The U.S. has an overclassification problem, says one former special counsel

For months, classified documents have been turning up in places where they're not supposed to.

First, there was the discovery of hundreds of classified documents inappropriately stored at Donald Trump's Mar-a-Lago estate in Florida. Then, in recent weeks, the discovery of classified documents at President Biden's home and private office.

While these cases are different in scope and circumstance, both demonstrate mishandling of sensitive information – and they have renewed the scrutiny on how the government classifies its documents.

"There's somewhere in the order of over 50 million documents classified every year. We don't know the exact number because even the government can't keep track of it all," Oona Hathaway, a law professor at Yale University and former special counsel at the Pentagon, told NPR.

Hathaway said the rate at which the government classifies documents has created a problem that ultimately makes it harder for the public to hold the government accountable. She spoke with NPR about some of the reasons behind the issue and one of her suggestions to help.

Interview Highlights

On the ways that overclassification of government documents might be a problem

There are a lot of reasons we should care. Probably the first one is that when a document is classified, it means that people in government who have access to that information really can't talk about it. They can't tell the American people what they know. They can't explain it. American people can't see it. And so it makes it very difficult for the American people to know what their government is doing when that information is classified. It also creates all kinds of problems for reporters, because when reporters get access, the information potentially makes them vulnerable to prosecution for violation of the Espionage Act for disclosing classified information. So it creates a lot of problems for democracy and for transparency of our government.

On how overclassification is not a new issue and why it continues to get worse

It's been a problem for decades. People who have been looking at classification and thinking about classification have recognized for a very long time that the system is out of control. And there have been various efforts to try and rein it in over time. President Clinton tried to limit the use of classification and encourage declassification; it didn't really work.

The data that we have is pretty imperfect, but when we look at the data that we can get, presidency after presidency, we see the numbers going up. And that's despite the fact that many presidents have been kind of trying to reign this in. President Obama also tried to make an effort to encourage declassification and he created a center whose job was supposed to be to encourage declassification, and yet the numbers just kept going up.

Part of that is because the incentives for people in government haven't changed. You know, if you're a person sitting at a desk and you're making a decision about whether to classify something or not, there are generally no ramifications if you've classified something that didn't really need to be classified. But if you make it unclassified and it really should have been classified, you potentially could get in a lot of trouble. So for individual people who are making these decisions, they have all the incentive to classify a document and you multiply that over everyone who's in government, and that's part of the reason we end up where we are.

On whether the criticism of overclassification is fair, in Biden's case currently and previously with former President Trump

Well, it's hard to know exactly what's happening with the Biden administration because we haven't seen those documents. And so it's hard to know if those are documents that really should not have been classified. The fact that they're mixed in with a lot of documents that were not classified is suggestive that they were just part of a set of files where classified information kind of got snuck in and they inadvertently took the boxes with them when they left. But again, we don't have a lot of information.

We do have a little bit more information about the materials that were retained by the Trump administration, by President Trump when he left. We have that famous photo of the sort of files on the floor. And you can see if you look at those pictures, that many of those documents were what's called top secret SCI, which is special compartmented information. That is the most highly classified information the U.S. government has and includes HUMINT, that is human intelligence and special intelligence.

I mean, this is the kind of information that is the most likely to do damage to the U.S. government - again, without seeing the actual documents. Hard to say with certainty, but these are the classifications that are reserved for the material that is the most highly protected set of secrets the U.S. government has.

On Hathaway's suggestion to declassify records after ten years, with very few exceptions, instead of the current policy of 25 years

25 years really isn't working, and so we need to ramp it up, I think, and make it clearer. Also, in my experience, when you look at these documents, the things that are likely to do real damage to national security are about current programs, current events, planned missions and the like. That's the sort of thing where, if you release that information, you really could put individuals at risk, you could put missions at risk, you could put programs at risk. After ten years, that's much less likely. I included within my recommendation as well that anything that has to do with actual individuals – we call them spies colloquially, but somebody involved in human intelligence – that information should be retained as classified for a long period of time. But after ten years, generally, the information is pretty stale. And therefore, there's not as much justification for the U.S. government to continue to keep it secret.

There should be systems in place that encourage individuals to really seriously consider the decision to put a high classification marking. We have technology now that can help with these decisions, we really should be using it. And we should be much more aggressively declassifying information because we're creating, every year, 50 million new documents that are classified, but we're not declassifying anywhere close to that rate. And we could be doing much more when it comes to actually pushing that information back out that no longer needs to be kept classified.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

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