If you think the Clearinghouse is missing something, please send recommendations for additional content by email to lte@justsecurity.org.

In terms of Just Security’s own analytic content, readers may be interested in the “Model Prosecution Memo for Trump Classified Documents,” and an interview with some of the model prosecution memo’s co-authors, Andrew Weissmann, Joyce Vance, and Ryan Goodman, on the Just Security podcast. 

We hope you find valuable the collection of material below. The Clearinghouse will be continually updated.

The post Trump Classified Docs Clearinghouse: All Key Documents in the Special Counsel Investigation appeared first on Just Security.

The sanctions raise important questions: Is this enough action from the United States? Was this the right strategy? What more should be done? EJ Hogendoorn and John (JP) Prendergast are two leading experts on the conflict. They’ve worked for U.S. Special Envoys to Sudan, run U.S. interagency processes on Sudan, negotiated with Sudanese leaders, and worked for the same international NGO – but they have different views on the way forward. The dialogue below highlights their ideas and puts them in debate with each other.

 John “JP” Prendergast: EJ, we largely agree on the causes of Sudan’s implosion, but we have a major divergence on what to do about it. Since much has been written already about the causes, and very little about solutions, I’d love to dive into the substance of our policy disagreements and see if we can help shed light on some serious options for what can be done about Sudan’s metastasizing crisis.

I’d like to start with what should be the fundamental objective of U.S. policy. Of course, we agree that the United States – working with key allies – should continue to do all it can to secure a humanitarian ceasefire, though current efforts have yielded little in that regard. But I don’t think the only objective of U.S. policy should be another framework agreement between the armed factions creating a transitional administration leading eventually to a civilian-led, democratic government. Such an agreement, based on a hope and a prayer, would allow the warlords currently tearing the country apart to have time to consolidate their positions while international attention eventually shifts away from Sudan, giving them the opportunity to undermine any such transition down the road. Thus, I think U.S. policy should instead be aimed at undermining and ultimately dismantling the kleptocratic cabals run by the two principal warlords – General Abdel Fattah Burhan, who heads the Sudan army (SAF), and General Mohamed Hamdan Dagalo (known as “Hemedti”), the leader of the paramilitary Rapid Support Forces — who have built up huge commercial monopolies and hijacked Sudan’s government and economy.

EJ Hogendoorn: JP, I agree that the ultimate objective should be an accountable, democratic government – which most Sudanese want – and that many of Sudan’s current elite are undermining this objective to protect their positions and ill-gotten wealth. It will be the task of a transitional government to prepare for a credible election, draft a constitution for this new government, and put in place the institutional reforms that limit the power of the kleptocratic old guard, begin to address corruption, and create a level economic playing field necessary for the country’s economic development.

Where we diverge is how we get there. My first concern is to quickly and sustainably stop the fighting. If we do not do so quickly, I fear that we could have an entrenched, multifaceted civil war that would be an unmitigated humanitarian catastrophe, destabilize the region, and produce an even more massive surge of refugees—so far 1.4 million Sudanese are displaced, with hundreds of thousands of refugees in neighboring Egypt, Chad and Ethiopia. I would argue that focusing first on dismantling kleptocratic networks would detract from the effort to stop the fighting and can be deferred until we get to a transitional government. We have both seen this civil war scenario before in Sudan, and in the region. It will take time to dismantled corrupt networks – time we do not have.

JP: Of course, stopping the fighting should be priority number one, but frankly that could take months if not years, given how committed both sides are to the death spiral they’ve put the country into. I fundamentally don’t believe that there can be a stable, somewhat peaceful transition to a democratic government that involves the current leaders of the two warring parties. And there is no way these warlords can be sidelined without finally, for once, going after the kleptocratic networks that have cemented this violent autocratic system in place.

The U.S. government doesn’t have to lead the peace negotiations, as it has been doing with Saudi Arabia – unsuccessfully, I might add. There are plenty of regional powers who have a demonstrated capacity to manage a negotiations process, such as Kenya, some of the Gulf states, or the African Union. I believe the comparative advantage of the U.S. would have it play a different role. The U.S. is uniquely positioned to lead what USAID calls a “dekleptification” strategy, aimed at dismantling or at least undermining the corrupt system over which the warlords are fighting. For years the U.S. has helped lead mediation efforts in Sudan, and look where we are. The system in Sudan is “too deformed to be reformed,” as many Sudanese have argued throughout the years.  While engaged in deep mediation, the U.S. diplomats leading these efforts have argued against using the targeted financial tools of pressure that could address the corrupt system, worrying that such escalation would undermine U.S. negotiating access.

Sudan’s military leaders will not hand over power to civilians, will not diversify the economy, will not stop using extreme violence and repression to maintain the status quo, and will not move in any positive direction unless their calculations are altered through painful financial consequences.

That is why the Biden administration’s sanctions package is so important.  Finally, a price will be paid for profiting from immense human misery.  But this should just be a first step in an escalating strategy of financial pressure on the leaders of these warring parties and their commercial interests.

EJ: JP, I agree with your concerns about the structural problems with the Sudanese state, which have led to chronic armed insurgency. However, I think that we should sequence the application of financial pressure more strategically, and if we do so we can stop the fighting in Khartoum quite quickly. The Rapid Support Forces (RSF) is a mercenary force that was able to grow rapidly because its leader, Mohamed Hamdan Dagalo better kown as Hemedti, gained control of several gold-producing areas in Sudan and because the Gulf states paid him millions of dollars a month for the RSF’s services in Yemen, fighting the Houthis. His troops fight for money, not a purpose, and many will melt away if they are not paid their salaries. Note that one of the companies sanctioned by the U.S. is Al Junaid Multi Activities, controlled by Hemedti’s family, which is heavily involved in gold production and export, particularly through the Dubai Gold and Commodities Exchange in the UAE.

I have a rough logic and timeline that I would argue could be the basis for a strategy to end the conflict and put Sudan back on the right path. Right now, the two “armies” are relatively equal, although the Sudan Armed Forces (SAF) have the advantage in heavy weapons and likely Arab support. I hope we both agree that a stalemated conflict would be the worst outcome, because it would lead to a long and bloody war. More controversially, I contend that to end the conflict quickly we should help one side prevail by applying more financial pressure on the other.

Because of the rough balance of power between the two forces, I maintain that the least bad option for external actors is to help the SAF by focusing more attention and financial pressure on the RSF-affiliated companies. Importantly, this pressure would need to be applied by the U.S. and its Gulf partners, particularly the UAE and Saudi Arabia, where the RSF has very large bank accounts and business interests. Once the RSF realizes that it is losing, it will hopefully agree to peace and quickly integrate into the SAF. After all, an effective government cannot have two independent armies.

Then negotiations to restore a civilian government-led transition would resume. In this phase, external actors would put more financial pressure on the SAF to honor its pledge to hand over power. I think one lesson from the current fighting and Sudan’s history is that a military dictatorship cannot stabilize the country and would lead to more armed unrest. Once a civilian government is restored, it could focus on drafting a permanent constitution, preparing for elections, and initiating a few economic reforms designed to limit corruption and put the economy back on track. Last, but not least, elections would be held in 1-2 years, leading to a fully mandated and legitimate government that can institute more reforms.

JP: Ironically, until recently, my colleagues and I at The Sentry had been arguing exactly that, ever since former Sudanese President Omer al-Bashir was overthrown in 2019. The RSF’s role in Darfur’s violence, its killing of protesters in Khartoum, its open alliance with Russia’s Wagner Group and Libyan warlord Khalifa Haftar (among others), and its violent monopolization of gold smuggling out of Sudan made its leadership a prime candidate for Global Magnitsky or other types of targeted sanctions. But over the past year, it has become screamingly obvious that General Burhan and the army leadership are as opposed to a democratic transition as General Hemedti and the RSF leadership. So, a pox on both houses is in order.

Both the RSF and the SAF are the main opponents of a civilian-led democracy. They both have built monopoly control over key sectors of Sudan’s economy, and they both are responsible for mounting war crimes with each passing day. I do not believe the U.S. should take sides in this conflict. I think we should be leading international efforts to impose network sanctions on the leaders of both cabals, their shell companies, and their enablers and facilitators in the international financial system.

In fact, the U.S. should take a side, just not the one you are proposing. We should be ramping up support for the extraordinary pro-democracy people’s movement that for years has worked for systemic change in Sudan, including the neighborhood-based Resistance Committees. The absence of civilians in the current process and the emphasis on accommodating the interests of those with the biggest guns simply empowers and entrenches the warlords and moves Sudan further away from any chance at stability and decent governance.

EJ: I agree that the leaders of both the RSF and the SAF have a lot to answer for and that the end goal is to empower the millions of peaceful protestors who have sacrificed so much to achieve “freedom, peace and justice,” but again, I would argue that the priority is to stop the fighting before Sudan collapses into a patchwork of warlord-controlled fiefdoms. We have both seen how long civil wars can last, even when sanctions are applied and without other countries fueling the conflict, and the enormous humanitarian toll of even a simmering civil war. Neighboring South Sudan is a case in point. A United Nations arms embargo and targeted sanctions – admittedly not well enforced by the region – have not stopped chronic armed conflict or a steadily growing humanitarian crisis. The U.N.’s Office for the Coordination of Humanitarian Affairs (OCHA) estimates that 9 out of its 11 million people require assistance. Therefore, I contend that we first end the fighting quickly by tipping the scales against the RSF. Then we threaten network sanctions so that the military does hand power over to a civilian government, as it promised, and apply them if it does not.

JP: The problem with the idea of a quick end to the fighting is that the mediators have very little leverage left, which I believe needs to be rebuilt using rapidly escalating targeted network sanctions on the competing cabals that are destroying the country, building on the Biden administration’s June 1 sanctions. So, it isn’t just about creating some accountability for the enormous financial and human rights crimes committed by both parties. It’s also about rebuilding leverage over time to support the forces of peace and democracy inside the country in their efforts to achieve fundamental system change. That kind of a serious financial leverage strategy is certainly not what has happened in South Sudan, where occasional sanctions with half-hearted enforcement simply embolden the warlords. If we are serious about supporting long term peace and stability in either country, the U.S. needs to bring out the kind of policy tools of financial pressure it uses for higher-order crises around the world.

EJ: I agree that for the Biden administration’s June 1 sanctions to be effective, the U.S. must employ determined high-level regional diplomacy to convince other partners, in particular the UAE and Saudi Arabia, to also apply those sanctions and ideally additional financial pressure to end the fighting between the RSF and SAF. The U.S. can – and should – argue that Sudan’s long-term stability requires a quick end to the fighting, a single professional military and an inclusive and accountable government.

Ending the fighting will require starving Hemedti and the RSF of money, which pays for its troops and arms, so that it can no longer fight the vicious, high-intensity conflict that is destroying Khartoum and risks collapsing the Sudanese state.  Forcing the RSF out of Khartoum would not only be a major humanitarian achievement but also would lay the groundwork for much more productive negotiations, which must also address Sudan’s two army problem.

To get to a single professional army will require the RSF merging into the SAF, which again can only happen if the SAF gains the military upper hand. If the U.S. and partners apply equal pressure on both the RSF and SAF, they may get a ceasefire but will do little to change Hemedti’s calculations or willingness to relinquish control of the RSF.  A return to the status quo ante bellum, with two large independent armies, would only create the conditions for another war.

This is not to say we should give the SAF the upper hand and then hope for the best.  To get an inclusive and accountable government, Sudan needs to move away from military rule – which has never stabilized the country since independence – and towards an elected government that has a broad mandate to carry out the structural reforms that we agree are necessary to address the center-periphery grievances that have fueled decades of insurgency. Only then can Sudan, and the region, stabilize and prosper.

IMAGE: Smoke billows behind buildings in Khartoum, Sudan, on June 4, 2023, as fighting between the country’s warring generals enters its eighth week. (Photo via Getty Images)

The post Two Experts Debate the Path Forward on Sudan appeared first on Just Security.

A curated weekday guide to major national security news and developments over the weekend. Here’s today’s news.

DOMESTIC DEVELOPMENTS – HANDLING OF CLASSIFIED DOCUMENTS

The federal grand jury hearing evidence in the Justice Department’s investigation of former President Trump’s handling of classified documents is expected to meet this coming week, according to multiple people familiar with the investigation. It is unclear whether prosecutors are prepared to seek an indictment. Prosecutors face two central legal questions: 1) Did Trump wrongfully retain classified documents after he left the White House? 2) Did he later obstruct the government’s efforts to retrieve them? Laura Jarrett, Carol E. Lee, Ryan J. Reilly, Ken Dilanian, and Julia Ainsley report for NBC News. 

Recorded recollections of former President Trump’s lawyer, M. Evan Corcoran, will be reviewed by the office of the special counsel Jack Smith, who is leading the classified documents investigation. Corcoran’s recollections covered his initial meeting with Trump to discuss a subpoena from the Justice Department seeking the return of all classified materials and a search for documents that Corcoran undertook at Mar-a-Lago. Alan Feuer, Ben Protess, and Maggie Haberman report for the New York Times. 

Former President Trump’s legal team informed the Justice Department that it could not find the Iran document that Trump was recorded discussing, and which prosecutors sought via subpoena. On the recording, Trump signaled his awareness of his inability to declassify the document because he had already left office, according to people familiar with the tape. Alan Feuer and Maggie Haberman report for the New York Times. 

The Department of Justice has ended an investigation into former Vice President Pence’s handling of classified documents, according to a letter sent by the Department of Justice to Pence’s attorney on Jun. 1. Former President Trump posted on Truth Social, “That’s great, but when am I going to be fully exonerated, I’m at least as innocent as he is.” Kyle Cheney and Josh Gerstein report for POLITICO. 

DOMESTIC DEVELOPMENTS – 2020 ELECTION

YouTube will stop removing videos with false claims of fraud in the 2020 presidential election, the social media platform announced on Friday. The move, ahead of the 2024 elections, is a reversal of its policy put in place after the 2020 vote. “In the current environment, we find that while removing this content does curb some misinformation, it could also have the unintended effect of curtailing political speech without meaningfully reducing the risk of violence or other real-world harm,” the company said. Mike Wendling reports for BBC News. 

David Moerschel, an Oath Keeper who was part of the “battering ram” that breached the U.S. Capitol on Jan. 6, was sentenced to three years in prison on Friday. Moerschel was convicted by a Washington, D.C., jury of several charges in January, including seditious conspiracy and conspiracy to prevent a member of Congress from discharging their official duties. Hannah Rabinowitz and Holmes Lybrand report for CNN

OTHER DOMESTIC DEVELOPMENTS 

The U.N. Working Group on Arbitrary Detention issued a report over the weekend that blames the United States and seven other nations for the CIA’s “torture and cruel, inhuman or degrading treatment” of a Saudi prisoner who now awaits a death penalty trial at Guantánamo Bay. The group called for the immediate release of and compensation for Abd al-Rahim al-Nashiri, accused of orchestrating the bombing of the U.S. Navy destroyer Cole off Yemen nearly 23 years ago. Carol Rosenberg reports for the New York Times. 

Fighter jets were scrambled to intercept a private plane that flew over Washington D.C. yesterday, the North American Aerospace Defense Command officials said. The jets were responding to a Cessna that crashed later in Southwest Virginia. It is unclear why the Cessna did not respond or why it crashed. Three people who know the event said there is no indication that the military caused the crash. No survivors were found at the crash site. Justin Wm. Moyer, Ian Duncan, Gillian Brockell, and Katie Shepherd report for the Washington Post.

Brian Landry, 66, a New Hampshire man, faces up to 10 years in prison after threatening to kill a U.S. senator because he was angry that the senator was “blocking military promotions.” Landry has been charged with threatening to assault, kidnap or murder a United States official, the U.S. attorney’s office for the District of New Hampshire announced on Friday. Jesus Jiménez reports for the New York Times. 

U.S. RELATIONS

The U.S. Navy has criticized an “unsafe interaction” in the Taiwan Strait, in which a Chinese warship crossed in front of a U.S. destroyer on Saturday. On Saturday night, China’s military rebuked the United States and Canada for “deliberately provoking risk” with their rare joint sailing in the strait. The incident comes after a Chinese fighter jet carried out an “unnecessarily aggressive” maneuver near a U.S. military plane over the South China Sea on May 26. Ben Blanchard and Laurie Chen report for Reuters. 

The White House will renew its effort to draw China into discussions about entering arms control talks, White House National Security Advisor Jake Sullivan said on Friday. Sullivan’s speech detailed President Biden’s plans to address the “cracks in our post-Cold War nuclear foundation.” The solutions he pointed to were primarily aimed at maintaining nuclear deterrence. Efforts to draw China into arms control talks are unlikely to succeed anytime soon, as Chinese officials have refused to discuss agreements limiting their work on nuclear weapons. Julian E. Barnes and David E. Sanger report for New York Times. 

U.S. Defense Secretary Lloyd Austin today discussed upgrading relations with India as both countries grapple with China’s economic rise and increased belligerence, officials said. India is looking to buy drones that it would likely deploy along its restive borders with China and Pakistan. The U.S. defense trade with India rose from nearly zero in 2008 to over $20 billion in 2020. Ashok Sharma reports for AP News. 

President Biden will “at some point” meet with Chinese President Xi Jinping, according to White House National Security Advisor Jake Sullivan yesterday. However, Sullivan’s remarks come as relations between the world’s two biggest economies remain strained. Sam Fossum reports for CNN. 

China’s defense minister, Li Shangfu, said war with the U.S. would be an “unbearable disaster” for the world in his first major speech since taking on the role. Li spoke at the Shangri-La Dialogue in Singapore, the Asia-Pacific region’s only annual security meeting. Monica Miller and Joshua Cheetham report for BBC News. 

RUSSIA-UKRAINE DEVELOPMENTS 

Russia’s defense ministry says it has thwarted a major Ukrainian offensive in Donetsk, claiming to have killed 250 troops and destroyed armored vehicles. Kyiv has not commented on the incident, and Russia’s claim has not been independently verified. George Wright and James Waterhouse report for BBC News. 

Ukraine-backed troops yesterday said they crossed into Russia, seized territory, and captured two Russian soldiers. Belgorod regional governor Vyacheslav Gladkov said fighting was taking place with enemy troops in the border village of Novaya Tavolzhanka. The Russian Volunteer Corps, one of the two groups that said they participated in yesterday’s cross-border attack, offered to release the two prisoners if Gladkov agreed to meet. It is unclear whether the release happened. Matthew Luxmoore and Thomas Grove report for the Wall Street Journal. 

The Ukraine-backed troops who launched a cross-border raid from Ukraine into Russia last week used at least four NATO-originated tactical vehicles, U.S. officials said, raising doubts about Kyiv’s commitments to secure materials supplied by Ukraine’s backers. Alex Horton, John Hudson, Samuel Oakford, and Isobel Koshiw report for the Washington Post. 

A car bomb killed at least one person on Friday night in Russian-occupied southern Ukraine, according to Ukrainian and Russian officials. The incident highlights the war’s reach far beyond the front lines as Ukrainian partisans aim to undermine the occupation. Thomas Gibbons-Neff and Anatoly Kurmanaev report for the New York Times. 

GLOBAL DEVELOPMENTS

Fighting intensified in several areas of Sudan’s capital, Khartoum, yesterday after a ceasefire deal expired. Over 1.2 million people have been displaced within Sudan, and another 400,000 have fled to neighboring states. Reuters reports. 

Saudi Arabia yesterday said it would cut oil production by 1 million barrels a day as part of a deal between OPEC and its allies amid concerns over slowing global energy demand. The cuts will be extended until the end of 2024. The Saudi decision to cut output in July could help boost oil prices in the short term, but analysts expect them to continue to trend lower. Benoit Faucon and Summer Said report for the Wall Street Journal. 

Israeli Prime Minister Benjamin Netanyahu yesterday called the killing of three soldiers by a member of the Egyptian security services a terrorist attack. Netanyahu demanded a full joint investigation with Cairo. An Egyptian security services member shot two Israeli soldiers after the Egyptian crossed through the border fence, soldiers then made contact with the Egyptian service member, and during an exchange of fire, the Egyptian and a third Israeli soldier were killed. The shootings occurred just after a drug incident at the border. Reuters reports. 

Hundreds of thousands of protesters have gathered in Warsaw for one of Poland’s largest demonstrations since the fall of communism. Most opposition parties have called on supporters to join the march against the nationalist Law and Justice party. Various issues brought protests together, including frustrations over inflation, the cost of living, and rights for women and the LGBTQ+ community. Concerns have also been raised over a new law criticized for undermining Poland’s democracy. BBC News reports. 

Left-wing protesters and police have clashed in Germany’s eastern city of Leipzig for a second night over a jail term given to Lina E, a woman convicted of vigilante attacks on neo-Nazis. Police said about 50 officers had been hurt and 30 protesters arrested over the weekend. Lina E was regarded as a leader of a far-left group responsible for carrying out a brutal campaign of violence against the extreme right over several years, including attacks with hammers, iron bars, and baseball bats. BBC News reports. 

The post Early Edition: June 5, 2023 appeared first on Just Security.

• The Lithuanian Case for an International Special Tribunal for the Crime of Aggression Against Ukraine
  by Dr. Gabija Grigaitė-Daugirdė

Classified Information System

• The Just Security Podcast: The Classification Process Declassified
  by Paras Shah (@pshah518)
• It’s Time to Fix Congress’ Classification Infrastructure
  by Michael Sullivan, Aaron X. Sobel and Oona A. Hathaway (@oonahathaway)
• Dispelling Myths: How Classification and Declassification Actually Work
  by Brian Greer (@secretsandlaws) and Wendy Leben

Donald Trump Investigations – Classified Documents

• Model Prosecution Memo for Trump Classified Documents
  by Andrew Weissmann (@AWeissmann_), Ryan Goodman (@rgoodlaw), Joyce Vance (@JoyceWhiteVance), Norman L. Eisen (@NormEisen), Fred Wertheimer (@FredWertheimer), Siven Watt (@SivenWatt), E. Danya Perry (@Edanyaperry), Joshua Stanton (@StantonLaw) and Joshua Kolb (@JoshuaGKolb)

Gender Persecution

• The ICC’s 2022 Gender Persecution Policy in Context: An Important Next Step Forward
  by Yvonne Dutton and Milena Sterio (@MilenaSterio)
• Gender Persecution: Why Labels Matter
  by Michelle Jarvis
• Dusting Off the Law Books on the Crime of Gender Persecution
  by Lisa Davis (@lisadavisnyc)

Autonomous Weapons

• Cluster Munition Convention Offers Roadmap for New Autonomous Weapons Treaty
  by Bonnie Docherty (@bonnie_docherty)

The post Digest of Recent Articles on Just Security (May 29-June 2) appeared first on Just Security.

The catalog below organizes our collection of articles primarily about the war into general categories to facilitate access to relevant topics for policymakers, researchers, journalists, scholars, and the public at large. The archive will be updated as new pieces are published.

We welcome readers to use this catalog to follow the unfolding situation and generate new lines of analysis. To search headlines and authors, expand one or all of the topics, as needed, and use CTRL-F on your keyboard to open the search tool. The archive also is available in reverse chronological order at the Russia-Ukraine War articles page.

IMAGES (left to right): A man takes a selfie in front a destroyed apartment building on April 9, 2022 in Borodianka, Ukraine. The Russian retreat from towns near Kyiv has revealed scores of civilian deaths and the full extent of devastation from Russia’s attempt to seize the Ukrainian capital. (Photo by Alexey Furman/Getty Images); A woman with a Ukrainian flag stands outside the International Criminal Court of Justice (ICJ) or Peace Palace on the first day of hearings on March 7, 2022 in The Hague The Netherlands. Ukraine is petitioning the ICJ to classify Russia’s invasion as a genocide and issue an injunction under the UN Convention against Genocide. (Photo by Michel Porro/Getty Images); Ukrainian servicemen carry the casket bearing the remains of journalist Maks Levins on April 4, 2022 in Kyiv, Ukraine. Levin, who was a contributor to LB.ua and Reuters, among other news organizations, went missing on March 13 and was found dead on April 1 near the village Huta Mezhyhirska, north of Kyiv. (Photo by Alexey Furman/Getty Images)

The post Just Security’s Russia–Ukraine War Archive appeared first on Just Security.

Before indicting a case, prosecutors prepare a prosecution memo (or “pros memo”) that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors and their supervisors to assess whether the case meets the standard set forth in the Federal Principles of Prosecution, which permit prosecution only when there is sufficient evidence to obtain and sustain a conviction. Before a decision is made about bringing charges against Trump (and co-conspirators, if any), prosecutors will prepare such a memo.

There is sufficient evidence to obtain and sustain a conviction here, if the information gleaned from government filings and statements and voluminous public reporting is accurate. Indeed, the DOJ is likely now, or shortly will be, internally circulating a pros memo of its own saying so. That DOJ memo will, however, be highly confidential, in part because it will contain information derived through the grand jury and attorney work product. Since it will not be publicly available, we offer this analysis. Ours is likely more detailed than what DOJ will prepare internally for explanatory purposes. But, given the gravity of the issues here, our memo provides a sense of how prosecutors will assemble and evaluate the considerations that they must assess before making a prosecution decision.

Our memo analyzes six federal crimes in depth:

Mishandling of Government Documents
1. Retention of National Defense Information (18 U.S.C. § 793(e))
2. Concealing Government Records (18 U.S.C. § 2071)
3. Conversion of Government Property (18 U.S.C. § 641)

Obstruction, Contempt, False Information

1. Obstruction of Justice (18 U.S.C. § 1519)
2. Criminal Contempt (18 U.S.C. § 402)
3. False Statements to Federal Investigators (18 U.S.C. § 1001)

In the course of discussing these statutes, we also touch upon others that may have been violated but where the factual predicate for applicability is less clear. For instance, additional charges could be appropriate–under 18 U.S.C. §§ 798 and 793(e) (dissemination)–if the public reporting regarding Trump’s having intentionally disseminated classified material to aides and others is accurate. Additional charges could also potentially be brought under 18 U.S.C. § 1924 if there is sufficient evidence that Trump unlawfully removed classified documents from the White House (see our discussion of DOJ precedents for past prosecutions under § 1924 in Part IV and in the Appendix). Based on the publicly available information to date, a powerful case exists for charging Trump under several federal criminal statutes, which we discuss in detail.

Methodology

In considering prosecution of a former president, we begin with the standard articulated by Attorney General Merrick Garland: “upholding the rule of law means applying the law evenly, without fear or favor.”^[1] In other words, this case must be evaluated for prosecution like any other case with similar evidence would be, without regard to the fact that the case is focused on the conduct of a former president of the United States. This memo accordingly includes a balanced assessment of this particular case, and a thorough review of past DOJ precedents for charging similar cases. Those past cases show that to decline to bring charges against Trump would be treating him far more favorably than other defendants, including those who were charged for less egregious conduct than his. “All Americans are entitled to the evenhanded application of the law,”^[2] Garland has stated, and we are guided by the values underlying those words as well.

This model prosecution memo is, however, limited in an important sense. Throughout the memo, we draw as much as possible on the unusual amount of factual information provided by the Government in its court filings. We do not, however, have visibility into the full volume of information the Justice Department has assembled. That means we could be missing important facts, including exculpatory evidence, that may inform the DOJ’s decision-making process. We may be unaware of admissibility issues with some of the evidence. And equally true, the evidence could be better or more extensive than what is available in the public record.

What’s more, by necessity, we at times rely on news reports from investigative journalists whereas the actual prosecution memo would instead rely on direct evidence the federal investigators have collected. For that reason, we do not reach an unqualified charging decision. Instead, we conclude that there is sufficient evidence to obtain a conviction here, if the Government filings and statements and voluminous public reporting we detail below are accurate. We also note that, based on the reported facts, charges would be strongly warranted based on Department precedent in similar cases.^[3]

The model prosecution memorandum is available below as a SCRIBD file and also as a separate PDF.

Also, to hear more about the memo from some of its co-authors check out the Just Security podcast. A conversation with Andrew Weissmann, Joyce Vance, and Ryan Goodman.

Model Prosecution Memo – Trump Classified Documents Second Edition June 2023 by Just Security on Scribd

– – – – – – –

^[1] Department of Justice, Attorney General Merrick Garland Delivers Remarks (Aug. 11, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-garland-delivers-remarks.

^[2] Id.

^[3] Two of the authors of this model prosecution memo, Norman Eisen and Fred Wertheimer, were among the counsel for amici supporting DOJ’s position in litigation before the U.S. District Court for the Southern District of Florida, and the U.S. Court of Appeals for the Eleventh Circuit, related to the criminal investigation mentioned in this report. For more information, see https://democracy21.org/category/news-press/press-releases.

 Photo credit: Coolcaesar from Wikimedia Commons

The post Model Prosecution Memo for Trump Classified Documents appeared first on Just Security.

The discovery of classified documents in the personal residences and offices of Donald Trump, Mike Pence, and Joe Biden have reinvigorated a public conversation surrounding the U.S. government’s classification system that seems to emerge every few years. In 2015, it was former Secretary of State Hillary Rodham Clinton’s use of a private email server. In 2010 and 2013, it was disclosures by Chelsea Manning and Edward Snowden, respectively. Yet, despite the long history of classified document scandals, many journalists, judges, lawyers, and other outside observers hold fundamental misconceptions about how classification and declassification actually work in the federal government on a day-to-day basis. Since the Mar-a-Lago scandal broke, numerous well-intentioned articles have attempted (see here, here, and here) to explain classification and declassification to the public, along with prolific pontificating from “experts” on Twitter, but this commentary often overlooks basic realities about how the U.S. classification system operates. Drawing from the authors’ experiences at the Central Intelligence Agency and Department of Defense, this article seeks to dispel several myths that have emerged about classification and declassification, particularly regarding presidential and vice-presidential authority, while also providing perspective on how these processes are carried out in the real world.

Classification 101

At its core, classified information is information relating to national security that warrants special protection from unauthorized disclosure, due to the damage to national security that may result from its release. Ostensibly, this information assists presidents in carrying out their constitutional duties as commander-in-chief and other responsibilities relating to national security and foreign affairs. But in reality, only a small fraction of this information actually reaches the president; the vast majority is used by rank-and-file government employees who perform a broad range of national security functions to support these presidential powers. It is also important to understand that the executive branch’s consistent position across administrations is that classified information is created, owned, and controlled by the president, and that Congress and the courts have extremely limited power to intrude on the president’s authority over this information.

The classification regime is governed by an executive order issued by the president, the current version of which is Executive Order 13526. The order sets forth who can classify and declassify information, which categories of information can be classified, marking and handling instructions for classified records, and several other rules and restrictions. Information is classified as Top Secret, Secret, or Confidential depending on the level of harm to national security that “reasonably could be expected to result” from its unauthorized disclosure. This phrase is key, yet most explainers overlook it. It means that it does not have to be certain that the release of such information would harm national security, just that it “reasonably could be expected.” The difference between “will” and “could” is an important distinction that is often overlooked.

Another underappreciated fact is that information is classified, not documents. Documents are marked as classified depending on the information they contain. The classification marking on the document reflects the highest level of classification for the information contained in the document. But technically speaking, the document isn’t classified; it’s the information in the document that is classified. This distinction is important to understanding how derivative classification and declassification work, as explained further below.

Reality #1: The Role and Importance of “Original Classification Authorities” is Vastly Overstated

There are two types of government officials in the world of classified information: original classification authorities, commonly referred to as “OCAs,” and derivative classifiers. Every document, image, map, notebook, or email with a classification marking must receive that marking from either an OCA or a derivative classifier. Most explainers and commentators focus on the importance of OCAs in the classification system and treat the OCA title with a sort of reverence while typically overlooking the role of derivative classifiers.

An OCA is an official who has been granted special authority under Executive Order 13526 “to classify information in the first instance,” meaning they may determine what level of classification is appropriate (Top Secret, Secret, or Confidential), the duration of classification, and whether the other core requirements of Executive Order 13526 have been met. The president and vice president are OCAs, as are agency heads designated by the president and other officials who have been delegated this authority in writing. As of 2021, there were 1,491 OCAs within the federal government. For comparison, approximately 2.2 million Americans hold and use a security clearance. OCAs are required to receive annual training, and whenever the government files a declaration in court explaining why information is properly classified, it always comes from an OCA. That said, the vast majority of OCAs have regular duties that are wholly unrelated to classification, but automatically receive the OCA authority by virtue of their position.

While being an OCA sounds like an important responsibility, the reality is that the vast majority of OCAs never exercise that authority. As a practical matter, almost all records within the federal government are not classified by OCAs; instead, they are derivatively classified by rank-and-file government employees. Derivative classification is set forth in section 2of the Executive Order 13526 and is typically overlooked. Derivative classification can occur in two ways. First, if a government employee is creating a new document and pulls in classified source material from another document, that official is required to “carry forward” the classification markings for the sourced information. Second, information can be derivatively classified in accordance with classification guides, when an employee consults a published guide to determine the appropriate classification level (more on that below).

Statistics bear this out. In 2017, approximately 99.88 percent of all classification decisions were derivative, rather than being original classification decisions made by an OCA. This means that in the government’s daily classified workflow, OCAs might as well not exist – except to the limited extent necessary to create the classification guides. As one example, over a five year period, only one CIA employee – the head of the agency’s classification program – exercised their OCA authority. Presidents and vice presidents also rarely exercise their OCA authority. Most documents they handle are derivatively classified before ever reaching their desks. They might originally classify their notes and other documents they create in the first instance, but rarely go beyond that.

Because of how derivative classification authority works, most employees will never consult with an OCA regarding classification decisions. Instead, they look to one of 2,116 classification guides that exist within the federal government. Classification guides are prepared by a very small subset of OCAs – either the senior official in charge of classification for the agency or the OCA responsible for the information at issue. Some agencies, like the CIA, have one classification guide covering the entire agency. In contrast, the Department of Defense, which has multiple agencies and departments within its sprawling organization, has over 1,500 guides!

The classification guide of the Office of the Director of National Intelligence (ODNI) illustrates how the guides operate. Sections 3.1-3.8 of the guide set forth categories of information and the level at which they should be classified. If an ODNI employee drafts a report using ODNI information, they consult the guide to decide how to classify the document. For instance, if the document contained information about an intelligence collection capability, the author would consult the “Collection” section of the guide (section 3.3) and determine at what level the information should be classified, which generally depends on how specific the information is and to what degree it could expose the collection method. In this scenario, the derivative classifier is not actually classifying the information in the document; the OCA who wrote the guide has already classified that broad category of information, and the employee is simply deciding which categories apply to the information at issue and then marking the document appropriately. If the author also relied on information from another document, such as a CIA cable, they should “carry forward” the classification level for the cable’s information into the new document. In theory, the author should “portion mark” each paragraph in the document with the appropriate classification level for that paragraph, although in reality, this often doesn’t happen except in formal documents. Finally, the author should then give the document an overall classification level (indicated in its header and footer) that reflects the highest classification level of the information it contains. To enforce all of this, IT systems for national security agencies typically require employees to classify a document, with reference to the applicable guide section, prior to saving it (or prior to sending an email).

At least this is how it’s supposed to work. The reality is that many government employees don’t give much thought to the proper classification level for the documents they create. They are too busy, they are not classification experts, and the guides are dense and far from user-friendly. A typical employee might have a general feel for when a document should be classified Confidential versus Secret versus Top Secret, but they will not typically spend much time analyzing that question and will spend even less time reading the guide itself. As mentioned, IT systems typically require the author to cite the applicable classification guide section when saving documents or sending an email, but the systems also let employees create “favorites” that allow them to quickly select the classification level (with reference to a specific guide section, like “Collection-Top Secret”) with a single click.

If OCAs hold a power that is almost irrelevant to our classification system, why do commentators give them so much attention? One reason is that when classified information is litigated in court – such as in Freedom of Information Act (FOIA) proceedings, state secrets assertions, or criminal prosecutions – the government invariably files declaration from an OCA explaining why the information is currently and properly classified. In doing so, however, the OCA is not exercising their OCA authority to classify the information at issue. Almost always, the information has already been derivatively classified by a lower-level employee who created the relevant documents. The OCA is instead supporting a classification decision that was already made, (although in some instances, they might revise it slightly). Viewed this way, the OCA essentially serves as an expert witness who is testifying as to why the information is currently and properly classified. In theory, any employee with requisite experience could file these declarations, but courts and the Department of Justice have grown to accept that this testimony should come from an OCA. The “OCA” title is simply an expert qualification, like having an advanced degree.

Reality #2: Declassification Authority Is More Important than Original Classification Authority

All that said, there is a closely-related authority that matters quite a bit in these OCA declarations, and that is declassification authority. Declassification authority is the power to take information that was previously classified and render it unclassified and therefore releasable to the public. Section 3.1(b) of Executive Order 13526 explains that an OCA can declassify information only if they originally classified it or are the successor to the person who originally classified it. As explained above, OCAs rarely classify information originally, so this type of declassification authority is somewhat toothless. However, OCAs or other officials can separately receive “delegated declassification authority in writing by the agency head or the senior [classification] official at the agency.” This delegated authority gives the recipients broader authority to declassify information originating from their agency. It might apply to all information originating from the agency, or only to information originating from a specific department of the agency. Given the weightier responsibilities, only a fraction of OCAs also have this delegated declassification authority.

Most officials who sign declarations in court have declassification authority in addition to being an OCA. This declassification authority is critical, and it is the authority that they actually exercise when filing their declarations. In hyper-technical terms, they are actually declining to exercise their declassification authority. Because the information at issue was normally classified before coming before the court, there is nothing to classify originally. Instead, the declarant is really explaining why the information remains properly classified and therefore cannot be publicly released pursuant to the declarant’s declassification authority. This nuance is lost even on many government attorneys, however, so the declarations typically just read more like an explanation of why the information was properly classified in the first instance.

Reality #3: There are Three Distinct Types of Declassification

Although the term “declassification” has now entered the public discourse, thanks in part to former President Donald Trump’s unsupported claims that he declassified the White House records he took to his Mar-a-Lago home, most commentators overlook the fact that there are actually three distinct types of declassification. Executive Order 13526 defines declassification as “the authorized change in the status of information from classified information to unclassified information.” That’s easy enough to understand, but from there things get more complicated. While with each type of declassification, information is taken from classified to unclassified, how, and why one gets to that point differs in meaningful ways.

The first type of declassification is the most common but doesn’t have a name, so let’s just call it “routine” declassification. Routine declassification occurs when the information “no longer meets the standards for classification under” Executive Order 13526. It simply means that someone, likely a derivative classifier, considered the information classified at one point in time, but now the declassification authority reviewing the information has determined that it no longer meets the executive order’s classification requirements. This most commonly occurs because the official determines that public disclosure of the information could no longer be expected to harm national security, either (1) due the passage of time or changed circumstances or (2) because the derivative classifier misclassified the information in the first instance. Routine declassification may be carried out by the OCA who classified the information originally, their successor, their supervisor, or officials who have specifically been granted delegated declassification authority (referenced above). The Director of National Intelligence and other senior, designated ODNI officials may also declassify sources and methods information. Routine declassification most regularly occurs when reviewing records for release under a FOIA request and other public release programs, and agencies typically grant declassification authority to officials who supervise these releases.

The second type of declassification is “public interest” declassification, which can occur when the “public interest in disclosure outweighs the damage to the national security.” It differs from routine declassification in two important ways: First, with routine declassification, an official has determined that the release of the information would not harm national security, but with public interest declassification, the official believes it would still harm national security, but that the public interest outweighs the need to protect the information. Second, public interest declassification may only be exercised by the agency head or the senior classification official at the agency, which is a much more limited universe of people than routine classification. Not surprisingly, then, public interest declassification is exercised more sparingly. Some examples include declassifying information for use in espionage, leaks, or terrorism prosecutions, or the declassification of information about Russia’s war plans in the lead up to its invasion of Ukraine.

Prudent government lawyers typically recommend that any public interest declassification decisions be documented in a memorandum from the agency head, so there is a clear record of what was declassified. The memorandum also provides evidence that the declassification was a deliberate, carefully considered decision. Whenever “X” information is declassified, outsiders (FOIA requestors, criminal defendants, and others) will often then claim that “Y” and “Z” information should be declassified too. If the government has a public interest declassification memo to point to, it can make it easier to explain that this was a one-time, discretionary decision based on a careful public interest balancing, and that the declassification did not extend further by careful design. But this documentation is not a requirement and as discussed below, this type of formality often does not take place when the president declassifies the information.

The third type of declassification is “automatic” declassification, which occurs solely based on the passage of time, when the duration of classification surpasses the limits set forth in Executive Order 13526. Under section 3.3 of the Order, automatic declassification requirements typically begin 25 years after the information was classified, but there are exemptions that can extend protection for particularly sensitive information. The rules on automatic declassification are complicated, but it is important to understand that automatic declassification is similar to public interest declassification in that the release of the information might actually harm national security, but the president has determined (through the rules set forth in Executive Order 13526) that it should still be released due to the passage of time and the public’s interest in accessing this historical information.

The term “declassification” is thrown around quite frequently, but it is important to always stop and consider which type of declassification is being discussed. Even many government officials do not understand these distinctions, and it’s doubtful that someone like Trump considered which type of declassification he was employing when he attempted to declassify various Russia-related documents. In addition, readers now know not to be fooled into thinking that a significant public release is imminent whenever a president calls for a “declassification review” of certain records. That can simply refer to a “routine” declassification review, which means that any information that is currently classified will remain that way at the conclusion of the review. If you want a forward-leaning review, look for indicators of a “public interest” declassification review.

Reality #4: Presidents Have Broad Declassification Authority and Need Not Follow Any Formal Procedures

Trump’s unsupported claims that he declassified the White House records at Mar-a-Lago also generated conversation about the president’s power to declassify information. Here, too, much of the commentary was misinformed. Everyone rightly agrees that the president has broad declassification authority. Focusing just on its language, Executive Order 13526 grants declassification authority to “a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority.” As head of the executive branch, the president would plainly qualify as a “supervisory official” over all other OCAs. Even putting that language aside, given that classified information is created by and for the president under the Order, the president also has inherent authority to declassify information (1) as the creator of Executive Order 13526 and (2) through their constitutional authority over national security information. See, e.g., Dept. of the Navy v. Egan, 484 U.S. 518, 527 (1988) (“[Presidential] authority to classify and control access to information bearing on national security…flows primarily from this constitutional investment of [Commander in Chief] power in the President.”).

The only question then is: must the president follow any specific declassification procedures? The answer is a resounding no for two reasons. First, Executive Order 13526 on its face contains no such declassification procedures. The Order sets forth (1) who may declassify information and (2) what standards they should apply, but beyond that, there is no additional process required. While both individual agencies and the Information and Security Oversight Office have developed additional rules about how declassification should be carried out, none of these procedures apply to the president. Second, given the president’s constitutional authority over both classified information and the administration of presidential executive orders, even if Executive Order 13526 did establish constraints, they are at most self-constraints that the president has the power to ignore.

Yet, again, commentators regularly got this point wrong, instead claiming that there are formal declassification procedures that apply to the president. They often cite New York Times v. Central Intelligence Agency, in which the Second Circuit stated that “declassification, even by the President, must follow established procedures,” citing Executive Order 13526. This is a great example of how even courts and, in some instances, the Department of Justice itself (which asserted the same proposition in its appellate brief), do not fully understand declassification. Executive Order 13526 is a public document and relatively short. If it outlines declassification procedures that apply to the president, it should not be hard to find them. But neither the commentators nor the Second Circuit cite to any specific provisions in the Order, and for good reason – they do not exist.

Ideally, the President should normally follow certain procedures when declassifying information. The obvious correctness of this proposition is likely what led to the Second Circuit’s mistake, along with the fact that it was bending over backwards to avoid finding that Trump declassified a covert program with a single tweet. It sounds like the right answer, but it’s not legally supported. In a perfect world, anytime the president wanted to declassify something, they would (1) consult with senior officials from the agencies that originated the information, as well as those with an interest in the information (for instance, the State Department if the information had diplomatic repercussions) and (2) document the decision in writing so that agencies could properly implement it, including by downgrading and properly marking documents that contained the declassified information. But even then, the president should be free to declassify information by whatever means they choose. For instance, on the night of the Osama bin Laden raid, President Obama was fully within his power to promptly declassify the existence of the operation via his nationally televised speech. One could imagine other scenarios where the president determines that it is a national security imperative to quickly declassify information to share it with the public. It would be unwise to impose formal processes and documentation requirements in these types of situations, even if the best practices outlined above should still be followed where possible.

If Congress is interested in legislating in this area, the best solution is to require that anytime the president orders the declassification of certain information, the congressional oversight committees be promptly notified in writing of what was declassified and why. A similar requirement already exists with covert action notification under 50 U.S.C. § 3093without unduly inhibiting the president, even though ordering covert action is an important presidential authority. While this provision would not require the president to follow any procedures before declassifying information, the necessity of informing Congress in writing after the fact would have the practical effect of imposing some discipline on the process.

Reality #5:  Presidents Rarely Declassify Information

Another important point missing from the commentary about presidential declassification authority is that presidents rarely exercise these powers. This is true for several reasons, including the fact that White House and National Security Council (“NSC”) staff typically don’t want to burden the president with personally declassifying information. This is especially true when the underlying events being declassified generate bad publicity. Instead, what normally happens is that the White House and NSC staff, after consulting with the president, direct the relevant agencies to carry out a declassification process, while at most providing general guidance as to what they want to be disclosed and how forward-leaning the agencies should be during their reviews. This is not ordering declassification, but rather initiating a declassification process.

One example of this more informal process is when the president wants to give a speech on a topic of national importance, such as when Obama spoke about U.S. government drone strikes. A draft of the speech is written, marked and treated as classified, and remains classified while going through the interagency review process. Once the relevant parties are comfortable with the speech, the classification markings are removed and it is considered declassified. In some instances, a classification expert from the relevant agency might review it shortly before release to formally “bless” its declassified status, but this person would typically just defer to what that the interagency process produced. The point, however, is that there is typically no specific presidential declassification order associated with this process.

The same thing might happen if there is a pending document release, which could come through a FOIA case, the publication of a congressional report, or the discretionary release of historical documents. Here too there might be general direction from the White House and NSC staff to the agencies processing these releases, but the president will rarely get involved in the details, and formal written orders are rarely issued. Even when the famous “Bin Ladin Determined To Strike in US” Presential Daily Brief was declassified and released in April 2004, it was Director of Central Intelligence George Tenet who declassified it, not President George W. Bush. More recently, President Biden got credit for ordering the declassification of certain documents about the September 11th attacks, including information about Saudi Arabia’s role, but when reading the order closely it becomes clear that he ordered the agencies to evaluate the records for declassification; Biden did not personally declassify anything, although he did encourage the agencies to lean forward and engage in public interest declassification.

Outside of a deliberate process, a president personally effectuating the declassification of information normally happens just by saying something publicly, or even Tweeting it. Again, on the night of the bin Laden raid, Obama decided in the span of a few hours to declassify the existence of the operation – no special formalities or written orders were required. In the strange era of Twitter under Trump, he declassified information on numerous occasions by simply hitting the “send” button, including the time he published a reportedly classified image of an Iranian missile site. Although it may have been unwise, this action was perfectly lawful, even if no formal process was involved.

The point of all this is that instances where the president personally orders the declassification of information are relatively rare. In May 2013, Obama declassified the fact that four Americans were killed in U.S. counterterrorism operations outside of areas of active hostilities, which was then disclosed in a letter to Congress from Attorney General Eric Holder. In April 2015, Obama declassified another U.S. counterterrorism operation that accidentally killed two hostages, one of whom was a U.S. citizen, Warren Weinstein. Ironically, one of the best example of a formal declassification order from a president over the last two decades comes from Trump, who issued a memo declassifying materials from the FBI’s Crossfire Hurricane investigation the day before he left office – Jan. 19, 2021. This order may end up undercutting Trump’s claims that he was declassifying documents in his head at the same time, given the formalities that he followed by issuing the memo.

Reality #6: Vice-Presidential Declassification Authority is Very Limited

Finally, due to the discovery of classified records at Biden’s home and personal residence from his time as vice president, and similar revelations involving Mike Pence, there has also been discussion about vice presidential declassification authority. The vice president does have declassification authority, but it is quite limited. Under Executive Order 13526, the vice president has original classification authority, which means they may also declassify information that they or their predecessor originally classified. However, as a practical matter, the vice president – like the president – originally classifies little, if any, information, rendering this declassification authority mostly moot. The only argument that the vice president has declassification authority beyond this would rest on distinct declassification authority provided for certain “supervisory officials.” But as a general matter, the vice president is not considered a supervisory official of other executive branch officials, so this broader declassification authority does not apply to the vice president.

Conclusion

The point of this article is not to pick on the commentators who missed the mark with their analysis. The U.S. classification regime is confusing, even for those who regularly operate within it. But it is important for outside observers to understand how classification and declassification actually work on a day-to-day basis, especially since those issues are now a regular part of the public discourse. With respect to presidential authorities, it is equally important for the public to understand that the classification system ultimately rests on the assumption that the president will act in good faith, not out of spite, and in the national interest, not personal predilection. Most presidents have done so to date, which is why we have not previously had dialogue about presidential declassification authority and what limits should be placed on it. Trump’s departure from those norms has shown the weakness of that assumption, and time will tell whether such conduct is a temporary anomaly or a new norm.

IMAGE: (Photo via Getty Images)

The post Dispelling Myths: How Classification and Declassification Actually Work appeared first on Just Security.

Trump’s comments raised an important question: What exactly is the process for presidents to classify and declassify information? The answer matters because classified documents can contain some of the United States’ most closely guarded secrets, including the location and identities of intelligence sources abroad. Declassification is equally important for promoting government accountability, and helping the public understand government policies and actions.

To help us understand how the presidential classification and declassification process works in practice, we have Brian Greer and Wendy Leben. For nearly a decade, Brian was an attorney in the CIA’s Office of General Counsel. And Wendy was a senior intelligence analyst in the Department of Defense for 13 years, including seven deployments to Iraq and Afghanistan.

Listen to the podcast by clicking below.

The post The Just Security Podcast: The Classification Process Declassified appeared first on Just Security.

A curated weekday guide to major national security news and developments over the past 24 hours. Here’s today’s news.

DOMESTIC DEVELOPMENTS

President Biden is “fine” after tripping and falling over at a graduation ceremony for the U.S. Air Force Academy in Colorado yesterday, White House officials say. Recent polls suggest most voters are concerned about Biden’s advanced age. If he wins the next election, Biden would be 82 at the start of a second term. Sam Cabral reports for BBC News. 

Two more Oath Keepers were handed prison sentences yesterday for seditious conspiracy and other crimes arising from the Jan. 6 attack. Roberto Minuta was sentenced to four and a half years in prison and Edward Vallejo to three years in prison following their convictions by a jury in January. Sarah N. Lynch reports for Reuters. 

The Senate passed the bipartisan debt ceiling deal, named the Fiscal Responsibility Act, in a 63-36 vote yesterday. The deal suspends the $31.4 trillion debt ceiling while cutting federal spending and imposing a 3% cap on increases for military spending in fiscal 2024. Siobhan Hughes, Lindsay Wise, and David Harrison report for the Wall Street Journal. 

Robert Birchum, a retired Air Force lieutenant colonel who pleaded guilty earlier this year to unlawfully possessing and retaining classified documents, was sentenced to three years in federal prison yesterday, the Department of Justice announced. Birchum admitted to having stored hundreds of files that contained information with top secret, secret, or confidential classification markings in unauthorized locations. Kaanita Iyer and Holmes Lybrand reports for CNN. 

Former Republican candidate for the New Mexico House of Representatives, Solomon Peña, was charged with federal offenses in connection with drive-by shootings at the homes of Democratic officials, the Justice Department said Wednesday. Peña allegedly directed the shootings at the homes of four Democratic officials in the weeks after he lost an election in November 2022. Peña also faces several state charges, including attempted aggravated battery and shooting at an occupied building. The federal charges against him include several firearms offenses and interference with federally protected activities. Mike Ives reports for the New York Times. 

U.S. RELATIONS – CHINA

U.S. military planners are shifting away from big military bases in the Asia-Pacific region in a bid to disperse their assets that could be vulnerable to China’s growing missile arsenal. Tabletop simulations conducted by U.S. security analysts, including of a hypothetical war over Taiwan, generally assumed Beijing would try to destroy key U.S. installations early in the conflict. China now has over 1,300 ballistic missiles that could target the region, including over 250 that could reach as far as major U.S. military bases in Guam. Alastair Gale reports for the Wall Street Journal. 

China’s intelligence agencies are investing in open-source intelligence to learn more about the capabilities of the U.S. military, according to an analysis by the threat intelligence company Recorded Future. China’s government and companies are collecting publicly available data from the Pentagon, think tanks, and private firms to help Beijing’s military plan for a potential conflict with the United States. Julian E. Barnes reports for the New York Times. 

U.S. RELATIONS – IRAN

Iran is planning attacks against U.S. troops in Syria and is working with Russia on a strategy to drive Americans from the region, intelligence officials and leaked classified documents say. Such attacks would escalate Iran’s long-running campaign of using proxy militias to launch rocket and drone strikes on U.S. forces in Syria, risking a wider military confrontation with Iran. Iran is developing more sophisticated weaponry and teaching its proxies to use them against U.S. personnel. Joby Warrick and Evan Hill report for the Washington Post. 

The U.S. Treasury Department yesterday imposed sanctions on members and affiliates of Iran’s Islamic Revolutionary Guard and its external operations arm. Washington has accused the Islamic Revolutionary Guard of participating in terrorist plots targeting former U.S. government officials, dual U.S. and Iranian nationals, and Iranian dissidents. Reuters reports. 

OTHER U.S. RELATIONS

The White House announced yesterday that it would impose sanctions against key defense companies and people who “perpetuate violence” in Sudan. “These measures are intended to hold accountable those responsible for undermining the peace, security, and stability of Sudan,” White House national security adviser Jake Sullivan said, as the warring factions failed to abide by a ceasefire agreement. Jack Jeffery and Aamer Madhani report for AP News. 

The Biden administration announced yesterday that it is revoking the visas of Russian nuclear inspectors, denying pending applications for new monitors, and canceling standard clearances for Russian aircraft to enter U.S. airspace. The move is in retaliation to Russia’s suspension of the New START nuclear treaty. Matthew Lee reports for AP News. 

RUSSIA-UKRAINE DEVELOPMENTS – GLOBAL RESPONSE 

In order to deter Russia beyond the war in Ukraine, NATO members must grow their military spending, Britain’s Defense Secretary Ben Wallace said, outlining his ambitions for NATO’s future as it considers its next leader. Wallace has said that the same complacency that NATO members had vis-a-vis Russia before the invasion of Ukraine persists concerning the threats posed by China and destabilizing activity in Africa. Wallace’s comments come as speculation intensifies about who will replace NATO Secretary General Jens Stoltenberg following his expected departure this year. Missy Ryan reports for the Washington Post. 

The United States is seeking to secure supplies of explosives in Japan, as Washington sends weapons and ammunition to Ukraine, two people familiar with the matter said. While export rules ban Japanese companies from selling lethal items overseas, Japan will allow the sale of industrial TNT because the explosive is not a military-use-only product. Tim Kelly, Nobuhiro Kubo, Yukiko Toyoda, and Kaori Kaneko report for Reuters. 

OTHER RUSSIA-UKRAINE DEVELOPMENTS

Several Russian governors reported attacks on their regions today as the war spills over from Ukraine’s borders into Russian territory. There were no reports of any injuries. Reuters reports. 

Two people were injured by falling debris after Ukraine’s air defenses repelled a Russian aerial attack on Kyiv earlier today. Jessie Yeung reports for CNN. 

Ukrainian President Volodymyr Zelenskyy accused Kyiv officials of negligence after civilians were killed when they were locked out of a shelter Wednesday night. Zelenskyy warned that the situation “should never happen again” and said it was the duty of local authorities to ensure shelters are available and accessible. Kyiv mayor Vitali Klitschko said investigations into the incident are underway. Andrew Jeong and Ellen Francis report for the Washington Post. 

A growing feud between the paramilitary organization Wagner group founder Yevgeny Prigozhin and Chechen leader Ramzan Kadyrov, Russia’s two most powerful warlords, exposes the rifts in Russian President Vladimir Putin’s war machine. The replacement of Wagner’s troops holding Bakhmut with Kadyrov’s troops could be a ploy by the Kremlin to escalate the rivalry between the two warlords, who joined forces last year to criticize the Russian defense ministry. Thomas Grove reports for the Wall Street Journal. 

GLOBAL DEVELOPMENTS

A meeting of foreign ministers of the BRICS group of nations in South Africa has called for rebalancing the global order away from Western nations. Allegations of Russian war crimes in Ukraine have clouded the talks, as has the International Criminal Court’s warrant for Russian President Vladimir Putin’s arrest. As a court member, South Africa would be obliged to arrest Putin if he attends a BRICS summit scheduled for Johannesburg in August. BRICS is an acronym for Brazil, Russia, India, China, and South Africa. Oliver Slow reports for BBC News. 

Clashes erupted between protesters and security forces after a court in Senegal sentenced the country’s leading opposition figure, Ousmane Sonko, to two years in prison yesterday after finding him guilty of “corrupting youth.” The ruling bars Sonko from running in future elections. The conviction relates to an accusation that Sonko had a sexual relationship with a massage parlor worker under the age of 21. Elian Peltier reports for the New York Times. 

The eruption of violence in Kosovo this week, which left dozens of people wounded, has raised fears in Western capitals that the possibility of conflict could create an opening for Russia to reignite one of Europe’s unresolved flashpoints. The violence was caused when Kosovo attempted to forcibly install ethnic Albanian mayors in ethnic Serb areas following elections that international observers dismissed as unrepresentative. NATO, which provides troops to keep the peace in Kosovo, dispatched an additional 700 troops following the unrest. Bojan Pancevski reports for the Wall Street Journal. 

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In December 2022, the International Criminal Court’s Office of the Prosecutor (ICC OTP) launched its Policy on Gender Persecution. The Policy reflects the OTP’s existing commitment to focus its resources and attention on investigating and prosecuting sexual and gender-based violence (SGBV) crimes, including the crime of gender persecution. Moreover, the Policy builds upon the OTP’s prior work in this area, including its 2014 Policy Paper on Sexual and Gender-Based Crimes. This article highlights and discusses the OTP’s Gender Persecution Policy, while also situating its place in the trajectory of ICC’s progress related to the investigation and prosecution of SGBV crimes, and in particular the crime of gender persecution. Below, we first give an overview of the Rome Statute’s contributions to the development of international criminal law regarding SGBV crimes. Next, we address the OTP’s 2014 Policy Paper and describe some of the investigations and prosecutions of SGBV crimes which resulted from the OTP’s specific decision to ensure that these crimes were not overlooked. We then turn to the 2022 Gender Persecution Policy, detailing some of its key features and briefly discussing some implementation challenges.

The Rome Statute: Developing International Criminal Law Related to the Investigation and Prosecution of SGBV Crimes

Because the ICC functions based on a system of complementarity where it may only seize a case if the relevant state is “unwilling or unable” to prosecute, the Court is in a unique situation where through positive complementarity it can promote accountability and the development of international criminal law within national jurisdictions. Thus, through its focus on the definition of gender, as well as on the investigation and prosecution of SGBV crimes, the ICC has been fostering the development of international criminal law in this area, both within international as well as within national jurisdictions.

The ICC was the first international criminal tribunal to define “gender” within its founding statute. According to Article 7(3) of the Rome Statute, “gender” “refers to the two sexes, male and female, within the context of society.” The Rome Statute’s definition of gender has been criticized, due to its focus on the binary nature of the definition. Nevertheless, Article 21(3) of the Rome Statute requires that the statute’s provisions be interpreted and applied consistently “with international recognized human rights, and be without any adverse distinction founded on grounds such as gender.” Thus, both the 2014 Policy Paper and the 2022 Gender Persecution Policy adopt a broader view of gender and thereby enable the OTP to also adopt a more progressive, and non-binary, understanding of gender. However, this contemporary view taken by the OTP does not conflict with the Statute’s definition, since gender persecution crimes are understood from the perception of the perpetrator. The Gender Persecution Policy explains this, stating, “Gender refers to sex characteristics and social constructs and criteria used to define maleness and femaleness.”

In addition, the Rome Statute also criminalized a broader range of SGBV crimes than prior international criminal tribunals. Under the Rome Statute, acts of “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” may be prosecuted as underlying acts supporting charges of crimes against humanity (if the contextual elements of crimes against humanity are met) or as war crimes (when committed in the context of armed conflict). The Rome Statute is also the only international instrument to expressly recognize the crime against humanity of gender persecution. For gender persecution to constitute a crime against humanity, the perpetrator must target an “identifiable group or collectivity” based on gender grounds. Such groups include, for example, men, women, girls, boys and/including LGBTQI+ persons. Other international criminal tribunals had limited the reach of the crime of persecution to political, racial, or religious grounds. Thus, including the crime of gender persecution within the Rome Statute constitutes a significant step in the development of international criminal law related to the investigation and prosecution of SGBV crimes.

The 2014 Policy Paper: In Theory and In Practice

In its 2006 Report on Prosecutorial Strategy, the OTP had already signaled that it would select cases “paying particular attention to methods of investigations of crimes committed against children, sexual and gender-based crimes.” The OTP echoed a similar goal in its Prosecutorial Strategy for 2009-12, which repeated the objective of addressing charging practices in relation to gender crimes. Under the leadership of Prosecutor Fatou Bensouda, OTP’s 2012-2015 Strategic Plan announced a strategic goal committed to enhancing “the integration of a gender perspective in all areas of . . . work” and to paying “particular attention to sexual and gender-based crimes.” And in 2014, after extensive consultations with ICC States Parties, civil society, academia, and relevant United Nations agencies, the OTP launched its Policy Paper. With the 2014 Policy Paper, the OTP declared that it would adopt concrete steps to address the challenges it has previously faced in investigating and prosecuting SGBV crimes.

The 2014 Policy Paper broadens the OTP’s view of the definition of gender, explicitly interpreting “context of society” as acknowledging “the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” Moreover, the 2014 Policy states the OTP will interpret and apply the definition of gender consistently with Article 21(3) of the Rome Statute and internationally recognized human rights. And the OTP confirmed in the 2014 Policy that it would consider acts of violence and discrimination related to socially constructed gender roles. The 2014 Policy also commits to bringing charges for SGBV crimes whenever the OTP concludes there is sufficient evidence to support them, and it recommends applying a gender analysis to all stages of the OTP’s work, including preliminary examinations, investigations, and prosecutions. Finally, the 2014 Policy recognizes that it may be difficult for the ICC alone to carry out this progressive agenda related to the investigation and prosecution of SGBV crimes. Instead, it specifically references positive complementarity and encourages states to carry out their primary responsibility of investigating and prosecuting these crimes, with support from the OTP.

In practice, the OTP made significant strides in advancing the goals of the 2014 Policy Paper. Under Bensouda’s leadership, the OTP initiated 13 new preliminary examinations, nine of which included SGBV crimes, and four which were brought on the prosecutor’s own motion. In addition, the OTP concluded two preliminary examinations (Nigeria and Ukraine) where it found that the criteria to proceed with investigations was met; in both situations, SGBV crimes were included. Moreover, the OTP opened seven new investigations, six of which encompassed allegations of SGBV crimes. Following the 2014 Policy Paper, the OTP increased its practice of charging defendants with SGBV crimes: in the four years that followed the Policy, SGBV crimes constituted nearly fifty percent of the crimes charged.

The OTP’s conviction record on SGBV charges, however, was more nuanced. In the Katanga and Ngudjolo Chui cases, although both defendants were charged with SGBV crimes, neither was ultimately convicted of such charges. In the Bemba case, the Appeals Chamber overturned a conviction on SGBV charges, and defendant Jean-Pierre Bemba Gombo, a former military leader now serving as Minister of Defense of the Democratic Republic of the Congo (DRC), was ultimately acquitted of all charges. On a more positive note, Bosco Ntaganda, the former military chief of staff of an armed militia group operating in the DRC, was charged with SGBV crimes, convicted of such charges, and the conviction was confirmed on appeal; thus, the Ntaganda case represents the first final conviction for SGBV crimes in the Court’s history. Most recently, Dominic Ongwen, a former commander of the Ugandan Lord’s Resistance Army, was convicted of numerous SGBV charges, making it the first case where the OTP supported a crimes against humanity charge with forced marriage as an inhumane act. In sum, despite mixed results, it can be argued that since the launch of the 2014 Policy Paper, the OTP’s investigation and charging practices regarding SGBV crimes have improved substantially. One might expect that the OTP will also have further success in obtaining convictions on such charges in the near future.

The Crime of Gender Persecution and the 2022 Gender Persecution Policy

The crime of gender persecution has not been prosecuted until recently. For the first time in the ICC’s history, in September 2019 a Pre-Trial Chamber recognized charges of gender persecution in Prosecutor v. Al Hassan. The trial against Al Hassan Ag Abdoul Aziz, a high-ranking administrator of the Islamic Police in Timbuktu, commenced in July 2020, and evidence regarding the commission of the crime of gender persecution has been submitted. Most recently, the OTP brought gender persecution charges in a case against Ali Muhammad Ali Abd-Al-Rahman. The trial against this defendant, an alleged leader of the Militia/Janjaweed in Darfur, Sudan commenced in April 2022 and is ongoing.

Under the leadership of Prosecutor Karim Khan, KC, and to enhance the OTP’s ongoing efforts to provide justice to victims of SGBV crimes, the OTP launched its Policy on Gender Persecution in December 2022. This Policy, launched after two rounds of public commentary (for our commentary see here), recognizes that SGBV crimes, including gender persecution, are “among the gravest crimes in the [Rome] Statute,” and confirms that investigating and prosecuting these crimes is a “key priority.” The Gender Persecution Policy also expresses the OTP’s commitment to pay “particular attention” to the crime of gender persecution “at all stages of its work from preliminary examination, investigation, to trial, sentencing, appeal and reparations.”

In addition, the Policy is commendable for other reasons. First, it includes a list of definitions of key terms as “gender,” “gender persecution,” “intersex,” and “LGBTQI+,” and as to “gender,” the Policy reaffirms that gender is a social construct that can evolve over time. The Policy reinforces this view of gender by defining “gender persecution” as a crime “committed against persons because of sex characteristics and/or because of the social constructs and criteria used to defined gender.”

Second, it includes definitions of victims who do not identify as men or women, thereby signaling that the OTP will employ a broad lens when considering the victim population subject to gender persecution. Through this Policy, the OTP has expressed its willingness to adopt an intersectional approach that acknowledges the inter-relationship between gender and other aspects of an individual’s identity which may render that individual particularly vulnerable to SGBV crimes, including the crime of gender persecution.

Third, the Gender Persecution Policy adopts a broad view of persecution, criminalizing persecution based on the perpetrator’s beliefs about what it means to be male or female. This type of subjective view of persecution is consistent with most expert commentary in this area of the law and reflects OTP’s progressive view about the crime of gender persecution.

Fourth, the Gender Persecution Policy clearly affirms the OTP’s commitment to investigating and prosecuting SGBV crimes, including the crime of gender persecution, as well as to the development of international criminal law more broadly. This commitment is reflected in the Policy in OTP’s clear stance of cultural relativism, stating that “breaches of fundamental rights cannot be ignored, dismissed or justified on the basis of culture.” The Gender Persecution Policy thus aligns with the modern understanding that arguments about cultural relativism cannot defeat accountability for SGBV and gender persecution crimes.

Fifth, the Policy analyzes the six elements of persecution as a crime against humanity under the Rome Statute; by doing so, the Policy provides clarity to different investigative and prosecutorial teams at the ICC as to the type of evidence that will be necessary to prove the different elements of the crime of gender persecution. In fact, the Policy describes in detail how the OTP will approach its investigation and prosecution of gender persecution throughout the different stages of the ICC’s criminal process.

Sixth, to further facilitate the prosecution of the crime of gender persecution, the Policy includes a detailed analysis of the distinction between motive and intent as they relate to the investigation and prosecution of this crime.

Last, the Gender Persecution Policy addresses various implementation challenges with a promise that the Policy will be regularly reviewed, and that the OTP itself will continue to monitor the implementation of the Policy.

Implementation Challenges

Although the Gender Persecution Policy itself contemplates the need for future oversight and anticipates implementation challenges, it is inevitable that stakeholders and court observers will look for outcomes, such as investigations, prosecutions, and convictions of gender persecution crimes. Moreover, the OTP will need to demonstrate its ability to lead in the development of international criminal law regarding the crime of gender persecution. To successfully implement the Gender Persecution Policy, the OTP will likely require staff training protocols, the creation of additional expert materials on gender persecution (such as, for example, additional materials on the distinction between motive and intent), as well as ongoing internal monitoring. An additional implementation challenge is related to victim participation. As we argue in a forthcoming article (“Prosecuting Gender Persecution at the ICC: Definitions, Policies, and Practice,” 46 Fordham International Law Journal 1 (2023)), a well-developed victim participation regime may facilitate regular collaboration with victims of gender persecution which can in turn aid the prosecution of this crime as well as the development of an effective reparations regime.

In sum, a successfully implemented Gender Persecution Policy can lead toward higher numbers of convictions of SGBV crimes, including gender persecution crimes. Additionally, a successful implementation of the Policy may ensure that the OTP’s focus remains on the prosecution of gender persecution. Although the Gender Persecution Policy is a progressive and impressive document, it remains crucial for the OTP to remain committed to ensuring its successful implementation.

IMAGE: Women in Lukodi celebrate after Dominic Ongwen, a child soldier- turned- commander, was found guilty by the International Criminal Court of war crimes and crimes against humanity, including a massacre in their village back in 2004, in Lukodi, Uganda, on February 4, 2021. (Photo by Sumy Sadurni / AFP) (Photo by SUMY SADURNI/AFP via Getty Images)

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