By Elizabeth Goitein / The Nation
With a sitting president, a former president, and a former vice president now implicated in the mishandling of classified information, the classification system itself is coming under scrutiny. This attention is long overdue. But there’s a danger that some observers will conclude that we need stronger protections for our nation’s secrets, such as tighter handling restrictions or enhanced penalties for violations.
That would be exactly the wrong response. The problem is not that we protect too little; it’s that we classify too much. To better safeguard sensitive information, we must stop trying to safeguard information that isn’t sensitive.
Let’s begin by putting the news in context. The attorney general has—appropriately—appointed a special counsel to investigate President Joe Biden’s case, and it’s possible that he will do the same for former vice president Mike Pence. For now, though, there is no public evidence that either of their transgressions was deliberate. And while unintentional mishandling of classified information can in some cases put national security at risk, it’s a common occurrence. Indeed, agencies have standard protocols in place to address “spillage”: classified information that turns up in electronic systems or physical locations intended for unclassified information.
When spillage is detected, protocols emphasize moving swiftly to restore controls over the misplaced information. That’s one critical way in which the Biden and Pence cases differ from that of former president Donald Trump. Biden’s lawyers promptly notified the National Archives of their findings and turned over all the documents they found. By contrast, national archivists flagged Trump’s retained documents as missing, and the FBI ultimately had to search Trump’s resort after his team first failed for months to return all the documents voluntarily and then disobeyed a subpoena. In other words, Trump willfully retained documents he had no authority to possess.
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Nonetheless, even when the mishandling of classified information is inadvertent and quickly rectified, it raises national security concerns—and its prevalence raises questions. Why are lapses so frequent when the stakes are ostensibly so high? And what can be done to prevent them?
Some might conclude that the procedures in place for handling classified information are too lax. But that’s not the case. The protections for classified information are rigorous and extensive. The culprit lies elsewhere, in the original sin that underlies almost all the dysfunctions of the classification system: overclassification.
Government officials have long acknowledged that overclassification is both real and rampant. Insiders have estimated that anywhere between 50 and 90 percent of classified documents could safely be made public. With 50 million classification decisions made each year, that’s a jaw-dropping volume of unnecessary secrets.
The current system almost guarantees this outcome. Authorized officials have nearly unlimited discretion to classify information, and the agency manuals that are meant to capture these decisions are often unwieldy or unclear. As a result, those who work on national security matters face daily judgment calls about whether to classify or apply markings to documents. They routinely default to secrecy. After all, a failure to protect sensitive information can lead to severe penalties, while no one has ever been penalized for classifying information unnecessarily.
Overclassification produces a range of harms, many of which are intuitive. It inhibits democratic debate and self-governance: The people cannot weigh in on government actions that are taken in secret. It also undermines the rule of law, as classification can be used to shield governmental misconduct. And it stanches the flow of information to Congress and the courts, interfering with their constitutionally assigned oversight functions.
Overclassification also harms national security by preventing the timely sharing of threat information, both within and outside of government. The 9/11 Commission concluded that overclassification was a factor in the government’s failure to prevent the attacks on the World Trade Center and the Pentagon.
There’s another national security harm, though, that’s far less obvious. When so much information is classified, the burden of protecting it can become overwhelming. Officials must separately mark each classified paragraph in every e-mail or text message they send. Any conversation that might include even a passing reference to classified information must be moved to a secure facility, and colleagues without the requisite clearance must be excluded. All work involving any modicum of classified information must be performed on secure systems, without regard to travel or family demands that place those systems out of reach.
Under these circumstances, it’s no wonder that busy officials cut corners—or simply make mistakes. And they can rationalize these departures because they know that much of the information isn’t particularly sensitive. Overclassification thus not only makes consistent compliance with the rules more difficult; it causes officials to lose respect for the system. The result is predictable. In rejecting the government’s bid to stifle publication of the Pentagon Papers, Supreme Court Justice Potter Stewart wrote, “When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless.”
The problem, of course, is that some government information truly merits the “top secret” label and requires faithful protection. By deluging officials with unnecessary secrets, overclassification puts the necessary ones at risk. Fortifying or adding to existing procedures for protecting classified information would make this problem worse, not better. What’s needed is what blue-ribbon commissions, lawmakers, and advocates have been urging for decades: reforms that will rein in overclassification.
There are some concrete, immediate solutions that the government can implement. As I have proposed elsewhere, the government should narrow the substantive criteria for classification, revamp agency classification guides, and create audit systems that identify and hold accountable officials who deliberately or routinely overclassify. Moving forward, the government should invest in developing machine-learning systems (algorithms that can recognize patterns of words or phrases) to help identify and mark classified information.
Whether these reforms will happen depends on Biden himself. Classification rules are largely set by executive order; since the inception of the modern classification system, every president except Trump has issued an order on the subject. Biden was reportedly working on a new order as of last June. The revelation that Biden is among the many who have mishandled classified documents should not derail this effort. The best way for Biden to show that he’s serious about protecting our nation’s most critical secrets would be issuing an order that tackles the root cause of the classification system’s many failings.