Let’s commit a potential crime: “Every day, the Iraqis publish military reports threatening “severe punishment” against Iran.” This line is classified, albeit since 1988. It was released to the public through Wikileaks, but has never been officially declassified. Technically, it remains classified even if it is just a click away.
This shows that if there are three things that almost everyone in the government agrees on, they are: a) too many secret documents, too highly classified; b) no one is going to risk their neck to be the first to classify less; and c) handling all this classified information is a major problem even for those who are trying to do the right thing.
As former CIA and NSA director Michael Hayden said, “Everything is top secret. I mean, I got an email saying “Merry Christmas”. It was top secret marked NA.
In 2010, Congress passed the Overclassification Reduction Act, which mandated several steps to improve classification methods. But in a minor act of legislative negligence, Congress failed to define the meaning of the term “super-secret.” So it is not entirely clear what the Law should reduce.
Eight blue-ribbon government commissions dealt with the issue of over-secrecy, not to mention literally hundreds of task forces of departments, each of which considered over-secrecy rampant. More recently, in 2017, the Information Security Oversight Office (ISOO) under the National Archives and Records Administration (NARA; the people who are now trying to get hold of the classified documents once held in Mar-a-Lago) came to the conclusion that “Too many secrets prevent the proper sharing of information needed to respond to security threats, while too little declassification undermines the confidence of the American people in their government. Reforms will require the adoption of strategies that increase the accuracy and reduce the admissibility of security classification decisions, as well as increase the efficiency and effectiveness of declassification programs.”
In addition to better administration, less overclassification will save money. ISOO estimates that in fiscal year 2017 the government spent $18.39 billion on safety classifications, while private companies spent another $1.49 billion working with federal agencies through the National Industrial Safety Program. The cost of obtaining a “Top Secret” permit ranges from $3,000 to $15,000. It adds up.
The main way that documents end up being (too) classified is that it’s too easy to classify something, it’s too tempting to classify something, and it’s almost impossible to declassify something without being the President of the United States.
It works like this: a junior State Department official or a young army captain (the intelligence agencies follow a more complex model, given that they consider everything they do top secret) is going to write a report on Iran. He turns to his secret word processing network because, well, this is Iran, and chooses “Confidential”, “Secret” or “Top Secret”, each heading has pages and pages of definitions according to Executive Order 12356 (there are about 2865 manuals safety classification). He heard that his boss’s boss doesn’t have time to read anything other than important stuff, so he chooses “The Secret” to try and get attention.
He can then choose a conversion guide, a designation of which of the 1.5 million Americans with full security clearance can actually legally read his document. The options are: LIMDIS – Limited Distribution Only – NOFORN – No Foreign Distribution – LOU – Limited Official Use – SENSITIVE BU – Background Use Only – CONDIS – Controlled Distribution – and half a dozen others. Pay attention to the “and” as it can add designations, for example, LIMDIS NOFORN.
When our compiler crosses the line and accesses top secret documents or deals with intelligence information, he gets a whole new set of conventions, such as SCI – Secure Compartmentalized Information – or SAP – Special Access Programs – which define a very narrow circle of people who can read what he wrote. Information coming from NATO or friendly foreign governments has its own set of notations.
The list is not endless, but in practice it is quite close. The desire to limit documents to those who “need to know” can have tragic consequences, as was discovered after 9/11 when it was discovered that the CIA had data that the FBI could use to prevent an attack. Overclassification is an obstacle to the exchange of information at the most important moments.
Who is guilty? Who can classify a document? Any of the 1.5 million Americans. Who can remove or downgrade a classification? In practice, the head of the initiating institution, or a person designated by him (for example, the secretary of state under the records of the State Department) and the president. It’s easy to see the problem. Add to this that classification is done electronically and initiated automatically, while declassification is a manual process that must be initiated by a person willing to stick their neck out.
There is another problem: derived classification. Derivative classification means incorporating, paraphrasing, restating, or creating in a new form information that is already classified, and labeling the newly developed material according to the classification labels that apply to the original information. In other words, secret documents beget even more secret documents when they are cited or used as source material, sort of like a secret snowball effect.
The numbers are staggering: Chelsea Manning leaked 251,287 classified documents from the State Department alone over a seven-year period, averaging about 36,000 classified documents a year from just one agency, and that’s relatively low compared to the military. It is quite possible that no one can say exactly how many secret documents exist, although one estimate puts the number at 49 million.
With so many secrets, the real question is how to deal with the tsunami safely. Thought experiment: Imagine someone hands you one document and says, “Protect this.” You can put it neatly in your pocket, check to see if it’s there several times an hour, maybe put it in a safe overnight. Now someone hands you 36,000 documents and tells you to protect them at all costs. Then, while you are trying to do so, they continue to present additional classified documents and require you to handle them properly. Let’s see how this works with one personal example.
As an employee of the State Department in 2011, I kept a personal blog, which was then allowed. I contacted one of the 251,287 documents released by Manning via Wikileaks with a short snippet saying that Senator John McCain traveled to Libya several years ago to sell plane parts to Libyan leader Muammar Gaddafi. I personally didn’t know anything about this event, so I put forward the argument against the sale of military parts to terrorists solely from a document posted on Wikileaks.
I was accused by the state’s Office of Diplomatic Security of mishandling classified information (the original Wikileaks document was marked confidential). Arguments that I did not leak the document, never physically owned the document, that media such as The newspaper “New York Times regularly published documents marked secret by Wikileaks and that the document I was quoting existed online for public viewing were denied by the state, which referred my case to the Department of Justice for prosecution.
In my defense, the American Civil Liberties Union wrote: “The state shows a tendency to superficially promote the national image at the expense of transparency. At its worst, this is yet another example of the government making false claims about secrecy in order to avoid legal and political liability.” The Ministry of Justice declined to prosecute without comment, and the Diplomatic Security Service immediately took steps to internally punish me in accordance with existing administrative procedures.
So what does all this mean for Donald Trump?
Of the thousands of documents seized at Mar-a-Lago, about 150 were marked as classified. Will Trump go to jail for mishandling this material? Almost certainly not. Secret documents are constantly mishandled. In my own case, the government cited Agency Case No. 2005-0237 as a comparative example, where a diplomatic courier lost 12 diplomatic items abroad, including four bags of top secret documents. The three-day suspension was mitigated by a reprimand.
Can the classification system be twisted to create a kind of courtroom drama that influences Trump? Almost certainly yes. That decision rests with Attorney General Merrick Garland. Trump could be prosecuted for a minor offense of mishandling classified material (although it is unlikely that one party’s attorney general would bring such a case against a potential opposing candidate, at least in an American democracy).
There is, of course, the elephant in the room, the possibility that during his tenure Trump declassified some documents, which he was able to do. Given that there are no established declassification procedures created by the various executive orders establishing the classification system, this could just as easily amount to Trump saying that he declassified the documents despite… well, no word, just a lack of evidence that the documents were declassified.
Trump could also effectively argue in the same vein as above that at least some of the documents were classified, incorrectly classified, or no longer needed to be classified. It will take place in some forum, perhaps in a courtroom, paragraph by paragraph, since most classified documents are usually delineated in this way. Remember, while there are negative consequences for misrevealing information, there are no consequences for over-secreting.
In the Wikileaks case, of over 251,287 documents released, the Department of Defense was forced to conclude, due to excessive secrecy and time, that “no real harm” had been done to the United States. The Department of Defense wrote with “high confidence that the disclosure of the Iraq dataset will have no direct personal impact on current and former U.S. leadership in Iraq.”
The bottom line is that a real smoking gun is unlikely to appear from the basement of Mar-a-Lago. The overclassification, and the precedent it created, all but assures that Trump’s security breaches were minor and probably not significant.