Law & the Courts

Bill Barr’s Declassification Kerfuffle

Attorney General William Barr speaks at a news conference to discuss Special Counsel Robert Mueller’s report, in Washington, D.C., April 18, 2019. (Jonathan Ernst/Reuters)
The media panic notwithstanding, the buck still stops with the president.

Last week, President Trump conferred on Attorney General Bill Barr the authority to declassify documents relevant to his inquiry into what we can collectively call “the Russia investigation.” This includes not only “Crossfire Hurricane,” the counterintelligence probe formally opened by the FBI in late July 2016, but all of the relevant investigative threads, including those pursued by other intelligence agencies — such as the CIA’s collaborations with foreign intelligence services, beginning in 2015.

In other words, the public is about to learn a lot more about decision-making during the Obama administration. As night follows day, the Democrat-media complex went apoplectic. Gone are the days when the press always wanted more information because it perceived its role, vouchsafed by the Constitution, to be the public’s eye on government.

Much of the mainstream media is now in an all but openly declared partnership with one of our two major political parties. Consequently, when a Republican administration is in power or being questioned, classified leaks are the order of the day. When a Democratic administration is under the microscope, we get lectures on the wages of compromising intelligence secrets, especially methods and sources.

So, naturally, we are treated to hysterical reports that the attorney general — whose Justice Department cannot enforce the law effectively unless it can entice cooperation from reluctant sources — is going to expose covert operatives gratuitously, ensuring that no courageous spy or foreign intelligence service will ever risk cooperation with the United States again.

It is an absurd narrative.

Barr started his government career working for the CIA. As much as any AG in the history of the country, he grasps the nexus between covert intelligence-gathering and national security. Frankly, he grasps it better than the president does. He understands the inter-agency “equities” in our trove of defense secrets — not least, the commitments made to sources and foreign intelligence agencies, the assurances of confidentiality in exchange for cooperation. He is less apt than our mercurial president to direct a sweeping declassification order that would disregard these concerns.

So far, the heated discussion about this issue has been the reductive Manichean idiocy that all debate of complex issues becomes: Either our intelligence law-enforcement agencies must be completely immune from inquiry, or all classified information must be exposed such that we can no longer protect secrets or the country.

Things never actually work that way. There are always accommodations that respect the vital interests on both sides of the equation — political accountability and national security. Courts, for example, are called on in many cases to apply the Classified Information Procedures Act. It involves just this kind of line-drawing in the not-uncommon situations in which (a) the criminal law could not be enforced if the price tag of charging a defendant were the possibility that a court would erroneously order disclosure of defense secrets on due-process grounds; or, relatedly, (b) it would not be possible to have a fair trial if an accused were not given classified information that actually is essential to the defense.

It is almost always possible to disclose the information needed for some proper public purpose while safeguarding what must be kept secret. That is not to say it is always easy to do. Sometimes, in lieu of disclosing top-secret information, the government must acknowledge facts it would prefer not to acknowledge. In lieu of, say, identifying a specific confidential informant, the government might admit that it engaged in questionable behavior (such as investigative tactics that were too intrusive under the circumstances that obtained).

That’s an important distinction that has been lost in the public debate. Declassification is not the same thing as disclosure. The fact that an intelligence agency may be directed to declassify information so that investigators are permitted to see it does not necessarily mean the information will be made publicly available. Ultimate investigative conclusions will be made available, but some information (maybe a lot) will be withheld to protect vital intelligence (though made available to Congress — probably through senior bipartisan leadership and the relevant committees with security clearances). Think, for example, of the January 2017 Intelligence Community Assessment of Russia’s interference in the 2016 campaign. Most underlying intelligence remains concealed, but enough was declassified that a public report could be issued explaining the essence of what happened.

To argue that this cannot be done is to say that unelected government officials can do whatever they want, and the people’s representatives cannot question them. That’s dangerous and ridiculous.

Finally, the attorney general has been delegated only a sliver of the power that the president already had. There is nothing new here — in the sense that there is nothing Barr is now in a position to disclose that Trump was not already empowered to disclose. Barr will now have more influence over disclosure decisions, but even that is only a presumption.

Obviously, Barr would not willy-nilly disclose a national-defense secret without first hearing any and all objections from, most prominently, National Intelligence Director Dan Coats, CIA director Gina Haspel, and General Paul Nakasone, who runs NSA and the U.S. Cyber Command. Barr would no doubt carefully weigh any objections by FBI director Chris Wray, even though he is technically Barr’s subordinate. There is no reason to believe these highly experienced, competent officials, each of whom understands the competing interests, cannot work out most disagreements — something that happens every day in government, and that is unremarkable (at least when it does not involve matters the media-Democrat complex would rather keep concealed).

Furthermore, any irreconcilable disputes would still be brought to the White House. The declassification order ostensibly gives the AG the authority, for example, to tell the CIA to declassify some piece of top-secret information; but Barr is in no position to make it happen if the CIA objects. Only one executive-branch official has the power to fire subordinates for noncompliance.

I imagine Barr, who understands how the Constitution works, would be the first to tell you that Donald Trump cannot divest the chief executive of ultimate power over executive decision-making, and can withdraw the delegation to the AG at any time. The buck still stops with the president.

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