Classifying the Side Deals May Be Illegal

Former intelligence analyst Fred Fleitz asks an excellent question about just why the Iranian side deals were classified.  “Classified from whom? Certainly not for Iran, since it is a party to the agreement.”  It is true that it is strange to classify a report that your enemy — and Iran still says it is our enemy — already knows about in full.  That is not the only problem with these deals being classified.  We need to ask the President and the State Department just how this decision was made.

The US Department of Defense’s Defense Security Service has an excellent primer on the law governing classification available from their Center for Development of Security Solutions.  As the primer points out, the President and major Secretaries have been granted “original classification authority,” that is, the authority to make the call that a piece of information must be classified.  The primer helps you understand when it is legal and appropriate to classify a document.

The very first question that has to be answered is whether the information is “official government information.”  “Without the Government having some proprietary interest in the information, classification is not an option.”  So, since the government classified this information, it is asserting a proprietary interest in it.  That means that the violation of the law involved in not providing these side deals to Congress cannot be defended on the most obvious ground:  that these deals are between Iran and the IAEA only, and therefore not covered by the law.  Rather, these deals are proprietary US government information.  Otherwise, they could never have been classified in accordance with our laws.

The information does pass the second test, as it is of a category appropriate to classification (“Foreign government information”).  But the third test is a problem.  The original classification authority is required to show that unauthorized release of the information will damage national security — American national security.  There is no potential damage from Iran finding out about the arrangement, because Iran made the arrangement to begin with.  We don’t risk damaging intelligence collection methods, because Iran already knows that we know as well as how we know.  What, then, was the damage to national security that was supposed to occur?

Again, from the official guide that the Defense Security Service has put out, “If it is determined that there is no potential for damage to national security, the information will not be classified.”

The other tests only come into play if these first tests have all been passed successfully.  It appears that the first and third tests are highly questionable.  Journalists and members of Congress should press to find out whether these tests were in fact properly met as required by law.  If the information was wrongfully classified, we should ask why.  As Fleitz points out, it was not to keep Iran in the dark.  Who were we hiding this information from, and just why?

In pursuing the answer to that question, keep in mind that there are several motives for classifying information that are explicitly illegal.  Again according to the guide, it may not be done in order to:

• Conceal violations of law, inefficiency, or administrative error

• Prevent embarrassment to a person, organization, or agency

• Restrain competition

• Prevent or delay the release of information that does not require protection in the interest of national security

Several of those appear as likely motives, but the last one especially.  No plausible harm to national security exists in revealing the terms of these diplomatic agreements.  If the motive was to delay the information coming to light until after the deal had been ratified by Congress, this classification was illegal.