The Volokh Conspiracy
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The Jan. 6 committee exposed norm-breaking in surprising places. Take the conduct of Joint Chiefs of Staff Gen. Mark Milley, who abused the classified information system to hide information about how the Pentagon reacted to the Capitol riot. In my latest piece for Lawfare, I argue that Gen. Milley's conduct overclassified information in violation of the relevant executive order. Worse, it may have prejudiced some of the Jan.6 defendants and denied FOIA access to the most important DOD documents about that day. The press and Congress bitterly criticized a similar handling of the Trump-Zelensky phone transcript, but it's been silent about Gen. Milley. Excerpts from Lawfare below.
Here's Gen. Milley's candid statement about what he did:
The document—I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It's not that the substance is classified. It was[.] I wanted to make sure that this stuff was only going to go [to] people who appropriately needed to see it, like yourselves. We'll take care of that. We can get this stuff properly processed and unclassified so that you can have it … for whatever you need to do.
In short, Milley overclassified those records to keep them from leaking—to make sure that the Pentagon and those investigating Jan. 6 would control the story.
By now, this story should sound eerily familiar. In 2019, President Trump held a phone call with President Volodymyr Zelenskyy of Ukraine. The call was immediately controversial inside the administration, and White House staff quickly restricted access to the call's transcript by moving it to a server designed to protect highly classified intelligence activities. That move attracted press attention that was harsh, breathless, and extensive—even though such transcripts are usually classified, just not at a level that justifies use of the intelligence activity server. Former CIA Director Leon Panetta said that the use of a top-secret system was "clearly an indication that they were at least thinking of a cover-up if not, in fact, doing that. It's a very serious matter because this is evidence of wrongdoing." After considerable delay, the Trump White House released the transcript publicly, and one official acknowledged that it had been a mistake to move the transcript to a highly classified system.
That was the right answer. Overclassifying government records because of their political sensitivity is a direct violation of the executive order that governs classification. The order, signed by President Obama, says, "In no case shall information be classified in order to prevent or delay the release of information that does not require protection in the interest of national security."
This is an important principle. Classifying information because it's politically sensitive, however appealing it may be to government officials in the moment, undermines the public trust on which the entire system of national security secrecy rests.
But even setting aside the principle of the thing, overclassification is not a victimless crime. Take Milley's decision to withhold records of the Pentagon's response to Jan. 6. It raises serious questions that the chairman wasn't asked in his testimony and that haven't been answered since.
- How long was this material locked up? Milley testified on Nov. 17, 2021, almost a year after Jan. 6, and he gave a clear impression that he was disclosing the Pentagon timelines and their underlying information for the first time.
- Who was entitled to earlier access to the information he withheld? By the time of his testimony, many Jan. 6 defendants had already been charged. Many had already pleaded guilty. With exceptions I'll get to, criminal defendants have a right to know about government records that would help them to defend themselves. It is not far-fetched to think that the overclassified records would have helped some of these defendants. To take one example, some defendants urged their compatriots to prepare for violence on that day. In an effort to take some of the sting out of their statements, many are claiming that they expected violence not from their allies but from their opponents on the left. This claim would be bolstered by evidence, referenced by Milley, including records showing that national security officials saw a serious risk of antifa and BLM attacks on Jan. 6, particularly the national security adviser's belief that "the greatest threat is going to come from Antifa and Black Lives Matter assaulting the protesters."
- Did Milley's overclassification of these records deprive the defendants of access to this information?
- What about Freedom of Information Act (FOIA) requests? As Milley makes clear, "almost all" of the substance of the material isn't classified at all. Did his overclassification of this information delay disclosure of important insights about the Pentagon's actions on Jan. 6?
I frequently defend broad national security authorities for government. That's because I've seen some of the threats the government faces. But if it wants to keep those authorities in a time of deepening public suspicion, the government must show that it has internal checks and real accountability to prevent abuse.