“If everyone were acting in good faith, it might perhaps be possible to resolve the classification issues in a reasonable amount of time, possibly a few weeks,” said Steve Aftergood, a classification expert who directs the Federation of American Scientists’ Project on Government Secrecy. “If people are not acting in good faith, the disputes could linger for months or longer.”
A prolonged review period could benefit the White House, which has sought to block Bolton from publicly testifying in the Senate impeachment trial about Trump’s withholding of military assistance aid to Ukraine. And experts said that while the pre-publication review process is supposed to be handled only by subject matter experts with a requisite need to review the materials, the politically explosive nature of Bolton’s claims may draw others into the mix.
“The records directorate should have the lead on pure classification questions, working as needed with the intelligence community,” said Joshua Geltzer, a former NSC lawyer who consulted on several pre-publication reviews while in government.
That is indeed what Bolton’s lawyer, Chuck Cooper, asked in his Dec. 30 letter to Ellen Knight, who heads the National Security Council office that handles classification review, urging her to limit access to the manuscript to “those career government officials and employees regularly charged with responsibility for such reviews.”
In a statement on Sunday, Cooper accused the White House of corrupting the pre-publication review process, implying that any leaks about the book came from the White House itself. Bolton’s team also noted that it sent just one hard copy of his book draft; the White House said in response that nobody outside the NSC had reviewed it.
Questions have emerged, however, about who else was briefed on the manuscript, and whether anyone improperly injected political considerations into the classification review.
Jack Goldsmith, a former head of DOJ’s Office of Legal Counsel, wrote this week that he can attest “from personal experience” that “the executive branch often circulates manuscripts submitted for prepub review widely, including to political officials, & it often asks for deletions for reasons having nothing to do” with the disclosure of classified information.
Those accusations gained new urgency after the president tweeted on Wednesday that Bolton had written a “nasty & untrue book” that contained “All Classified National Security.” Just hours later, CNN first reported that the White House had identified classified material in the manuscript.
Trump’s tweet followed a news conference last week in Switzerland, during which the president cited “national security” among the reasons he opposed Bolton testifying in the Senate impeachment trial. At the time, the remarks were interpreted as a signal that the White House would seek to block a potential Senate subpoena of Bolton.
“The problem with John is that it’s a national security problem,” Trump said. “If you think about it, John, he knows some of my thoughts. He knows what I think about leaders. What happens if he reveals what I think about a certain leader, and it’s not very positive, and then I have to deal on behalf of the country? It’s going to be very hard. It’s going to make the job very hard.”
Trump’s comments in Switzerland came a day before Knight, the NSC classification official, sent a letter to Bolton’s lawyer warning that the manuscript appears to contain “significant amounts of classified information,” including some at the TOP SECRET level that would need to be deleted prior to its publication.
On Wednesday evening, Cooper released his Jan. 24 response to Knight, urging her to speed up the review of Bolton’s chapter on Ukraine.
„We do not believe that any of that information could reasonably be considered classified,“ Cooper wrote in the letter, „but given that Ambassador Bolton could be called to testify as early as next week, it is imperative that we have the results of your review of that chapter as early as possible.
Two days later came Bolton’s bombshell: his allegation that the president told him in August that he wanted to keep withholding military aid from Ukraine until officials there pledged to investigate Joe and Hunter Biden—making Bolton the only firsthand witness to that request thus far. The story, published in the New York Times, raised the pressure on the White House and the GOP to clear Bolton’s book and allow him to testify in the impeachment trial. Some Republican senators subsequently have backed a plan to review the manuscript in a classified setting as they weigh whether to subpoena his testimony.
Analysts seized on the sequence of events to raise the possibility that the administration was blocking Bolton’s book for political reasons. It’s unlikely that Pat Cipollone, the White House’s top lawyer and his leading defense counsel in the president’s Senate trial, had been left in the dark, several noted.
“It is rare to have a White House counsel himself involved, but for Bolton I can’t believe they didn’t alert him,” said Geltzer. “We used to ensure politics played no role,” he added. “Only career NSC Records Directorate officials made the call. But now? It’s hard to know what’s happening at the Trump White House.”
Deputy White House counsel Patrick Philbin said on Wednesday that the White House counsel’s office “was notified” that Bolton’s manuscript was sitting at the NSC for review, but the president’s legal team has declined to say whether any of them were briefed on Bolton’s book draft before its details were made public.
Brad Moss, a national security lawyer who has represented officials going through the process, agreed that Bolton’s may be a special case. While the review is “supposed to be handled only by the subject matter experts who have a requisite need to review the materials, in reality, for something as politically controversial as this, there is little doubt that others have seen it too,” he said.
There’s little Bolton and his lawyer can do to speed up the process, Moss said. Under existing case law, he noted, they can only bring a lawsuit to challenge the reviewers’ classification determinations once the process is complete and a final decision is issued.
“There is a loophole some of us try to exploit—which is to bring an Undue Delay Claim, but that is just a mechanism to get them to finish the review,” Moss added. “I’ve had it take years in the past.”
A legal challenge can be effective in forcing the government’s hand, said Guy Snodgrass, a former aide to Defense Secretary Jim Mattis who brought legal action against the Pentagon last year for unduly holding up his manuscript during the review process. “The government knows they won’t win on the merits if withholding for political reasons,” Snodgrass said. “But they still require you to go through the hassle and pay the legal fees if you want to prevail.”
The broader problem, he said, is that the process can still “be easily abused” by political appointees.
Bolton’s associates say it’s unlikely, given his long career in national security, that he would not have a sophisticated grasp of what is and isn’t classified.
“There is zero chance that Ambassador Bolton would ever disclose any classified material that would hurt broader national security interests,” said Mark Groombridge, a former senior adviser to Bolton. He noted “that there is near unanimity on keeping operational details such as sources [and] methods classified.”
As national security adviser, Bolton was a senior classification authority second only to the president, Aftergood noted, so “his classification judgments would presumably be very well-informed.”
Bolton’s lawyer alluded to that last month, insisting to the White House upon submitting the book for review that his client “carefully sought to avoid any discussion in the manuscript of sensitive compartmentalized information („SCI“) or other classified information.”
Bolton’s book agents, moreover—Matt Latimer and Keith Urbahn—were aides to Secretary of Defense Donald Rumsfeld and have represented several former national security officials with high-level clearances, including former FBI Director James Comey and Snodgrass.
Urbahn said in a text message that his team had worked through classification issues “many times,” though he declined to specify how they had done so in Bolton’s case specifically. Nor did Knight’s letter detail which portions of the manuscript her office had deemed secret.
“Intellectually honest people can and do disagree on what else may be classified,” said Groombridge, who went on to speculate that some on the NSC may have considered “conversations and disagreements over policy matters as classified, particularly since it is likely those conversations would cast aspersions on others, notably the president.”
Still, said Moss, Bolton’s top-level security clearance and deep knowledge of classification issues would not have made him immune from having to run his book by the White House.
And a review of his manuscript would also likely be complicated by the fact that as national security adviser, Bolton was privy to multiple streams of classified information from different agencies, each of which could claim a stake in the review and insist on certain redactions, Aftergood noted.
“Legally, Bolton is significantly constrained by the non-disclosure agreements that he would have signed as a condition of his access to classified information,” Aftergood said. “Basically, he has already committed himself to comply with the prepublication review process.”
Bolton has offered to testify in the Senate’s ongoing impeachment trial of Trump if he is subpoenaed. But the White House has indicated that it would seek to block his testimony on the grounds that any relevant information he could provide is classified and/or subject to executive privilege.
One possible resolution could be for Bolton to testify in a closed session. “The Senate would then have the immediate benefit of his testimony, while the transcript of his remarks could be declassified for the public in due course,” Aftergood said.
It’s still unclear, though, whether Bolton will get to share his story with the Senate at all before the trial wraps up.
“We have to resolve in a couple of days if we need witnesses or not,” Sen. James Lankford (R-Okla.) told reporters on Tuesday. “This is an issue that’s outstanding that we don’t have a good way to be able to answer.”
Source: politico.com
See more here: news365.stream
