The ongoing investigations into handling of sensitive documents by former presidents and vice presidents have brought potential problems with the classification system back into the spotlight.
The national intelligence director did not mince words: the government has an over-classification problem.
“Over-classification undermines critical democratic objectives, such as increasing transparency to promote an informed citizenry and greater accountability,” said Avril Haines, director of national intelligence, during a conference at the Lyndon B. Johnson Presidential Library in Austin last week. It also undercuts “the basic trust that the public has in its government” as well as “negatively impacts national security,” she said. This was not the first time she’s spoken on these issues.
“We must keep certain information secret or we will not be able to do our job in the intelligence community,” she continued. “But it does have to meet a national security standard.”
Over-classification is an issue that has been debated by lawmakers and transparency advocates for decades. Now, with two special counsels looking into the handling of classified documents by presidents Trump and Biden, conversations about over-classification are back in the spotlight. Classified documents were also found at former Vice President Mike Pence’s home in Indiana, and the National Archives asked representatives for former presidents and vice presidents from the last six presidential administrations to re-check their personal records for ones that should have been turned over, CNN reported on January 26.
The discovery of documents at the homes of Trump, Biden and Pence, which in two of the cases went years without notice, are “a reflection of the explosion” of classified documents, said Alissa Starzak, acting chair of the Public Interest Declassification Board, an advisory committee established by Congress in 2000. The scope of those documents is unknown.
“I think that we can do a better job protecting secrets if we have a smaller number of things that are secrets,” she said. “We can do a better inventory.”
Senators from both parties “have been working for years on the notion that we over-classify,” Sen. Mark Warner, D-Va., chairman of the Senate Select Committee on Intelligence, said in a joint appearance with Sen. Marco Rubio, R-Fla., ranking member of the committee, on CBS’ “Face the Nation” on Sunday.
Haines “has been at least acknowledging and long before this issue came up, said we need to work on this issue of declassification, over classification,” Warner said. “Every director says it, and then it kind of gets pushed back, I think. One good thing that may come out of this is that we're going to find a way to resolve this issue ... going forward.”
“Basic Good Governance”
The Brennan Center for Justice at the New York University School of Law, a long time advocate for more declassification, said in a report in 2011 that while there are various ways to declassify material, “the fact remains that a document, once classified, will likely remain classified—and unreviewed with respect to whether it should be classified—for many years.”
Reforms to the declassification system have been needed for a very long time, said Evan Gottesman, who has been a professional staff member on the Senate Intelligence Committee since 2005, on Thursday at a public meeting for the Public Interest Declassification Board. The issue is “very bipartisan, it's almost nonpartisan,” he said.
With “what is going on now with these classified records [held by former presidents and vice presidents], I don't know whether it will have any impact [on potential reforms], but I hope it doesn’t get in the way of the momentum that we have here or unnecessarily complicate it,” Gottesman continued. “As [acting board chair Starzak] said, this is basic good governance, it's not political…but it has to happen and it has to happen in a bipartisan way.”
One issue is that the Defense and Energy departments and all of the intelligence community agencies are “producing classified records on different systems that don’t talk to each other,” said Ezra Cohen, a board member who recently served as chair and, as Politico reported in September 2021, was praised for his role despite having a controversial stint in the Trump administration. “We need to do a better job knowing what we have.”
Recent efforts to get documents on the President John F. Kennedy assassination declassified provide “a real case study in I think what's wrong with the system,” Cohen said. “After so many years, all that information, which has been withheld–[much] of it just because we simply didn't have the resources to look at it–just think of all the questions that have been created, because we couldn't have more transparency.”
Starzak and other board members noted that there is no longer current data on classification decisions. The Information Security Oversight Office, housed within the National Archives and Records Administration, stopped counting annual classification decisions in 2017 because the numbers being reported were not consistent and did not reflect the classification that occurs in a digital environment.
All presidents going back to President Franklin Roosevelt, with the exception of President Trump, have issued executive orders defining the classification system.
The Public Interest Declassification Board is continuing to work this year on recommendations for reforms to a 2009 executive order from President Obama on the handling of classified information that exists alongside specific laws governing the classification of information on nuclear weapons and intelligence, sources and methods.
Intelligence director Haines in mid-August wrote to Sens. Ron Wyden, D-Ore., and Jerry Moran, R-Kansas, two lawmakers very active on this issue, telling them that federal agencies and departments are taking part in a White House-led process to address possible reforms to the executive order.
Hopes for Reform
It’s unclear how the recent findings of classified documents at the homes of former presidents and vice presidents will affect potential reforms to the classification system, said Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program. “I certainly hope that it will not derail [the reforms] because it's too important.”
There are many unknowns about the document discoveries, Goitein acknowledged. “The connection for me is that I think over-classification causes officials to either lose respect for the systems, cut corners or simply make mistakes because the sheer volume of classified information creates a huge challenge in terms of consistent compliance with the rules for protection,” she said.
Observers suggested a range of reforms.
Tom Blanton, director of the National Security Archive at The George Washington University, said “computers have enabled the almost infinite proliferation of classified items.” Having a real, automatic sunset for declassifying documents “would be the biggest reform we could make.”
He also said that the Public Interest Declassification Board and Information Security Oversight Office as well as the Interagency Security Classification Appeals Panel and National Declassification Center each need some degree of additional authority, responsibility and/or resources.
Matthew Connelly, Columbia University professor, historian and author of the forthcoming book, “The Declassification Engine: What History Reveals About America's Top Secrets,” would like to see Congress use its power of the purse to earmark money for declassification as the government spends exorbitantly more on classification as opposed to declassifying material. The courts should also reconsider the precedent from the landmark United States v. Reynolds decision in 1953 that established the modern framework for the state's secret privilege, he said. The over-classification problem has led to a “culture of secrecy” that needs changing.
“I think it's an illusion to think the executive branch is going to reform itself when it comes to secrecy,” Connelly added.
Liz Hempowicz, vice president of policy and government affairs at the Project on Government Oversight, said that while it’s never good to find misplaced documents, the revelations about Biden and now Pence show that there is a “systemic problem” with how records are handled in the government. She added that while over-classification is a big issue, another that needs attention is the retention of government records, especially during presidential transitions.
Ian Sams, special assistant to President Biden and senior advisor to the White House Counsel’s office, declined to comment to Government Executive on whether the president was considering any actions to reduce the number of classified documents, as previous presidents have.
During a briefing on January 24, White House Press Secretary Karine Jean-Pierre was asked if the White House is considering a review of the policy on classified materials given the challenges that members of both parties are seemingly facing. She referred questions to the White House Counsel’s Office, as she has done with the vast majority of questions directly and indirectly related to the Biden documents situation.
When asked if there is an overclassification problem during a briefing on January 25, John Kirby, National Security Council spokesman, said, “it's always a balance” and something the intelligence community and NSC works on.
“I wouldn't go so far as to slap a Band-Aid on and say, ‘yeah, everything is over-classified,’ ” he said. “But it's a balance that we try to strike to make sure that everything is appropriately marked and appropriately handled…It varies from document to document and from issue to issue.”