“Some have said the federal government classifies too many documents — about 50 million a year,” comic Mikey Day declared, impersonating Attorney General Merrick Garland. “This has led some to ask: Does recovering these documents even matter?”
Those questions were front and center as a motley band of former senior intelligence officials, historians, archivists, journalists, open-government activists and even UFO researchers gathered at the University of Texas last week to assess the possibilities that the newfound attention to the issue could provided the impetus needed to rein in the national security classification system.
“We were a bit worried we’d be talking to ourselves, but I think things have changed a bit,” said Ezra Cohen, a former senior intelligence official appointed by Trump to an obscure panel that wrestles with issues of classification and transparency, the Public Interest Declassification Board. “There’s things going on in the news that, hopefully, will be another watershed moment to get a lot of these kinds of systematic reforms to the classification system across the finish line.”
PIDB member Carter Burwell, former chief counsel to Sen. John Cornyn (R-Texas), told the attendees: “We’re grateful that you’re interested in classified information now.”
Cornyn also turned out to speak to the group, lamented the excesses of the current system for classification and expressed hope that more focus on the issue could inspire changes.
“This could not be a more timely discussion, given everything that’s going on,” Cornyn said on Friday. “But it also, I think, perhaps will lead to what I consider to be some important debates and discussions and potential reforms of the classification system.”
The Texas Republican also offered some theories about why hundreds of documents with classification markings were taken to Trump’s Florida home. What appear to be smaller numbers of records with such markings have turned up in recent weeks at Biden’s Delaware home and a think tank office he used in Washington, as well as at Pence’s home in Indiana.
Garland has appointed separate special counsels to investigate the stashes of files at Trump’s Mar-a-Lago estate and the discovery at Biden’s residence. Justice Department investigators appear to be handling the Pence matter, at least for now.
Cornyn, who joined the Senate Intelligence Committee in 2017, said the wayward presidential records might stem from the dubious sensitivity of many classified briefings. That has led many in Washington to question the legitimacy of the classifications that intelligence agencies apply to their work, he said.
“One of the reasons why perhaps people become lackadaisical and less than vigilant in protecting classified information is the experience of most members of Congress when you go … get briefed [in a] secure facility on whatever it is the administration wants to brief you on and you come out of there saying, ‘I could have watched cable news and read the newspaper as much as they were willing to tell me,’” the senator said. “And so, they think, ‘Well, this is not that big a deal. You say it’s secret, but this is not a secret. It’s open source stuff. …’ But I think that’s part of why we find ourselves in the strange place we are today.”
Director of National Intelligence Avril Haines traveled to Texas to speak at the conference and bemoaned the overclassification problem. She said it had grown so severe that it was an obstacle not only to public accountability, but also to information-sharing within the government and with allies in desperate need of U.S. intelligence, like Ukraine.
“I’m just uniquely qualified as a consequence of my position, I think, to make the case for how overclassification can negatively impact national security, particularly given the current threat landscape,” Haines told the event organized by the University of Texas’ Clements Center for National Security. “Not only is this an important issue for our democracy; it is also critical to our national security.”
There are signs that some in Congress may be tuning in. The new chair of the House Oversight Committee, Rep. James Comer (R-Ky.), and ranking member Rep. Jamie Raskin (D-Md.) have agreed to work together on legislation to create a new layer of oversight, potentially through the National Archives, over the process for separating a president’s personal and political records from official ones at the end of a presidency.
“We have to reform the way that documents are boxed up when they leave the president and vice president’s office and follow them into the private sector,” Comer said on Monday at an event at the National Press Club in Washington. “This is something I think will be a bipartisan legislative fix.”
Rep. Brad Wenstrup (R-Ohio), a member of the House Intelligence Committee, questioned whether the Archives should have someone “be there at the very beginning saying before you take anything out of here, we’re going to look at it and give you a yay or nay.”
“We obviously have a problem in our system,” he added. “When are we going to talk about that? That’s where I am.”
A drive to go even further and tackle overclassification could draw together strange bedfellows. Such a move would be a logical part of a broader GOP effort to assert legislative prerogatives against the executive branch. And some Democrats who harbor longstanding doubts about the intelligence community could welcome greater sunlight on its work.
Further reforms to the classification process could become part of what many in Congress and the national security community regard as a must-pass piece of legislation that is expected to work its way through the House and Senate this year: an extension of surveillance authority known as Section 702, which allows U.S. intelligence agencies to tap into email, social media and other U.S.-based tech providers to monitor foreigners suspected of terrorism, ties to foreign governments and for other reasons.
Many Republicans are already looking for greater assurances that Americans aren’t targeted by U.S. intelligence agencies, but Cornyn suggested some reforms to the classification system could also be part of such a package.
“We can have part of a larger conversation — that 702 can be a piece of — to provide some reassurance that we’re being responsive to concerns that have been raised,” Cornyn said.
Still, the odds of major changes being enacted seem long given that national security officials, lawmakers and academics have been lamenting the problem for more than 60 years and that during that time it has, by all accounts, only grown worse.
A Defense Department committee set up to tackle the issue in 1956, during President Dwight Eisenhower’s first term, said overclassification had reached “serious proportions” and recommended an overhaul. “The use of even Top Secret has gone far beyond that contemplated,” the group wrote.
Sen. Daniel Patrick Moynihan (D-N.Y.) took up the crusade again during the 1980s and 1990s, launching a higher-profile commission that warned government secrecy was getting out of control, spurring conspiracy theories and fetishization of all things classified.
“In a culture of secrecy, that which is not secret is easily disregarded or dismissed,” Moynihan declared as he slammed intelligence agencies. “A culture of openness will never develop within government until the present culture of secrecy is restrained by statute. … The culture of secrecy in place in the Federal Government will moderate only if there comes about a counterculture of openness; a climate which simply assumes that secrecy is not the starting place.”
Congress has never passed a law comprehensively addressing classification. Indeed, legislation alone probably won’t do the trick. Questions about classification are wrapped up in unresolved constitutional issues about presidents’ executive powers, so any laws passed on the have to step gingerly around claimed presidential prerogatives or could face opposition from the White House.
For decades, national security secrets have been regulated by presidential executive orders. One that President Barack Obama issued in 2009 was never changed and remains in effect today, over 13 years later.
As Obama’s presidency wound down in 2016, then-Director of National Intelligence James Clapper floated a modest reform: eliminating the “Confidential” classification, the lowest of three major tiers of secrets. The proposal was never implemented.
While Trump often railed against classification of what he said amounted to evidence of misconduct by intelligence and law enforcement agencies, and as he battled with the so-called Deep State to wield his presidential prerogative to force disclosures, neither he nor his aides managed to implement significant reforms to the classification bureaucracy.
The bipartisan nature of the current scandals could make it easier to advance changes that limit the number of classified records and force disclosure of more secrets sooner.
Democrats have historically been skeptical about the actions of intelligence agencies, although many lawmakers on the left rallied to the side of those agencies in the face of Trump’s claims that he was unfairly scrutinized. Republicans who have been trusting of the intelligence community and law enforcement often grew more questioning during the Trump years.
Still, in the current political climate, the possibilities for partisanship to disrupt a coalition seeking reform abound. For example, if criminal charges are filed against Trump over the recovered documents or his actions related to them, the heat around the issue would likely grow so intense that any reform would be derailed. (Biden is unlikely to face charges regardless of what investigators find. Longstanding Justice Department legal opinions preclude criminal charges against a sitting president.)
In her remarks in Austin, Haines underscored the urgency of reform to the handling of government secrets. And she praised those pressing for sweeping changes, notwithstanding the dusty stack of government reports that have piled up over the issue for half a century, while never managing to prompt action.
“The fact that you are here is a testament to your capacity to fight cynicism on this issue,” she declared.
Jordain Carney, Olivia Beavers and Kyle Cheney contributed to this report.