If someone had told me during my FBI career that I would end up spending five years on national television explaining the complexities of foreign counterintelligence and violent domestic terrorism, I would have wondered, “Why?” If they said that I would do this because of the actions of one person, I would wonder, “Who?” These questions have long been answered. Now that the FBI has issued a search warrant for Mar-a-Lago, the home of former President Donald Trump in Florida, and the supporting affidavit has been made public, I am being asked to explain the intricacies of classifying documents, which many Americans ask: What?” For example, what do they mean? various government secret labels and what is at stake if there are boxes of highly classified documents stored in an unauthorized location by an unauthorized person?
What is at stake if boxes of highly classified documents are kept in an unauthorized location by an unauthorized person?
We learned that in the months prior to the Mar-a-Lago raid, 150 classified documents were unearthed during a January transfer of documents from Donald Trump’s golf resort to the National Archives. These documents contained about 700 pages of classified information, including data from the “special access program.” We also know that after the subsequent discovery and search by the FBI, the total number of classified documents rose to 300. After the search, FBI agents gave Trump’s lawyer a list, called a “return”, which documented the nature of the seized documents. Items. This report found the seizure of four sets of top secret documents, three sets of classified documents, and three sets of confidential documents. It is important to note that the FBI agents noted that they found documents marked “Confidential Non-public Information” or SCI. As if that wasn’t enough, The Washington Post reported that FBI agents were looking for nuclear secrets while searching Mar-a-Lago.
Far-right media platforms quickly exploded with criticism and described the FBI raid as an unnecessary excess of authority and an overly aggressive legal move. The truth, however, is that the National Archives and then the Justice Department paid too much respect to the former president, and for too long. The search came after months of deliberations, partial recovery of documents, an unsuccessful subpoena, and a false written statement by Trump’s lawyer that all classified documents had been handed over.
Information, including but not limited to documents and photographs, is classified by the US government if it is considered confidential and its unauthorized disclosure could compromise national security. The news has mentioned various levels of classified material that Trump has kept, but what do these classification categories mean? There are three general levels:
- Top Secret: Information that would cause “exceptionally serious harm to national security” if not disclosed without authorization.
- Secret: Information that, if not disclosed without authorization, could cause “serious” harm to national security.
- Confidential: Information that is determined to pose a threat to national security through unauthorized disclosure.
It gets worse. An unsealed and heavily redacted affidavit submitted to a federal judge to substantiate a search warrant showed that some of the 184 classified documents previously unearthed at Mar-a-Lago included intelligence obtained from human sources, intelligence data, and marked documents. NOFORN and ORCON. This means that if these documents are compromised, the life of a spy working for the United States could be endangered, the location of a hidden microphone in an enemy office could be discovered, or the capabilities of a secret satellite could be exposed. It also means that some of the intelligence information was tightly controlled by its original agency (ORCON) and that some should never have been shared with a foreign citizen (NOFORN).
The life of a spy working for America could be endangered, a hidden microphone in an enemy office could be discovered, or the capabilities of a secret satellite exposed.
Extensive prior research and processes are required to gain access to classified information, and detailed and varied requirements must be met in order to obtain and properly store these various levels of classified information.
While “Top Secret” is the highest of the classifications, there are sections within the “Secret” and “Top Secret” levels similar to those described in the affidavit, which further limit the number of people who are granted access. Each of these categories of sensitive information (SCI) is different. Having access to one of the SCI bays requires a “need to know” and does not mean you have access to the other bays.
Even having a Top Secret clearance does not automatically give you the right to see any SCI bays. This is because these much smaller subsets of the classification contain the most sensitive data in our government – often because disclosure can reveal and compromise specific sources, methods or technologies and end this collection stream. Disclosure may even lead to the assassination of a person in a foreign government.
Even more confidential and limited are special access programs. SAPs can only be created by a few very high-ranking officials, including secretaries of state and secretaries of defense or the director of national intelligence, and related information is carefully tracked and controlled to document who processed the information. In my experience, SAPs are often referred to as long-term, highly confidential research or planning projects related to maintaining America’s defenses or deterrent capability. Often, a polygraph test is required before access to SAP is granted, and another polygraph test after the need for such access has disappeared.
Although the former president claims he issued a standing order to declassify everything he wanted to keep, many of his own aides have vehemently rebutted that defense. While the President certainly has the power to declassify certain types of information, he must still adhere to established procedures. Proper declassification is also evidenced by appropriate markings on the affected documents. In other words, there will be a paper trail.
A more relevant criticism of the government is that the authorities did not act quickly enough.
In fact, all the discussions around whether Trump declassified or could have declassified the documents found may be legally irrelevant. The three felonies cited by prosecutors in the search warrant for Mar-a-Lago, for which a federal judge determined probable cause, do not technically require classified material.
Again, with so much sensitive information stored for over a year in a location that doesn’t qualify for classified storage, criticism of the August 8 raid is unfounded. A more relevant criticism of the government is that the authorities did not act quickly enough to protect the security of our country from a former president who proved he was never worthy of secret access.