For decades, presidents and their appointees have misused the classification system to conceal waste, fraud, abuse, and even criminal conduct, failing to properly manage classified federal records generally.
That is why a new bipartisan effort to deal with this major executive branch misuse of power is both remarkable and welcome.
The solution offered by Senate Homeland Security and Government Affairs Committee Chairman Gary Peters (D-MI) and senior Senate Judiciary Committee and Select Intelligence Committee member John Cornyn (R-TX) is the Classification Reform for Transparency Act of 2024 (S. 4648). If enacted the bill would, for the first time in U.S. history, prohibit an executive branch official from misusing the federal government’s document classification system to hide various forms of misconduct.
When I testified before Chairman Peters’ committee in March 2023, this was among my top three reform recommendations, and I’m deeply grateful Senators Peters and Cornyn have embraced the overarching idea because it’s been badly needed for literally decades. While there are literally dozens of examples to justify such a change in law, just two from the post-9/11 era should suffice to make the point.
As I’ve testified elsewhere, in the days immediately following Al Qaeda’s terrorist attacks on America, then-National Security Agency (NSA) Director General Michael Hayden authorized NSA personnel to intercept all communications between the U.S. and Afghanistan for a 30-day period. There was just one very big problem: under the Foreign Intelligence Surveillance Act (FISA), Hayden had no lawful, unilateral authority to take such action.
Hayden needed to go to the Foreign Intelligence Surveillance Court (FISC) and get approval for such electronic eavesdropping since it clearly implicated the Fourth Amendment rights of Americans. Instead, he ordered the surveillance anyway and used the classification system to keep his decision from becoming public – a tactic that worked for over four years until the New York Times exposed it in December 2005. That revelation sparked an over two-year battle to make Hayden’s illegal mass surveillance program nominally constitutional (at least in the view of federal courts), which is how we got the controversial and still serially-violated 2008 FISA Amendments Act.
The second example involves Julian Assange and WikiLeaks.
Hellbound and Down 