How the U.S. government classifies information has become an unexpected hot topic following the revelations that both former President Donald Trump and President Joe Biden improperly possessed classified documents, with the opaque classification process drawing fresh scrutiny.
Biden’s personal attorneys said they first discovered classified documents in early November at the Penn Biden Center. Biden’s lawyers have since found more classified documents at Biden’s Wilmington home in December and January, and the DOJ found more when it conducted its own search last month. The FBI also conducted an unprecedented raid of Mar-a-Lago in August.
CLASSIFICATION REFORM ADVOCATES SEE HOPE IN BIDEN AND TRUMP SAGAS
Considering how many of those records were likely classified to begin with reveals a U.S. government system of hundreds of officials with classification powers who are typically incentivized to deem information as such. As a result, there has been an explosion in the number of classified records over the years. Advocates for fixing the intelligence community’s overclassification problem see opportunities for reform after the discovery of the Trump and Biden records.
The president has ultimate classification and declassification authority, meaning the ability to essentially do as he chooses. The classification system began to be built through World War Two and Cold War era directives, but President Barack Obama issued an executive order in 2009 that still largely governs who can classify information and how.
“Protecting information critical to our Nation's security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities,” Obama contended in the order.
Information can be classified only by officials known as “original classification authorities” (OCAs). Those OCAs include the president and vice president, agency heads, and other officials designated by the president or delegated the power.
The National Archives said in 2021 that there are hundreds of OCAs spread across sixteen federal agencies. These agencies have designated 671 top secret level OCAs, 817 secret level OCAs, but only three confidential level OCAs, indicating the U.S. government considers confidential information as fairly low risk.
Ezra Cohen, the Trump-appointed and now-former chairman of the Public Interest Declassification Board, shed light on the problem of overclassification in December.
“There is this incentive to over-classify,” Cohen said at a Hudson Institute event. “Right now, if you create a classified record within the intelligence community, the level of automation is simply saving what your default preference is for classification. … If you under-classify, you could have a negative consequence, which is that you could lose your security clearance, but if you over-classify there is no consequence. So people just select the default, and they select the high default, without thinking about it much.”
The Obama executive order says information can only be classified if “the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security … and the original classification authority is able to identify or describe the damage.” The order adds that “if there is significant doubt about the need to classify information, it shall not be classified.”
The information being considered for classification must also fall under certain categories: military plans and systems, foreign government information, intelligence activities including sources and methods, foreign activities or foreign relations of the U.S., technological or economic matters tied to national security, safeguarding nuclear programs, the vulnerabilities or capabilities of systems tied to national security, or weapons of mass destruction.
The three main categories of classified information are top secret, secret, and confidential.
Federal regulations say information can only be classified top secret if “its unauthorized disclosure could reasonably be expected to cause exceptionally grave damage to the national security.” Likewise, information can only be classified as secret if its unauthorized release could be expected to cause “serious damage" to national security. And information can only be classified as confidential if it could cause “damage” to national security.
President George W. Bush issued an executive order in 2003 extending original classification authorities to the vice president as well, although the expansiveness of or limitations on the vice president’s powers, especially related to declassification, have not been tested much.
When a president declassifies information, the normal process involves the relevant agency reviewing the classified information related to any challenge to national security or any exposure of sources and methods that declassification might pose, but multiple presidents have simply declassified pieces of information immediately. OCAs can also typically declassify the information they personally deemed classified, and agency leaders can typically declassify information that lower-level officials at their agencies classified.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Trump has contended he had a “standing order” throughout his presidency that “documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them” and has repeatedly said that “everything” at Mar-a-Lago was declassified by him.
Several former Trump administration officials have cast doubt on that notion, and his lawyers often seemed to dance around the topic in legal filings.