One could make the argument that violates his EO because it doesn't follow the formal, documented protocol... Except it's his EO. Whether it's violated rests with the judgement of the President. On this topic specifically, it really is up to the President whether the Secretary of State has mishandled classified information. The back-stop to that is impeachment of said President and the judgment of the American people (the People were, apparently, dissatisfied with Clinton's behavior on this subject, and she was not elected President. Justice done).
  - lsh123 5y ago
    “ The Secretary of State has authority to authorize and authorizes herself, obviously.” I agree that according to EO quoted above this is true for declassifying information originally classified by the State Department. I would appreciate if you can point me to the laws/EO/… that authorizes Secretary of State to declassify the information originally classified by another government agency (e.g. CIA). “ Here's a minimum viable authorization.” Could you please provide pointers that confirm that some kind of authorization by Mr President took place? I would accept pointers to verbal quotes from either Mr President or Hillary. Bonus point - have this authorization happen before classified information was leaked to unauthorized personnel or systems.
throw7 5y ago
"mishandling of classified information is a political question, not a legal one." I think we often understand we are under a rule of law. We are. But not them.
- lsh123 5y ago
  You can also continue along the same lines: “At the cabinet level, accepting bribes is a political question, not a legal one” “At the family of the president level, accepting bribes is a political question, not a legal one” … Just wonder, where should we draw the line before we become yet another banana republic?
  - shadowgovt 5y ago
    Hypothetically, we draw the line by refusing to continue to re-elect a Congress that refuses to do its job.
- shadowgovt 5y ago
  As we observed in the past four years, the rule of law includes the idea that the guy in the big chair in the Executive has broad, sweeping pardon powers. Including, possibly, an untested authority to self-pardon for criminal activity. That is rule of law. It's possible for the law itself to be bad, of course.
  - lsh123 5y ago
    President’s pardons are part of the presidents powers as defined by laws. I would have no problem if Mr President pardoned Hillary for her misuse of classified information, etc. This is not ethical from my pov but it is legal. Edit: I would also have no problem with Mr President pardoning the NSA employee from the parent post.
    - shadowgovt 5y ago
      The shortcut we usually see is the Judiciary will not press the issue when it's obvious the President will just pardon the offender (waste of taxpayer money to do so). As "Will the President just pardon" is often back-room knowledge, it isn't necessarily something that comes up in the public-facing conversation all the time. But this is why the entire question of whether the Secretary of State broke the law is something Congress would have to press in the first place.