The system for labelling and tracking classified documents in the United States appears to be broken, with potentially serious consequences for the country’s national security, lawmakers, former officials, and academics said Tuesday.
The discovery of classified documents at former Vice President Mike Pence’s private home is the latest in a string of revelations involving both the Trump and Obama administrations, raising questions about how the government classifies material as secret and manages those documents, including after a president leaves office.
Both Democratic and Republican lawmakers said there was a “systemic failure” if the Obama and Trump administrations were unable to keep track of classified documents after their terms ended.
“What the hell is going on around here,” said Florida Senator Marco Rubio, the ranking Republican on the Intelligence Committee. “Look, there is clearly a systemic problem in the executive branch. We’re talking about two administrations from two different parties, with top-level officials having documents in places where they don’t belong.”
“Nobody is above the law,” said Florida Senator Rick Scott. I have no idea how anyone ends up with classified documents. Everyone should explain how they came into possession of classified documents.”
According to Loch Johnson, a professor emeritus of public and international affairs at the University of Georgia, the aides and officials charged with ensuring secret documents are always in a “chain of custody” appear to be failing on the job.
“It’s their job to make sure these busy policymakers understand the importance of classification and return the documents to their proper place,” said Johnson, a former intelligence committee aide who advised previous administrations on intelligence issues.
“There’s an incredible amount of sloppiness in the handling of these documents,” Johnson said. “Strong penalties are needed for people in the chain of custody who do not take their jobs seriously enough.”
Staff members at the White House are supposed to log every classified document, assign it a number, and keep track of it so that it can be accounted for at all times. Former officials say the process stalled during Trump’s presidency due to the president’s habits and some inexperienced staff members. However, supporters of the former president have strongly denied this portrayal.
Legislators and staff members with clearances in Congress must follow strict rules and search materials in secure rooms.
“When I read a document, I have to sign for it and return it before I leave,” said Foreign Relations Committee Chairman Sen. Bob Menendez, D-N.J.
“What must be considered is the entire nature of what is classified and what is not, and under what conditions.”
“But, until that happens,” he said, “they should be preserved in places that pose no threat to national interests or security.”
The sheer volume of material labelled as secret, according to Elizabeth Goitein, a national security law expert at the Brennan Center for Justice, a think tank at New York University School of Law, is overwhelming the White House and federal agencies attempting to make decisions and govern.
“Every year, you make 50 million classification decisions, 90% of which are probably unnecessary. That’s a lot of rules to follow at all times of the day and night. And some of that will slip,” Goitein, a leading expert on overclassification, predicted.
She believes that presidential transitions, particularly hasty transitions, can exacerbate the difficulty of managing sensitive government documents.
“I believe the chain of custody becomes much more problematic in the context of a presidential transition. “That could be part of what we’re seeing here, especially when those transitions are hurried,” Goitein speculated.
Former Intelligence Committee chair Democratic Rep. Adam Schiff of California told NBC News’ Andrea Mitchell that “there also needs to be a view of what happens when people leave that office, the presidency and vice presidency.”
Lawmakers on both sides of the aisle said the consequences of failing to track secret documents were concerning for national security.
“We clearly lack an effective management system to oversee where classified documents go and how they’re retrieved,” said Utah Republican Senator Mitt Romney. “And look, sloppiness does not look good on a president or vice president, current or former, and it is an embarrassment to us, as well as a potential threat to national security.”
Senator Sheldon Whitehouse, D-RI, said the executive branch has abused its authority to classify and declassify documents at times. Whitehouse stated that executive branch officials will strategically declassify certain documents, for example, when doing so gives them an advantage in dealing with congressional oversight.
“The legislative branch is unable to respond in kind in such cases,” he said, because the rebuttal is classified.
“Perhaps one good thing that comes out of this mess is that we review what is clearly a defective process that is frequently used for strategic advantage against legislative oversight,” Whitehouse said.
According to Goitein and others, the recent discovery of classified documents presents a political opportunity for the White House, and possibly Congress, to finally address the issue.
For decades, current and former officials, as well as Congress, have warned about the growing problem of “overclassification,” or labelling too much information as secret.
The 9/11 Commission Report, which examined how the federal government failed to recognise danger signs prior to the September 11, 2001 attacks, warned in 2004 that “current security requirements foster overclassification.”
Presidents have issued executive orders to try to limit the practise and hasten the declassification of older documents. However, information relating to the 1961 Bay of Pigs disaster was not declassified until more than 50 years later. Some documents related to President John F. Kennedy’s assassination in 1963 were only recently released, while others remain classified.
“There’s classified information and then there’s classified information,” former President Barack Obama said in 2016. “There’s stuff that’s really top secret top secret, and stuff that’s being presented to the president or the secretary of state that you don’t want on the transom or going out over the wire but is basically stuff that you could get from open source.”
Goitein and others have proposed standardising and simplifying classification rules, as well as limiting the discretion of those who make classification decisions. Goitein has called for officials who unnecessarily label material as secret to face penalties. According to experts, the federal bureaucracy currently has a strong incentive to label information as secret.
Critics of the classification system have long argued that by labelling an unmanageable amount of information as secret, the government risks jeopardising genuine secrets that must be protected.
In 1997, the late Sen. Daniel Patrick Moynihan, D-N.Y., oversaw a bipartisan report recommending that government secrecy be reduced while sensitive information vital to the country’s national security be protected.
“Returning secrecy to its limited but necessary role is the best way to ensure that secrecy is respected and that the most important secrets remain secret,” the report stated. “Secrets can be more effectively protected if secrecy is reduced overall.”
The recommendations of Moynihan were not implemented.
