No One (should be) Above the Law

Power and privilege are not legal immunity to put America’s precious intelligence assets at risk

Photo of highly classified documents seized from former President Donald Trump’s Florida home included in the Department of Justice court filing.

“…From everyone who has been given much, much will be demanded; and from the one who has been entrusted with much, much more will be asked.” — Luke 12:48

I was in a Sensitive compartmented information facility (SCIF) in the middle east in 2002 receiving a top secret / sensitive compartmented information (TS/SCI) briefing on potential future military operations which included specific enemy targets and what exactly we knew about them. I noticed an Army Colonel was taking notes on his Palm Pilot. After the briefing, he slipped the device into his cargo pocket. As the briefing ended, I stood between the Colonel and the exit and kindly asked the senior officer to place the item in one of the SCIF’s many secure safes. He immediately tried to pull rank and said, “Lieutenant, please move out of my way.” I firmly replied, “I will sir, as soon as you put the device containing classified intelligence in a safe.” Visibly upset, he implored, “Who do you think you are?!” Doing my best to remain calm, I said, “It doesn’t matter who I am, but since you asked, I am a Marine Corps Counterintelligence Officer with the authority to enforce our laws on the treatment of our classified information.” This was one of only two times in my military career where I had to show someone my credentials in order for them to do the right thing. Both instances involved more senior ranking officers who tried to use their rank as some kind of privilege or immunity to the laws.

In the military, there is a saying, “Different spanks for different ranks.” It essentially means that the more senior you were, the less harsh the punishment was likely going to be for the same crime. It was a negative reality that reflected poor leadership by the military justice system. It was the exact opposite of the role modeling you would expect. You would think that the MORE senior you were, the MORE accountable you should be — you should know better and set the example for the troops. Unfortunately, I saw a highly qualified and decorated young Warrant Officer be removed from leading his team in to combat because his team lost an encrypted radio during a training exercise. They eventually found it, but the Commander insisted someone be punished. I saw a highly trained and capable enlisted man be thrown into the brig (military prison) for improperly destroying classified material that was assumed lost. There was no threat of a leak or even loss of the information as he was working in a SCIF and it was found and destroyed in the secure compound. However, the fact that he lost it and destroyed it to cover it up, cost him his career and landed him behind bars.

When it comes to the proper treatment of classified information, more senior military officers and government officials should be held to a HIGHER standard. Not only do they know better but they are surrounded by people who know better and that should be constantly helping their boss adhere to the laws and truly put America’s interests first. Top secret intelligence is distinguished from Secret intelligence in that the public availability of Top Secret could lead to “exceptionally grave damage” to national security versus “serious damage” for Secret intelligence. This distinction is really about protecting our sources and methods of intelligence collection and preventing adversaries from disrupting future collection operations or using those assets against us. Secret information is almost always detached from the where, who, and how the intelligence was collected. Top Secret information, especially SCI, can start to be tied back to a source or an asset. Revealing this to our adversaries is much worse than turning over the intellectual property of our companies to foreign competitors. Why is it worse? Because many times there are human sources involved and those human sources risk their lives to get us access to this intelligence. Once sources and methods are revealed, often times the human sources are arrested, imprisoned, and many times tortured, and even executed.

Our signals intelligence and imagery intelligence assets are a technological and competitive advantage we invest heavily in (with our taxpayer dollars) to have better insights than our adversaries. We often use this information for early detection of hostilities and threats against U.S. interests at home and abroad. Many attacks and bad actors are stopped BEFORE they do us harm because of this. If our adversaries know how we detect and disrupt their hostile activities, then they could circumvent them. Foreign intelligence services and terrorist organizations make it a top priority to discover who and how we collect intelligence on them. Carelessness with our most important secrets, our sources and methods, can and has cost us countless lives. Or as the American World War II posters said, “Loose Lips Sink Ships.” Willful disobedience to properly protect this information in accordance with the law is certainly a crime. Whether you are the Secretary of State or the President of the United States, you have a sworn obligation to the safety and security of all Americans to treat this information with the utmost confidentiality and care.

The idea that this information could simply be declared unclassified by presidential fiat is ridiculous for two big reasons. First, even though an acting President has classification authority, there is a specific process for how this information can be declassified. It has to go through reviews with the intelligence community, the specific agencies and program leads (for SCI), and our allies (when they are involved) to carefully weigh and consider the potential damage to our national security by making it publicly available. Second, even if it was legally doable, it would be extremely reckless and un-American to make this kind of intelligence information instantly available as it puts at risk the lives of numerous human sources and our technological advantages against our adversaries. And, as a private citizen, you certainly cannot claim that these assets, owned by the American people, are somehow yours.

It is high time for those who have been given great power to also be held accountable for failing at one of their greatest responsibilities.

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Nate Boaz

Nate Boaz

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Dad, dog lover, Marine veteran, Author, Ex-McKinsey Partner, Ex-Accenture SMD, Harvard MBA, USNA alum.