During my 30-year career in the Department of Justice, I litigated or supervised a great many cases defending the government’s decisions to classify information. Most of the cases dealt with records that had a clear connection to national security, intelligence, or sensitive military matters: records about the use of drones in counterterrorism activities, detainees at Guantanamo, and CIA interrogation, even photographs of Osama bin Laden’s body. While the government and whoever was seeking the records disagreed about whether the information was properly classified (or whether it had been publicly disclosed nonetheless), the connection to national security was obvious.
But there was no obvious connection to national security about the information that we learned last week the Trump Administration has ordered classified. The White House reportedly ordered the Department of Health and Human Services (HHS) to conduct meetings concerning the COVID-19 virus in a classified setting. Given that disseminating timely and accurate information to the public is a key component in any response to a pandemic, classifying discussions about a pandemic unfolding in the United States appears to be unprecedented. As a former HHS official noted, “it’s not normal to classify discussions about a response to a public health crisis.”
That is not to say that HHS, or its component the Centers for Disease Control and Prevention (CDC), may never classify information. One can imagine information (say, the location of virulent pathogens that could be used in a terrorist attack) that HHS and CDC must classify to protect national security. But from what we know of the COVID-19 meetings, they involve nothing of the sort. Admittedly, public information is thin. But we know that the meetings involved the government’s response to the emerging COVID-19 outbreak in the United States. It appears that the meetings involved the discussion of possible quarantines, since one of the officials barred from a meeting was a legal expert on the validity of quarantines, who then had to be consulted after the meeting. And the government has not articulated publicly any reason for classification, although one HHS employee said he was told it was because “it had to do with China”—hardly the type of specific justification I could have defended in court.
So: Is there a legal basis for classification of the information in these meetings? It’s hard to say definitively without more information, but there is reason to doubt that the Trump Administration is acting within the bounds of the law regarding COVID-19 classification.
The Legal Framework
Executive Order 13256 contains detailed procedural and substantive requirements for classification. Briefly, a “classification authority” must determine that disclosure of the information could be expected to cause damage to national security; the information must fall within a specified list of categories; and the government cannot classify information to hide wrongdoing or avoid embarrassment.
When the government must defend in court its classification decisions—typically in response to a request under the Freedom of Information Act (FOIA)—the government receives substantial deference when it asserts that information sought by a request is classified. Exemption 1 of FOIA requires the government to show that the information is “properly” classified, 5 U.S.C. § 552(b)(1); in applying that standard, courts allow the government to withhold the material if it can articulate a “logical” and “plausible” reason that release of the information can be expected to damage national security. In other words, the courts are not going to second-guess the government’s assessment of what national security requires or what damage the release of certain information might cause, but they will require the government to explain the basis of its determination in a way that makes sense.
What all of this means is that the government must articulate a logical and plausible reason that release will harm national security, and must explain how the information fits into one or more or the categories set out in the Executive Order. While it is possible that the government can meet this standard for small snippets of information discussed in the HHS COVID-19 meetings, it is unlikely the standard is satisfied for the bulk of what appears to have been discussed. And remember: excluding key experts from the COVID-19 meetings means that they’re unable to learn from and inform those entire discussions, not just any small classified portions.
Do COVID-19 Discussions Relate to “National Security”?
The touchstone of classification authority under Executive Order 13256 is “national security.” The Order’s three levels of classification are defined by the degree to which disclosure of the information could be expected to damage national security: Top Secret (“exceptionally grave damage to the national security”); Secret (“serious damage to the national security”); and Confidential (“damage to the national security”). And the classification authority assigning the level must be “able to identify or describe” the damage to national security.
The Executive Order defines “national security” as “the national defense and foreign relations of the United States.” That definition is admittedly vague, as courts have acknowledged, but it is not so vague as to preclude a commonsense application of these terms. “National Defense” has “a well understood connotation”; it refers to “the military and naval establishments and the related activities of national preparedness.” And “foreign relations,” even broadly interpreted, requires a connection to U.S. relations with foreign countries.
It is difficult to see how discussions about the appropriate response to COVID-19 in the United States relates to the national defense or foreign policy without interpreting those concepts so broadly that they lack any meaning. While the National Security Council (NSC), which is involved in the COVID-19 response, may have information worthy of classification, discussions regarding how the virus is spreading in the United States, the number of people infected or who might become infected as the virus spreads, the development of a vaccine, and what actions might be take in response (such as quarantines, cancellation of events, and public outreach) do not naturally fall within any reasonable definition of “national defense” or “foreign relations.” In my decades of defending the government’s classification decisions, I never saw a judicial decision acknowledging or even implying that keeping people safe from a naturally-occurring virus amounts to “national defense.” Other FOIA exemptions, of course, could conceivably shield some discussions surrounding the virus, such as privileged legal advice. But classification? I don’t see it.
The best that one can say for the Trump Administration’s approach is that a very small snippet of information might be subject to classification. Discussions with foreign governments about the global pandemic might fall within the realm of foreign relations. And internal discussion about the effect of the virus on military preparedness or how our enemies might use the pandemic against United States interests could conceivably be related to national defense – although one wonders why HHS would be leading the charge if that were the case. But it appears doubtful that discussions were limited to issues like those, if they were discussed at all. And it should be obvious that while the virus may have originated in China, it is absurd to use that to conclude that all discussions concerning the virus somehow relate to national defense or foreign relations.
To be sure, meetings that discuss classified material often are held in classified settings, even if not all of the conversation and communications during the meeting will touch on classified issues. But merely holding the meeting in a Sensitive Compartmented Information Facility (SCIF) does not automatically confer classified status on the information discussed. Nor would it make sense to exclude government experts from all parts of a meeting in which only a fraction involves classified information. Moreover, notes taken during the meeting regarding unclassified matters, or records concerning the discussions, are not classified unless the information meets the legal requirements.
Fitting COVID-19 Discussions into Required National Security Categories
Even if one could conclude that the HHS-led COVID-19 discussions related to “national security,” it would be hard to satisfy other important limits set out in the Executive Order. In addition to articulating the requisite level of damage to national security from release of the information, the classification authority must conclude that the information pertains to one or more of eight specified categories of information. That’s tough in this situation.
Most of the categories in the Executive Order are obviously inapplicable. No one could reasonably assert that COVID-19 meetings conducted by HHS involve “military plans, weapons systems of operations,” “intelligence activities,” or the safeguarding of nuclear facilities. And only the most feverish of conspiracy theories can posit that meetings regarding the government response to COVID-19 involves “the development, production, or use of weapons of mass destruction”— and even that far-fetched theory would not encompass discussions concerning efforts to respond to the virus.
The Executive Order’s other categories also provide little basis for classifying the information. It is proper to classify “foreign government information,” but there is no indication that the HHS-led COVID-19 meetings were limited to discussing information received from foreign governments, which still would have to be confidential to warrant a finding that disclosure would harm national security. And, as already discussed, it is unlikely that much (if any) of the information concerns “foreign relations or foreign activities of the United States.”
There are two categories that arguably might apply (after all, government lawyers are very good at finding legal justifications); but their application to the COVID-19 meetings is dubious at best. An agency can classify “scientific, technological, or economic matters relating to the national security.” And classification may be appropriate for “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security.” Again, it is hard to see how these categories would cover more than a small amount of discussions regarding COVID-19. Not all scientific and technological matters are covered: only those related to national security. So scientific discussions about the nature, danger, and spread of the virus do not fall within this category. And while the next category may cover discussions about America’s vulnerability to biological attack, discussions about the general inability of the U.S. health care system to handle the crisis do not “relat[e] to national security.”
Moreover, even if one of these categories applied, it remains a mystery precisely how release of COVID-19 discussions would harm national security. To be sure, a fertile imagination could dream up scenarios in which release of certain discussions could harm national security. If, for example, there were evidence that the virus was an act of biological warfare, or if the discussions concerned a plan to prevent enemies from taking advantage of the crisis to mount an attack, public awareness that U.S. officials were aware of these facts and taking steps to address them could conceivably damage national security. Or if U.S. officials received highly confidential communications from a foreign government on sensitive issues, and acknowledgment of the issue itself or the fact that the U.S. is corresponding with the government in question would harm foreign relations with other countries, there might be a case for classification.
But none of those potential scenarios appears to match reality. And even if any of these elements are real, they would not justify classification of matters such as the spread of the virus on U.S. soil and the ongoing efforts to mitigate that spread across the American people.
Prohibitions on Classifying Information for Certain Purposes
It’s not just that classifying COVID-19 meetings isn’t justified under the Executive Order; what’s worse is that classifying those meetings may run afoul of affirmative prohibitions contained in the Executive Order. The Order explicitly prohibits classification of information to
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) “restrain competition”; or
(4) “prevent or delay the release of information that does not require protection in the interest of the national security.”
In addition, “[b]asic scientific research information not clearly related to the national security shall not be classified.”
The media has reported that officials ordered the meetings classified simply to limit the number of people who could attend them and to prevent leaks. If that is true, classification would violate the express terms of the Executive Order prohibiting classification to “prevent or delay the release of information that does not require protection in the interest of national security.”
Because it has the benefit of deferential judicial review, the government usually wins when it defends in court withholding information as classified. But that deference, the Supreme Court has explained, is based upon a presumption that Executive Branch officials “have properly discharged their official duties.” That presumption, in turn, rests upon maintaining the longstanding credibility of the Executive Branch. When the day comes that the government presents a case for classification so shaky that it looks implausible, the courts will step in and begin taking a closer, more skeptical look at Executive Branch classification decisions. If the classification of the COVID-19 meetings ever goes to court, it will take a great deal of explanation—perhaps even imagination—to convince a court that the decision to classify all of the matters discussed is supported by the law.