Analysis: The lesson from Pence’s (and Biden’s) closets: The government classifies way too many things

The discovery of classified documents at the homes of President Biden and former Vice President Mike Pence can offer an important lesson for the country.

Unfortunately, it’s not the lesson Washington combatants have initially focused on.

“[It] just shows carelessness, negligence,” Republican Rep. Don Bacon of Nebraska declared in an interview with NBC’s “Meet the Press” daily program after the Pence documents were discovered. Bacon called for the appointment of yet another special counsel, this one to investigate the former vice president. “I think Americans should be mad,” he said.

Yes, we should be. But the anger probably should not be aimed at Pence or Biden or the dozens of anonymous aides who packed boxes as they moved out of government offices at the close of their tenures.

Instead, this latest outbreak of classification fever — capped Thursday by the National Archives’ request that presidents and vice presidents from the last six administrations scour their files — illustrates a different problem: Vast over-classification by the U.S. national security system needlessly interferes with the public’s right to know what its government is doing, often impedes that government’s ability to get its work done and, as we’ve seen repeatedly over the last decade, periodically entangles senior officials in pseudo-scandals.

Too much secrecy breeds mistakes

“Unless secrecy is reduced, it cannot be protected.”

That was the verdict almost 30 years ago when then-Sen. Daniel Patrick Moynihan (D-N.Y.) delivered the report of his Commission on Government Secrecy.

The government classified too much, Moynihan wrote, and inevitably that meant officials could not focus on protecting the limited number of secrets that truly need care.

Since then, the problem has only grown vaster.

How big? Well, in 2017, officials made 49 million classification decisions, either on paper or, increasingly, by electronic means, according to the government’s Information Security Oversight Office, which was created 45 years ago by President Carter to set policy for management of the classification system.

That was the last annual estimate: The number has grown so big, officials have given up trying to count.

“We can no longer keep our heads above the tsunami of digitally created classified records,” Mark Bradley, the director of the office, wrote in his annual report last year.

How much of that really requires secrecy?

One estimate came from former New Jersey Gov. Thomas Kean after he chaired the commission that investigated the Sept. 11, 2001, terror attacks.

“Three-quarters of what I read that was classified shouldn’t have been,” Kean said.

Other former senior officials have put the share of unnecessary classification even higher, noting that a lot of what appears in classified documents involves information routinely published by news organizations like this one.

In 2016, during the notorious controversy over Hillary Clinton‘s emails, FBI agents found that 110 emails in 52 email chains that the former secretary of State had sent contained information that was classified. In several cases, the classified information appears to have been previously published in the news media or involved facts that were officially secret, but nonetheless widely known.

Yes, there are some secrets that need to be kept under wraps, and maybe the papers stashed away in Pence’s house or Biden’s office or Mar-a-Lago’s closets will turn out to fall into that category. For now, it’s important to keep in mind that we really don’t know what those documents involve and how much, if at all, the mishandling of them may have endangered national security.

The suggestion that something genuinely risky may have taken place is strongest in the case of former President Trump, given the volume of documents found in his possession, some of which were prominently stamped as Top Secret. The Justice Department has not said what the classification level was of the documents found in Biden or Pence’s files.

Completely separate from that, obstructing a government investigation by defying a grand jury subpoena, as Trump may have done, constitutes a crime whether the documents involved are classified or not.

But before institutional Washington works itself into a frenzy over what intelligence officials refer to as “spillage” of classified material, it would be a good idea to ask some basic questions:

“What are we actually trying to accomplish?” and “Is the system well suited to the problem it’s designed to solve?” would be two good places to start, said Yale Law School Prof. Oona Hathaway, a former special counsel to the Defense Department.

The existing classification system involves “tens of millions of documents and millions of people who have to have access to them in order to do their work,” Hathaway said.

“It does inevitably create problems,” she said. “They’re almost impossible to avoid.”

Beyond the embarrassment suffered by senior officials found to have classified material in their closets, the system imposes more tangible burdens.

In 2017, the information security office estimated that security classification cost taxpayers $18.4 billion that year. Private companies spent an added $1.5 billion to work with federal agencies under the National Industrial Security Program.

Complying with classification requirements puts hurdles in the way of government officials sharing information among agencies, or sometimes even between different offices in the same agency, let alone consulting nongovernmental experts.

The resulting siloing of information “breeds a kind of narrowness of thinking on some of our most important national security issues,” Hathaway said.

And as many national security experts say, the system contains huge incentives for over-classification and essentially none for openness.

“There’s not much punishment for over-classification,” said Scott Amey, general counsel to the Washington-based Project on Government Oversight. “There’s is a lot for inadvertent release.”

An official who improperly releases a sensitive document could be fined, fired or prosecuted. One who needlessly blocks public access faces no real penalty.

Moreover, while most documents are supposed to become unclassified after 25 years, in practice, agencies routinely get extensions. The system for declassifying documents over time is hamstrung by under-staffing and has never become a serious priority.

Hathaway has proposed flipping the system to automatically declassify documents after 10 years, with a few narrowly specified exceptions to protect intelligence sources and methods. If an agency wanted to keep something under wraps longer, it would have to prove the need for secrecy, rather than have the burden of proof fall on advocates of open government.

Another potential reform would be to hold officials accountable for the amount they classify.

Proposals for fundamental reforms like that have gone nowhere in the past. Just as national security officials have huge incentives to over-classify, elected officials have incentives to avoid challenging them.

Few politicians want to run the risk of appearing complacent about security. Only rare ones like the late Sen. Moynihan or current Sen. Ron Wyden (D-Ore.) have wanted to take on the issue. Both parties have enjoyed wielding the word “classified” as a weapon against the other side, although how effective that is remains to be seen — so far, the issue does not appear to have had an impact on Biden’s standing with the public.

Now, however, both sides have hostages, and it’s just possible that may change the dynamics.

“Sometimes, crises can lead to solutions for problems of long standing,” said Hathaway. “My hope is that this can be an opportunity to rethink the system.”

Another Republican leadership fight

Just as the dust has settled from the intramural GOP battle over who should become speaker of the House, members of the Republican National Committee, meeting in Dana Point, are diving into a fracas over who should chair the party. Seema Mehta took a close look at the contest, which features current RNC chair Ronna McDaniel and San Francisco attorney Harmeet Dhillon. It’s an increasingly nasty fight that has included insinuations about Dhillon’s Sikh faith.

The latest from the campaign trail

— Trump will be allowed back on Facebook and Instagram after a two-year ban for inciting violence during the Jan. 6 attack on the Capitol, Jaimie Ding reported. “The suspension was an extraordinary decision taken in extraordinary circumstances,” Nick Clegg, president of global affairs for Meta, Facebook’s parent company, said in a blog post. “The normal state of affairs is that the public should be able to hear from a former president of the United States, and a declared candidate for that office again, on our platforms.”

— Once a comforting presence at story circle and book fairs, librarians have been condemned, bullied and drawn into battles over censorship as school and library boards face intensifying pressure from conservatives seeking to ban books exploring racial and LGBTQ themes, Jeff Fleishman reports. Concentrated pressure by politically connected parental groups, said Peter Bromberg, a board member at EveryLibrary, a nonprofit library advisory group, “has librarians facing a great deal of stress. There are signs on people’s lawns calling librarians pedophiles.” They face pressure from principals and administrators over book displays, and “neighbors talk about them being an arm of Satan.”

The latest from Washington

— In November, Ticketmaster bungled the sale of tickets for Taylor Swift’s upcoming stadium tour, prompting outcry from demoralized fans. This week, as August Brown reported, Congress responded with a hearing, led by Sens. Amy Klobuchar (D-Minn.) and Mike Lee (R-Utah), which showed bipartisan skepticism toward the Live Nation/Ticketmaster conglomerate, which dominates the live music market.

— Assistant Atty. Gen. Carlos Uriarte has spent months preparing to face off against House Republicans as they unleash a gantlet of congressional investigations into the Justice Department, Sarah Wire reported. As the head of the Office of Legislative Affairs — the Justice Department’s liaison to Capitol Hill — Bay Area native Uriarte will be thrust into a high-stakes but largely behind-the-scenes role in coming months as House Judiciary Committee Chairman Jim Jordan (R-Ohio) leads a sweeping examination of the Justice Department and FBI.

The latest from California

— Rep. Adam B. Schiff, a decades-long fixture in San Fernando Valley politics who rose to national prominence as a top Democratic foe to Trump, is joining a contest for U.S. Senate that is quickly shaping up to be highly competitive, he announced Thursday. As Melanie Mason reported, Schiff, a former prosecutor, built a profile as a moderate Democrat focused on foreign policy and national security. The Trump era, however, thrust him into the spotlight, as he led the first impeachment of the then-president and served on the congressional panel investigating the Jan. 6 Capitol attack that culminated in referring Trump to the Justice Department for criminal investigation. “The Senate is where many of these fights over the future of our democracy take place,” Schiff said in an interview prior to his campaign launch. “Some of Donald Trump’s biggest enablers are in the Senate. And I think that is where I can most effectively champion our democratic institutions.”

Schiff was in the headlines again this week when House Speaker Kevin McCarthy (R-Bakersfield) kicked him and Rep. Eric Swalwell (D-Dublin) off the House Intelligence Committee, Nolan McCaskill reported.

— A coalition of disability and civil rights advocates have filed a lawsuit asking the California Supreme Court to block CARE Court, Gov. Gavin Newsom’s far-reaching new plan to address severe mental illness by compelling treatment for thousands of people, Hannah Wiley reported. The three organizations — Disability Rights California, Western Center on Law and Poverty and the Public Interest Law Project — asked the state’s high court to strike down as unconstitutional CARE Court (for Community Assistance, Recovery and Empowerment). The groups argue that the sweeping new court system will violate due process and equal protection rights under the state constitution, while “needlessly burdening fundamental rights to privacy, autonomy and liberty.”

— Weeks after warring factions of Democrats reached an agreement on a timeline to replace California Assembly Speaker Anthony Rendon of Lakewood with Assemblyman Robert Rivas of Hollister, a new candidate for speaker has emerged and launched another round of infighting that threatens to consume California lawmakers for the second year in a row, Taryn Luna reported. “I’ve been approached about the speakership and I am considering it and I look forward to more discussions,” said Assemblyman Joaquin Arambula (D-Fresno), a Rendon ally. “I believe we need to find a consensus candidate who can unify our caucus.”

— After a deadly wave of mass shootings in the United States last year — including one in Buffalo, N.Y., and another at a school in Uvalde, Texas — that collectively killed 31, California’s Democratic-controlled Legislature responded by quickly passing more than a dozen laws meant to prevent gun violence in the Golden State. Now, with California reeling from one mass shooting after another that claimed at least 24 lives in Monterey Park, Half Moon Bay and a Central Valley farming town, lawmakers are asking themselves once again what more they can do to stem the violence, Wiley reported.

— A California law seeking to increase wages and improve working conditions for fast-food workers has been set aside for now, after state officials said major restaurant and business trade groups had succeeded in their effort to put a repeal measure on next year’s ballot, Suhauna Hussain reported. The announcement means the law, also known as the Fast Recovery Act, approved last year by the Legislature, is suspended until California voters decide on the November 2024 ballot whether to repeal the law.

— A California judge on Wednesday ordered the release of pivotal evidence related to the October attack on former U.S. House Speaker Nancy Pelosi’s husband, including a recording of his 911 call and police body-camera footage. As Wiley reported, a coalition of at least a dozen news organizations, including The Times, asked the court to order the San Francisco district attorney’s office to release copies of the records already submitted into evidence, arguing that the news media and public had a right to review them.

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