There may be some confusion out there as to why Peter Strzok was so insistent on keeping the declassification authority from his previous office at the FBI when he joined the team for Robert Mueller’s special counsel investigation.
Judicial Watch has obtained emails between Strzok and his former chain of supervisors, in July 2017, discussing the authorities Strzok wanted to retain from his previous FBI position as Deputy Assistant Director of the Counterintelligence Division. Strzok wanted to keep those authorities while he was working for Mueller. The declassification authority isn’t the only interesting one, but it’s getting the most media attention.
Here is the passage from Strzok’s 13 July 2017 email:
Broadly, I need to be able to act at least in the capacity of my old CD DAD job – approve NSLs, conduct [redacted] declassify information, [redacted] agent travel, requisitions, etc. Of those, the most problematic and one of the most essential is declassification authority. As I understand it, declassification authorities are billet-limited by Division and position, and they are provided by DOJ, not by the FBI. CD has three. I understand the need to fill my position within CD, but I’d respectfully request based on mission need that I keep the authorities from my old job.
Fox News quotes Judicial Watch’s Tom Fitton:
Strzok’s insistence on keeping the declassification authority raises concerns whether such authority gave the Mueller investigation special capabilities to target President Trump.
“It sure did,” Judicial Watch President Tom Fitton told Fox News. “Strzok wouldn’t have asked for it if he didn’t think it’d be useful in his new job.”
“He wanted the authority to issue national security letters, which essentially are secret requests for information that fall short of needing court approval,” Fitton continued. “He also wanted – and he said this was ‘essential,’ which is very unusual – he wanted the ability to declassify information. He wanted to keep that ability.”
But a mental adjustment is required here. Strzok’s anxiety to keep his declassification authority wasn’t really about declassifying things.
It was about keeping them from being declassified.
Strzok’s declassification authority was position-specific. He had a delegated authority to review classified (or potentially classified) material generated by the division under his supervision, if declassification was requested before the standard 25-year automatic declassification date.
The bumper-sticker understanding on this is that declassification decisions about material produced by the Counterintelligence Division would have to go through him. He could veto declassification, and only be overruled by higher authority in the FBI or DOJ.
No one goes into a counterintelligence investigation eager to declassify information. Nor would there be any urgent requirement on the Mueller team for such authority, held by a subordinate like Peter Strzok.
Strzok wanted to ensure that declassification decisions about information on his activities in the Counterintelligence Division remained in his hands. If the authority passed from him to his successor in the CD DAD job, the decision would be out of his hands.
Either legal proceedings (i.e., discovery for those indicted by Mueller) or FOIA requests like Judicial Watch’s could lead to declassification considerations for that information.
That’s why Strzok wanted to retain that authority. He didn’t want someone else making the call on what got declassified relating to operations he was involved with. He wanted to retain the authority even if it meant someone actively performing related functions in the Counterintelligence Division had to go without it, because of the limited number of billets to which the authority could be assigned.
The origin of the authority allocation is a presidential executive order, the current version of which is E.O. 13526 on “Classified National Security Information,” issued by Barack Obama in December 2009. Part 3 of that order covers declassification of material prior to its automatic declassification date (typically 25 years from the date of creation).
Section 3.1.(b) addresses who has the authority. It is clear that declassification authority resides with the original classification authority (what’s referred to throughout the federal government as the OCA) — typically a federal department or cabinet-level agency — or with the OCA’s designated delegate.
PART 3—DECLASSIFICATION AND DOWNGRADING
Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.
(b) Information shall be declassified or downgraded by:
(1) the official who authorized the original classification, if that official is still serving in the same position and has original classification authority; (2) the originator’s current successor in function, if that individual has original classification authority; (3) a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency.
Strzok’s authority fell under 3.1.(b)(4), which each federal department (in this case, DOJ) administers as it deems necessary under 13526. He couldn’t run around vetoing the declassification of every secret the FBI keeps (although his division might be, and often would be, consulted on the decisions made about other divisions’ classified information. It is common for multiple divisions and agencies to have equities in the classification of a single document’s information).
But whatever was commemorated in classified or classifiable material (like emails) by the Counterintelligence Division, Strzok got a declassification cut on, if the need arose.
That’s the authority he wanted to keep. It is a bit humorous to note that the redaction in Judicial Watch’s copy of the 13 July 2017 email is marked with a FOIA 3(b) exemption. Exemption 3 is something of a catch-all (although it isn’t supposed to be), allowing “the government to withhold records that are ‘specifically exempted from disclosure’ by statutes other than FOIA.” In other words, material under Exemption 3 has been given separate statutory immunity from declassification.
Strzok’s email text contains so little in the redacted portion that it can hardly be referring to anything other than his former position’s authority to review material for declassification – which is no national secret. It looks to me like the email was redacted to reduce clarity about what Strzok was really asking for. He wanted to keep a veto over the release of anything that would expose him.