Too Many Secrets

It’s not just the Nunes memo. Most documents that get classified are mundane and harmless. That can lead to dire consequences.

Classified memo
Photo illustration by Slate. Images by U.S. Secretary of Defense.

Last week’s decision by House Intelligence Committee Republicans and the White House to declassify a misleading, politically charged memo about evidence in the Russia investigation is yet another example of our toxic political environment. But it also points to another problem—one that existed long before President Trump—about how the U.S. government inconsistently and ineptly treats classified information and Americans’ poor understanding of that process.

Executive Order 13526, issued by President Obama in 2009, governs the process by which certain officials in the U.S. government can classify information—that is, make the decision to protect certain classes of information related to our national security for an established period of time. The process, typologies, and review mechanisms appear straightforward on paper. The ways officials apply them are anything but.

Classification means different things to different people, and this fact has implications for our politics as well as our security. To a bureaucrat, a classified memo is probably a normal document derived from a dozen piecemeal sources someone else has decided need to be kept confidential. At one agency, staffers will protect it to the point of absurdity; at another, they’ll massage it into public talking points. To a citizen, it’s a sexy and important document, and the classified nature implies a finished, reliable product. To a journalist or policy expert following the issue closely, it’s not entirely clear why it needed to be protected.

Classifying and declassifying information creates a patina of seriousness that gives a document greater credibility in the public debate. Anticipation for the Nunes memo had the press and the public salivating prerelease. Post-release, you’d be excused for wondering what the big deal was. If the memo had not been deemed classified in the first place, it would have been regarded as the partisan hack job that it was. But its classification level created an aura of mystery and controversy that was unwarranted.

It’s reasonable to ask whether classification was abused in this case to mislead the public about the relevance of the Nunes memo. Rather than a comprehensive smoking gun or exculpatory data dump, the memo was not much better than a news story reliant on a couple of uninformed sources. Releasing some facts while omitting others because of supposed classification painted only a partial picture. To fill in the gaps, Democrats on the House Intelligence Committee have successfully advocated to declassify their own memo on the topic, dramatically forwarding the decision for release to President Trump. Whether he chooses to keep the document secret on the grounds it endangers national security, the fact of the alternate text and tit-for-tat classified memos already puts Congress in dangerous and unprecedented territory.

This affair is only the latest in a long tradition of partially releasing classified information to build a political case. President Bush, in his 2003 State of the Union address, described Iraqi attempts to purchase aluminum tubes and yellowcake uranium as evidence that Saddam Hussein was pursuing nuclear weapons. The sources of the information behind the yellowcake claim were dubious, and there was intense disagreement among analysts and scientists within the U.S. government about the purpose of the aluminum tubes. Yet, this information never saw the light of day until after the fateful decision to go to war.

The Nunes memo fiasco points to a broader challenge with keeping too much secret and the risks of politicization. It is legitimate to argue that the memo was misleading and should not have been released until its factual inaccuracies were addressed. But arguing that it would endanger national security, as many did, was a stretch and creates a slippery slope to unnecessarily suppressing information from the public on the grounds of “national security.”

Americans understandably do not comprehend why certain facts are classified and others are not. Some items genuinely need to be protected, such as sensitive military planning or intelligence that if released would put the lives of agents at risk; these seem obvious categories to stamp with top secret. But often, U.S. officials’ habitual risk aversion results in a default posture of protecting rather than sharing. There are not many incentives to do otherwise.

As two former employees with a combined 15 years’ service in the executive branch during the Bush and Obama administrations, we have seen this practice play out again and again. In much of the federal government, there is a professional cost to inadvertently not classifying something that should be classified and that results in a security incident or spill. And so employees—especially lower ranking officials—default to classifying everything in order to protect themselves. Newspaper articles covering sensitive activities are emailed with secret classification; press conferences deny activity caught on video; jokes made on the Daily Show about a drone program can’t be repeated in public. In such an environment, motives derive less from concern about national security than fear of being fired or jailed.

Conflating classification with sexiness creates problems inside government too. Busy bureaucrats sometimes inappropriately dismiss information that is deemed merely secret, judging it less interesting. Unsurprisingly, officials compensate by choosing to classify all their memos as top secret simply to draw their colleagues’ attention. There’s enough flexibility in the classification guidelines—and enough absence of oversight—for this practice to get out of control.

By contrast, in the age of the 24-hour news cycle and social media, information that the United States deems classified is constantly ending up in the public domain. It’s hard to keep secret the arming of Syrian opposition groups or drone strikes in Pakistan, when any witness on the ground with a smartphone can record evidence of these activities and post it on the internet.

Yet, much of the U.S. government has an aversion to declassifying such information, defying all practical sense. This only serves to imply the government’s own untrustworthiness when it denies things that are patently obvious to anyone paying attention to the news. The American public is generally comfortable with investing significant national security powers in the hands of the government. But it is much less comfortable with the government choosing to lie and deny these facts.

This dynamic grows increasingly frustrating at a time when every agency has its own approach to classifying information, creating bureaucratic clashes that play out in public. The intelligence community is internally oriented and focused foremost on protecting its sources and methods. It works on computers that can store highly classified information and defaults to classifying all of the information it collects at high levels. The State Department needs to be able to share information during its constant engagements with foreign diplomats and the information it collects through these engagements. It works on computers with lower levels of classification and has a culture that leans toward sharing. The end result is that these two agencies often learn the same information through different sources and classify it differently, creating conflict and confusion.

This was apparent when both the intelligence community and State Department reviewed the emails on Hillary Clinton’s private server for release and sometimes came to very different conclusions.

In another example, Robin Raphel—a former U.S. ambassador to Pakistan—had her career destroyed because the FBI suspected she was spilling secrets to the Pakistanis. One of the claims made against her was that she was speaking with Pakistani officials about speculation that there may be a coup, information that the intelligence community deemed classified. But speculation of a coup was prevalent in the Pakistani media and within cross-government channels; all Raphel was doing was discussing the issues of the day with her foreign counterparts.

Classification can also be abused to avoid oversight and wield power over Congress. If you are a senator, unless you work on the Intelligence Committee, are part of the leadership, or are the chair or ranking member of the Foreign Relations or Armed Services committees, your staff does not have the highest level of clearance. Many executive branch briefings to members of Congress are at this highest classification level, partially to protect information but also to keep staff out. So, even if a member gains access to key information that should be further investigated, she cannot share it with anyone who works for her, making it nearly impossible to follow up and exercise proper oversight.

This paucity of clearances stands in sharp contrast to the executive branch, where thousands of people hold the highest level of clearance and have easy access to facilities and computers that enable their review of classified materials, and where millions of dollars are invested annually in protecting and expanding these resources. On Capitol Hill, there are few such facilities where classified information can be discussed or worked on.

And yet, for all these security measures, major breaches via Edward Snowden, Russian spying, or a Chinese heist of thousands of personnel records continue.

The way the U.S. government protects its secrets is broken and requires fundamental reform. Our government must accept the reality that it lives in a world where most of the things it deems secret are likely to get out—and may not be that harmful anyway. Officials should ask themselves what secrets really are critical to protect and focus much more on keeping those away from the public. Such an approach would lead to better governance, transparency, and a system that is harder to penetrate.