Consider This from NPR - How The Government Tracks Classified Documents—And Why It's An Imperfect System

Episode Date: January 19, 2023

The Justice Department is investigating the mishandling of classified documents linked to President Biden and to his predecessor, former President Trump. Both cases raise questions about how classified information should be handled.NPR's Greg Myre explains how classified material is handled at the White House, and how that compares to other government agencies. And we speak to Yale law professor and former special counsel at the Pentagon Oona Hathaway, about the issue of "overclassification" of documents.In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from Indiana University. Indiana University is committed to moving the world forward, working to tackle some of society's biggest challenges. Nine campuses, one purpose. Creating tomorrow, today. More at iu.edu. President Biden's getting some unwelcome attention from lawmakers, the media, and even his own Justice Department. I'm here today to announce the appointment of Robert Herr as a special counsel pursuant to Department of Justice regulations governing such matters. That was Attorney General Merrick Garland speaking last week about the discovery of classified documents at President Biden's Delaware home and at a Washington office

Biden formerly used. The Justice Department is, of course, also investigating Biden's predecessor. Garland appointed a different special counsel, Jack Smith, to look into former President Trump's handling of classified documents at Mar-a-Lago. Republicans in the House majority argue that the dual investigations reflect a double standard. What's real concerning to me is how justice is applied and is it applied equally? In light of what had already happened with the raid on former President Trump's home, why in the world was it so critical to keep it covered up until now? And we just have a lot of questions with respect to how Biden's been treated versus how Donald Trump was treated.

GOP representatives Kevin McCarthy, Daryl Issa, and James Comer speaking there. There are some key differences between the Biden and Trump cases. For example, Biden says his lawyers acted quickly to alert the National Archives that classified papers had been found, while Trump's lawyers clashed with the government in court over access to the documents at Mar-a-Lago. Still, the optics here are challenging for the Biden White House. Here's Democratic political strategist Karen Finney. What's unfortunate for the Biden administration is that this is happening after Mar-a-Lago, and Republicans are trying to create a parallel between these two situations that doesn't exist.

Finney worked on Hillary Clinton's 2016 campaign when Clinton faced questions about how she handled classified documents as Secretary of State. So Finney knows how politically sensitive this topic can be. about classified information, it does lend itself to highly charged headlines that, you know, sound like it is straight out of Jason Bourne or, you know, a spy thriller. Consider this. Despite the differences, the Trump and Biden cases both involve mishandled documents. So how should classified material be managed, and how can the government keep track of it? From NPR, I'm Ari Shapiro. It's Thursday, January 19th. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the Wise app today or visit wise.com.

T's and C's apply. It's Consider This from NPR. Here's one thing that the Trump and Biden cases have in common. It looks like in both instances, the transition between administrations was a key moment when people mishandled classified documents. That transition is a process unique to the presidency. NPR national security correspondent Greg Myrie told me keeping track of classified documents is more challenging in the White House than at other agencies. When presidents leave office, they're required to return all these records over to the National Archive. But this isn't the case with other government agencies, the CIA, the Pentagon, the State Department. They keep these same classified records at their offices so they

can continue to refer to them. And this helps explain why White House records can be vulnerable to mishandling. Every administration has to clean house, creating a possibility that some material doesn't go where it's supposed to. Okay, so other government agencies don't have to do this house cleaning, but they still create millions of classified records. So how do they keep track of it all? So I spoke with people who've worked at the CIA and the NSA and other national security outfits, and they said there is no master list. I asked if these agencies could, for example, just do a computer search for all the classified documents that they'd created yesterday or last week or last year, and I was told the answer is no. Now, when national security agencies create classified documents, they often

share them with other agencies, and a small portion of them, the ones that are most important and sensitive, will make their way to the White House. And these agencies keep their own classified documents in-house, but they don't have a list of every document they create. And they don't know what happens when a document goes to another agency or even the White House. And I imagine it becomes even more complicated if that classified document is on paper, less searchable than an electronic file on a computer.

Would it be easier to track everything if it was all electronic? Yeah, Ari, that is true. And now most classified material, but not all of it, is electronic. And you partly run into some generational issues here. Younger officials are more comfortable with electronic records. Some older officials may request physical documents. For example, President Obama read his daily security brief on his iPad. Trump and George W. Bush like to be briefed verbally. Now, he spoke about this with retired intelligence officer Larry Pfeiffer. At the CIA, he was chief

of staff. He also served at the White House where he ran the situation room when Barack Obama was president and Joe Biden was vice president. There are some things that just are not delivered electronically. Some of the most sensitive sourced material that comes out of CIA is often only produced on paper. And that's to prevent some internal threat hacking in and putting stuff on a storage device or something and walking out the door with it. You say he worked at the CIA and the White House. Did he see a difference in the CIA where people are career intelligence officers and the White House where there's kind of a rotating cast of characters? Yeah, to some degree, the answer is yes. At the CIA, you protecting classified material is just drilled into you from day one. And at the White House, you're dealing with people who have a politics background. They do get training and reminders on dealing with classified documents, but it's not something they're doing every day for years. And even that

said, mishandling material can happen to anyone. Again, here's Larry Pfeiffer. I don't want to say routine because I don't want some people to think this is something that happens five times a day. But I mean, it's a situation that happens enough. I mean, we actually have a term. We refer to it as a spillage. You know, when classified material is discovered somewhere it is not supposed to be, we call it a spill. It's a term of art that is developed because it happens enough. So is there classified material out there that like nobody knows about, maybe not even the person who has it? That's almost certainly the case, Ari. I spoke with Glinger Stell, the former general counsel

at the National Security Agency, and he noted this particular irony. If you're a junior staffer, the likelihood of mishandling classified material is actually quite low. You'll be in a secure room at your agency. You walk in empty-handed. You get briefed, read some classified documents. Then you walk out empty-handed. So there's no real way to accidentally walk off with documents. But if you're the president or secretary of state or CIA director, you're getting a stream of documents at your desk all day, both classified and unclassified. And this creates the possibility you could mix them together in a folder and inadvertently walk out with them. NPR National Security Correspondent Greg Myrie.

One big challenge for anyone trying to keep classified documents from going astray is the sheer volume of them. So does all that classified stuff really need to be kept secret? My colleague Elsa Chang spoke about this with Ona Hathaway. She's a professor at Yale Law School and a former special counsel at the Pentagon. So you've noted that a lot of government officials whose job it is to keep government secrets secret have admitted to you that the current system leads to mass over-classification. Can you just start by explaining why so many documents, and we're talking about tens of millions of documents per year, why so many end up getting classified? That's exactly right. So 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. So we don't have excellent data. But the last time the government tried to count, it counted about 50 million classified documents. And the reason for all of these documents is that there's just really no incentive. If you're a person sitting at a desk and you're making a decision about whether

to classify something or not, if you classify it, 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. And that's part of the reason we end up where we are. In what ways might over-classification of government documents be a problem? Like, why should we as citizens care about too many documents getting the classification designation? 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.

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 to that information, it potentially makes them vulnerable to prosecution for violation of the Espionage Act. So it creates a lot of problems for democracy and for transparency of our government. So to reiterate, the Biden and Trump cases around classified documents are different in scope and in circumstances. But again, both of those cases have raised this new scrutiny about this whole classification system. Is the criticism about over-classification a fair criticism when it comes to either Trump's case or Biden's case? Well, it's hard to know exactly what's happening with the Biden administration because we haven't seen those documents. The fact that they're mixed in with a lot of documents that were not classified is suggestive that they were sort of part of a

set of files where classified information kind of got snuck in. 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 President Trump when he left. We have a 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. And 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.

So I understand that the current rule is that all classified records can be declassified after 25 years, but I know that you think that time frame should be 10 years, with very few exceptions. What else could be done to reform this classification process? We really need to think about how to create incentives for people who are making a decision about whether to classify a document to think, maybe I should think twice before ramping this up to the highest level of classification that I can. We have technology now that can help with these decisions, 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.

Yale Law Professor and former Pentagon Special Counsel, Ona Hathaway. It's Consider This from NPR. I'm Ari Shapiro. This message comes from NPR. I'm Ari Shapiro.