The Curse of Classified Documents

 

By David K. Shipler 

                Many years ago, the Communications Officer on the US Navy destroyer where I was stationed went into a panic. He had misplaced a booklet, marked “SECRET” containing encryption keys. He scoured the radio shack where the document was usually kept, went through the officers’ wardroom where we ate, and ravaged his desk in the stateroom we shared. Nothing.

                He was a young ensign and was sure he was going to prison. I helped him look. We both had Top Secret clearances, so there was no risk of my seeing something I shouldn’t. We overturned our mattresses. We emptied drawers and lockers. Finally, on a whim, I fished around in the narrow slot between a desk and a bunk and—voila! There it was. My roommate was saved.

                Would that all officials were as terrified of classified documents going astray. But no, as Donald Trump and Joe Biden have demonstrated, and as countless lower functionaries have surely done out of sight, carelessness seems as ubiquitous as classification itself.

There are two main reasons for this. One is overclassification of material that needn’t be kept secret, or whose need for secrecy has expired. The other is a decentralization of authority over the reams of classified documents that flow across some government desks. Those in certain positions are so used to shuffling papers with one of the three basic classification levels—Confidential, Secret, or Top Secret—that they evidently get too casual.

“Misplacing classified documents is very common—happens all the time,” the BBC was told by Tom Blanton, head of the National Security Archive at George Washington University. He added that certain information, such as a president’s travel schedule, is classified beforehand but need not remain secret afterwards. Yet those documents are often never put through the declassification process.

In addition, virtually every communication sent by an embassy to the State Department in Washington is classified, at least at the low Confidential level, even including reports of news stories that everybody can read in the local media. It’s too bad that Ben Franklin didn’t come up with some proverb for this like, “Absurdity numbs the conscience.”

Nevertheless, mishandling classified information either intentionally or in a grossly negligent way can be charged as a felony. And knowingly removing classified information from appropriate systems or storage facilities is a misdemeanor.

When Hillary Clinton was discovered as having used several private, personal email servers when she was Secretary of State, the FBI sifted through digital files and, according to FBI Director James Comey, found fifty-two email chains containing classified information: eight Top Secret, thirty-six Secret, and eight Confidential. Upon review by various government agencies, he said, some 2,000 additional emails, not classified when they were sent, were later “upclassified” to Confidential.

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information,” Comey concluded, “there is evidence that they were extremely careless in their handling of very sensitive highly classified information.” Seven email chains were classified “Top Secret-Special Access Program,” so sensitive that only minimal distribution is permitted on a need-to-know basis. “An unclassified system was no place for that conversation,” Comey declared.

Whether any of these emails were intercepted the FBI couldn’t determine. There was no such evidence—it would be hard to find—but Comey raised that possibility, because the FBI discovered that Clinton had used her personal email for work-related matters when she was outside the US “in the territories of sophisticated adversaries.”

Nevertheless, she was not charged. The facts failed to rise to the level required for a prosecution, Comey said. And there was a broader problem, he claimed: “The security culture of the State Department . . . was generally lacking in the kind of care for classified information that’s found elsewhere in the US government.”

Comey was roundly criticized for making this statement, and for his subsequent disclosure, shortly before the 2016 presidential election, that Clinton emails had been found on the computer of a disgraced former congressman, whose ex-wife had worked on the Clinton campaign. Only later did the FBI announce that those emails contained no classified material, but the political damage was done. The revelation probably contributed to her loss.

 Secrets have wandered into other strange places. In 1977, the last US ambassador to South Vietnam, Graham Martin, stashed Top Secret intelligence-related documents in the trunk of his car. The car was stolen, and when it was recovered, the documents were missing—a fact he failed to report. In 1979, the Justice Department cited “serious questions of criminal liability” but decided not to prosecute Martin, then 67, because of his poor health. He lived another eleven years.

Having watched him in Saigon, I have no doubt that if the tables had been turned, he would have campaigned for the imprisonment of any other US diplomat so careless with classified material. His hawkish, dogmatic fantasies led him to crush accurate military assessments and fiercely deny that the North Vietnamese were on the cusp of victory in 1975. He obstinately rejected orderly evacuation plans for Vietnamese who had worked with Americans, forcing other officials to evade him surreptitiously in getting people out to safety.

But he was given a free pass for letting Top Secret information be stolen by—who knows? So it typically goes for high officials. A series of slaps on the wrist were administered to retired General David Petraeus, who as CIA director gave eight binders of classified material to his mistress and biographer. He had to resign from the CIA in 2012, serve only two years’ probation, and pay a $100,000 fine.

Given that context, what are the chances that a president or former president will sit behind bars for this? Since nefarious intent and gross negligence must be proved to get convictions, it seems a foregone conclusion that the special counsel just appointed will not see a case against President Biden   for the documents found in his private office, private house, and home garage. Biden said he was surprised and didn’t know what was in the material, whose discovery was reported immediately to the National Archives.

But not reported to the public before last November’s elections, which makes the matter more political than criminal. And politically, given the incapability of this country’s public discourse to be factual and discerning, the Biden mishandling appears to neutralize the Trump mishandling. That, despite the hundreds of documents that Trump kept as he stonewalled and lied about them to the National Archives and the Justice Department. Trump defied a subpoena, provoking the FBI to obtain a warrant and conduct a search of his Florida residence, Mar-a-Lago.

Whether Trump will be indicted for having the material or for obstruction of justice is an open question as of this writing. It seems possible but unlikely.

Most officials who suffer punishment are lower-level whistleblowers who disclose classified misdeeds to the American public through the press. The wrongs they expose have included illegal surveillance of Americans and the murder of civilians and prisoners by US troops. When it comes to embarrassing information, security classifications take on the stature of holy writ.

The Obama administration prosecuted more such leakers than any other administration in US history—or threatened prosecution in ways that ruined the careers and livelihoods of those who saw their patriotism in the broadest sense, as a call to protect their country from its own malfeasance.

The lesson may be that the system of classification is no “system” at all, but a helter-skelter, inconsistently managed, often chaotic tangle of legitimate secrets mixed with speculation by intelligence agencies, outdated information, and self-serving censorship of inconvenient truths. It needs extensive reform, which probably won’t come unless it truly endangers those at the heights of government.