S2 E6: Over-Classified

Walt Shaub: Welcome to The Continuous Action. I’m Walt Shaub.

Last year and through this past winter, the nation was treated to news reports of first a former president, then a current president, and then a former vice president being caught with classified records they shouldn’t have had in their possession.

I’m talking about Donald Trump, Joe Biden, and Mike Pence. In the case of Joe Biden, it was records that he had retained from when he was vice president. Now, I’m not trying to draw a false equivalence here. What former President Donald Trump did was far worse than what the other two did. These things are not even in the same league. Former President Trump resisted efforts by the National Archives and then the Department of Justice to recover those classified records.

There are allegations of lying and obstruction by either him or his representatives, and after the FBI got a warrant and collected the documents, the former president doubled down. Here’s how he characterized it.

Donald Trump: The break in of my home concerning the so-called document hoax case, this is a new hoax, the document hoax.

Walt Shaub: Oh, okay. Okay. Sorry, Mr. Former President, I mean “document hoax.”

In contrast, Joe Biden and Mike Pence immediately reported the discovery of classified records in their possession to the government, and they gave the government access to locations where they were found. Of course, the Biden White House wasn’t nearly as forthcoming with the public as they should have been about the discovery of these records. They waited over two months before disclosing the discovery of these classified records and then didn’t initially disclose that the records were found in more than one location. That’s frustrating.

So again, there’s no comparison. With that said, it’s pretty ridiculous to find classified material jammed into a box next to the president’s Corvette in a private garage.

Joe Biden: By the way, my Corvette’s in a locked garage. Okay, so it’s not like you’re sitting out in the street.

Walt Shaub: Oh, sorry, Mr. President, I mean “locked garage.”

Really, what’s going on here? This kind of negligence would be potentially career-ending for a rank and file employee of the federal government, or it could keep a former federal employee from rejoining the government in a position that requires access to classified records. This may once again prove to be a case of people at the top of government being held to a lower standard than the people who work for them.

That kind of thing always bothers me. But maybe there’s something else going on here too. Maybe inside the beltway that runs around the nation’s capital, there’s something of an open secret about classified records, something the government knows and lots of people who work for the government also know: There are too many classified records. The government classifies way too much information.

And that, dear listeners, is today’s topic.

There are many reasons for over-classification. Some are systemic and some, well, they may be more nefarious. Here’s a clip from an interview I did of an inspector general last year. This is John Sopko. He’s the Special Inspector General for Afghanistan reconstruction, and when he was trying to tell the public how badly things are going in Afghanistan for U.S. troops and our allies, the government blocked some of what he wanted to share by classifying it.

John Sopko: I worked for Sam Nunn, famous Georgia senator, one of the leaders on national security for years. I worked with him for 15 years, and the one thing he taught me is the government doesn’t classify good news. And if by mistake it does, it leaks it. So, we knew this wasn’t good news, but maybe if the American people had seen in 2017 and ’18 how bad it was, maybe we wouldn’t have continued this way.

Maybe we would’ve had a more gradual end to this thing because the American people and Congress would’ve said, “Hey, we’ve got to slow this down, we got to stop what we’re doing, we’ve got to change what we’re doing,” because it wasn’t working. And that’s the sad thing. Over-classification and this over-exaggeration of success unfortunately, I think led to people getting killed. And it definitely led to millions of dollars being wasted. We could have pulled the plug earlier, but that’s a decision for the policymakers, not me.

Walt Shaub: That’s pretty bad. There’s also times when over-classification reaches such proportions, it’s almost comical. There’s the time when the government classified a mountain. You heard that right. A mountain. Ridiculous, right? I mean, the mountain is there. What can you do about it? This came up in an interview that Salon did with famed documentary director Alex Gibney. I don’t have audio of the interview, but here’s what he said:

“That reminds me of what happened when I went down to Guantanamo in 2006, and we were taking some establishing shots. We pointed our camera in one direction and a reminder said, ‘You can’t shoot that mountain.’ I asked ‘Why not?’ And she said, ‘That mountain is classified.’ Even the lieutenant who served as their liaison was like, ‘Yeah, that’s ridiculous.’”

Gibney recounts that they pulled up the mountain on Google Earth to show their guide that the mountain was already on the internet, but she wouldn’t relent. How bonkers is that? Welcome to Classified Mountain. I’ll drop a link to that interview in the show notes.

Well, folks, I decided to dig into this issue of over-classification a bit. For that, I tracked down an expert Elizabeth Goitein from the Brennan Center. The story only gets more wild from here. What she says about the sheer volume of classified records being generated each day is just breathtaking. Let’s go to the interview.

Elizabeth Goitein: There’s a cable from 2006 in which a U.S. diplomat spent a couple of paragraphs describing a typical wedding in the Russian Republic of Dagestan. We’re talking truly mundane details, like, “Weddings take place in discrete parts over three days. On the first day, the groom’s family and the bride’s family simultaneously hold separate receptions.” These statements, these paragraphs were individually classified as confidential, meaning their disclosure could reasonably be expected to cause damage to the national security.

I mean, that’s kind of funny, but there are more nefarious examples as well — or at least more problematic ones.

After 9/11, the Bush administration publicly justified the indefinite detention of terrorist suspects like Guantanamo by saying that the detainees were “the worst of the worst,” but the actual risk assessments of the detainees, which the government had produced, were classified. It turns out that some of these assessments contained just one thing, a statement that there was no recorded reason for the detainees’ transfer to Guantanamo. By definition, that does not reveal any intelligence sources or methods. What it reveals is that the government wasn’t telling the truth to the American people when it said that all of these detainees were the worst of the worst, and that the U.S. government was holding people indefinitely, literally without knowing why it was holding them.

Walt Shaub: Wow, that’s amazing. I was going to ask next, what kind of incentives push government officials to classify information that doesn’t need to be classified? I think in a case like that, it’s pretty obvious they just didn’t want to be embarrassed. Are there other incentives that push towards classification?

Elizabeth Goitein: There are. There are so many reasons, other than national security, why an official might classify information. I mean, one end of the spectrum is the one we were just talking about. Classification is a very effective way to conceal government misconduct, and that doesn’t have to be violations of the law. It can be just embarrassing instances of incompetence, for example.

Classification is also a way to avoid public debate and pushback for policies that are going to be controversial. So, think of the NSA’s bulk collection of Americans’ phone records, for instance.

Classification can be a useful weapon in turf wars between agencies. It can enhance the perceived importance of a document or of the official who wrote the document.

But if I had to guess, I think the biggest single factor is that national security officials are busy and risk-averse, and it’s faster and easier to classify by rote instead of giving the decision careful thought.

I mentioned earlier that most people who classify information are doing so derivatively. Basically, they’re marking information that someone else, an original classification authority, has determined has to be protected. The main way these derivative classifiers know what information has, in fact, been classified is through agency classification guides — basically, a set of manuals that are supposed to capture all of the relevant classification decisions.

There are literally thousands of these guides. Some of them run hundreds of pages long, and they are not always very user-friendly. And so again, if you’re someone who works with classified information and you’re writing an email on a subject that could potentially touch on classified matters, you’re not necessarily going to take the time to refer back to the relevant guides and figure out which paragraphs of your email have classified information in them and what the right marking for each paragraph should be; you’re going to classify the entire email at the highest level you can get away with, and leave it at that.

And there are just no downsides to that approach, because while there are serious penalties for officials who fail to protect sensitive information, no one has ever been penalized for classifying information unnecessarily. There is no system in place to even identify people who are misusing the classification system in that way, let alone hold them accountable.

Walt Shaub: Who makes these decisions?

Elizabeth Goitein: There are roughly 2,000 executive branch officials who are authorized to classify information in the first instance. They’re known as original classification authorities, or OCAs. They have extremely broad discretion to classify information. Basically, if the information falls within a list of very broad categories such as, for example, foreign relations or foreign activities of the United States, and if they assess that releasing the information would harm national security, they can classify it. That’s pretty much it.

There are close to 4 million people inside and outside the federal government who have security clearances that give them access to classified information. And when these people write or produce documents, emails, texts that include classified information, they have to mark that information as classified. And that process of marking is known as derivative classification, which will prove to be important in this discussion because it’s the source of a lot of the over-classification problem.

Walt Shaub: Could over-classification have the effect of harming national security?

Elizabeth Goitein: Yeah, I think it unquestionably harms national security in at least a couple of ways. First, and most obviously, it impedes information sharing within agencies, between agencies, and with private partners in situations where the sharing of information can be critical in heading off a national security threat. The 9/11 Commission actually looked at over-classification and found that it was one factor in the U.S. government’s failure to prevent those attacks.

The less obvious problem is one that has really reared its head in recent news stories. When classified information reaches the volume that we have today, it overwhelms the system for protection that we have in place. There is inevitably going to be what the government calls “spillage,” which is when classified information ends up, usually unintentionally, in electronic or physical locations not designed for protecting classified information.

And this dynamic is compounded by the fact that officials really lose respect for the system. They know that much of the classified information they see every day is completely innocuous, and so they can rationalize cutting corners and maybe not triple-checking every stack of documents they bring home to make sure there’s no classified documents slipped in there. Of course, the problem is that some classified information truly is sensitive, and so the strain on the system caused by the unnecessary secrets places the necessary ones at risk.

Walt Shaub: Are we talking about a few isolated cases, or is over-classification a widespread problem?

Elizabeth Goitein: It’s rampant. No one disagrees with that. The current director of National Intelligence has said this is a major problem. Past government officials have estimated that anywhere from 50% to 90% of classified documents could safely be made public.

Walt Shaub: So, stepping back and looking at big picture principles here, how is over-classification harmful to democracy itself?

Elizabeth Goitein: The American people can’t engage in public debate over government policies or actions that they don’t know about. They can’t weigh in at the ballot box. They really can’t engage in informed self-governance, which is what democracy is all about.

I’ll give you an example. I mentioned the NSA’s bulk collection of Americans’ telephone records. This program went on for years, and the public had no idea because it was classified. After Edward Snowden leaked the existence of this program, there was an immediate public outcry, and that ultimately led to Congress passing a law, the USA Freedom Act, which ended the NSA’s bulk collection program and prohibited bulk collection under a range of other surveillance authorities. When the program was classified, that democratic process couldn’t play out; the system couldn’t work. When it became public, it could.

We’re actually sort of halfway through a similar situation right now. In 2022, through the Herculean efforts of two U.S. senators, Senators Wyden and Heinrich, we learned that the CIA has for years engaged in a bulk collection program that pulls in an unknown amount of Americans’ data. But because the CIA has refused to declassify any other information about the program, including what type of data is being collected, what percentage is Americans’ data, how the CIA is permitted to use that data, et cetera, we’re just not seeing the same level of response by the public and by lawmakers that happened after Snowden revealed the NSA’s bulk collection.

Because we don’t have the information we need to engage through the democratic process.

Walt Shaub: So, how long do documents stay classified?

Elizabeth Goitein: Classified information is supposed to be automatically declassified after 25 years, unless it falls within a list of exemptions. In practice, there is no such thing as automatic declassification. Instead, every agency that has any equities whatsoever in the information performs its own lengthy review, and if any agency finds even one word in a document that’s exempt from declassification, they often just withhold the entire document.

Walt Shaub: Do we have any kind of sense of the numbers we’re dealing with here?

Elizabeth Goitein: Yeah, so there is a board that provides advice to the president on classification and declassification policy, and they issued a report in 2012, which is a long time ago, so keep that in mind because there’s been much more classified information since then. But what they said in this report is that at one intelligence agency alone, it is estimated that approximately one petabyte of classified records data accumulates every 18 months. One petabyte of information is equivalent to approximately 20 million four-drawer filing cabinets filled with text.

Under the current declassification model, I’m still reading from the report, it is estimated that one full-time employee can review ten four-drawer filing cabinets of text records in one year. In the above example, it is estimated that one intelligence agency would therefore require 2 million employees to review manually its one petabyte of information each year. Similarly, other agencies would hypothetically require millions more employees just to conduct their reviews.

That’s actually the system we have right now, where agencies are manually reviewing documents for declassification purposes when they reach this point of supposedly automatic declassification, and that’s why the system is basically destined for catastrophic failure.

Walt Shaub: Catastrophic failure. Now, that’s a dire warning. It’s time for change. Whatever you may think of the negligence on the part of Mike Pence and Joe Biden in failing to return classified records after they ended their terms as vice president, I think it’s clear there’s a bigger issue here.

The government is drowning in secrets. And most are secrets that don’t need to be kept secret.

Well, that’s it for this week’s episode of The Continuous Action. I’m Walt Shaub. The Continuous Action is produced by Myron Kaplan and hosted by the Project on Government Oversight, POGO.