Leaders in the new Republican-controlled House of Representatives have seized on reports that classified documents were found at President Joe Biden’s personal residence and at a university think tank tied to him, eager to equate the revelations with the ongoing federal investigation into highly sensitive documents that former President Donald Trump had at his Mar-a-Lago compound.
Both instances led the Justice Department to launch special counsel investigations to establish the circumstances behind the taking and the returning of the materials – but not before opponents on each side of the political spectrum sought to use the discoveries as proof of wrongdoing.
Biden supporters insist that the investigations will show that the president, unlike his predecessor, followed procedures for addressing what was an accidental – and not uncommon – mishandling of classified documents, unlike Trump and his surrogates, who have sought to frame the entire episode as evidence of a government-sponsored smear campaign.
But the more recent disc0very of such materials at the home of former Vice President Mike Pence suggests the phenomenon is more widespread than previously thought. And while little is known about the nature of the materials recovered in all of the cases, the speculation over what they might include has cast new light on what types of materials get classified, what agencies classify them, why, and for how long?
What Type of Information Is Classified?
“Classified” information refers commonly to documents but also could apply to maps, images, videos, data, microfilms, computer hard drives, CDs or any other medium that an element of the U.S. government wishes to shield from public access. Presidents are technically in charge of managing the system of classifying information, though in practice the government agency that created or received the information, such as the CIA or the Department of Energy, oversees its classification and protection.
The contents of the classified information could be raw intelligence, personnel information, an assessment from some element of American national security or correspondence among analysts, intelligence-gatherers or decision-makers. It could also include procedures, such as the process and codes for launching America’s arsenal of nuclear weapons – among the country’s most guarded secrets and generally the subject of the first questions that government investigations and public speculation seek to answer about known security breaches.
The earliest examples of classification in the U.S. government date black to sessions of the First Continental Congress, which in 1774 adopted a resolution under “obligations of honor, to keep the proceedings secret until the majority shall direct them to be made public.” George Washington himself in 1790 sent an update to Congress on negotiations with certain Indian tribes with the explicit notation that the information contained “confidential communications.”
The first peacetime procedures for classification within the civilian government were disseminated in 1869, and the system currently in place began during the lead-up to World War II.
Why Is Information Classified and How Many Different Levels of Classification Are There?
In order for anything to become classified, it must first receive an official determination from a government agency that the release of its contents would damage U.S. national security and must, therefore, become only accessible to those who have appropriate clearance. The extent to which it would harm national security relates to the level of classification it receives, with “top secret” as the highest, followed by “secret” and then “confidential,” the lowest level of classification. Each of the levels can also receive further classifications depending on the type of sensitive information the government wishes to protect, such as “sensitive compartmented information” or SCI, in which only parts of a program are accessible at once, or NOFORN, a restriction on information that only Americans, not foreigners, can see.
Though the classification system is designed to protect information that upon release is known to harm American national security, in practice that is not always the case, perhaps even rarely so, as agencies that generate classified information often have a process for deeming it as such automatically without a clear plan for eventually declassifying it.
One estimate in 2010 – at a time the Obama administration attempted to follow through on pledges of transparency – assessed that as much as 90 percent of classified information did not need to be so at that time, or ever. The proliferation of digitally produced classified information in the time since then leads experts to believe that number now could be in excess of 95 or even 99 percent.
Do Classification Rules Change Between Agencies?
Each government agency is responsible for what information it chooses to classify and how, though all of them follow common procedures. The practices include a cover sheet that fronts the classified documents and markings that appear at the top of every page to make clear the classification applied to them.
Various agencies have different ways in which employees and staff can access classified information. Junior and mid-level officials or military personnel, for example, may only be allowed to see such materials in a SCIF, or sensitive compartmented information facility, which houses the materials and usually comes with clear procedures for gaining access – such as that entrants must leave cellphones outside and also enter and leave empty-handed.
In other circumstances, such as for senior decision-makers like an agency director, Cabinet secretary or the president himself, staffers responsible for caring for the materials may bring them to and from their offices for briefings or to review.
Yet everyone who has access to these materials receives broad training on handling them and then must also be “read in” to a particular program or access, in which a specialized official dictates its own terms of security.
The cover sheets and subsequent markings for classified materials are immediately recognizable to anyone who has been granted a security clearance.
How Many Documents Are Classified Each Year?
Most practitioners and observers would say too much. Some estimates assess that as many as 50 million documents or more are classified each year.
The number appears to have grown incrementally in the last 20 years between the proliferation of technology in the Information Age that can generate classified information as well as the two-decade period in which the U.S. waged active wars in Iraq and Afghanistan while also defending against threats from nation-state actors across the globe.
Beyond the clear procedures for generating classified information, the practical realities for protecting it by presidents and down the chains of command are not always clear.
Accidental leaks, including when the staff of a retiring senior leader transports bulk documents from a secure facility into storage, happen so regularly that the National Archives has a startlingly matter-of-fact set of instructions for such instances on its public website – aligned with the actions reportedly taken by members of Biden’s staff when they believed they had made such a discovery at his archive and his private residence.
Is There a Process for Declassifying Information?
Though some classified materials become more broadly accessible after a particular amount of time under orders from a government authority – including the president – there is no clear, uniform path for a piece of secret information to become public.
Part of the problem is that there is no official within the U.S. government whose sole job is to work on safely declassifying materials. It is always an ancillary responsibility of an agency’s staff. Add to that, concerns about prematurely declassifying information are common – as demonstrated by the quip that nobody has ever been fired from the government for keeping materials secret.
Many classified items become declassified after a set period, often 25 years, as is the case for the Justice Department’s “automatic declassification” protocols. However, several exemptions to that process exist for all government agencies, such as if declassifying the information could reveal the identity of confidential human intelligence sources or their cooperation with the U.S. government or if the information could lead to the development of weapons of mass destruction or for anything that would undermine state-of-the-art U.S. weaponry.
In other cases, a government authority may set a deadline for determining whether currently classified information must remain so. President Joe Biden ordered a review of the roughly 16,000 remaining files on President John F. Kennedy’s assassination and mandated their public release “except when the strongest possible reasons counsel otherwise.”
More than 70% of the subsequent documents were cleared for declassification, and the National Archives released thousands of them in mid-December.
According to the National Archives, since World War II only three subjects remain immune from consideration for declassification: National Security Agency signals intelligence from before 1942, how the Secret Service guards the president and how much gold is at the federal bullion depository at Fort Knox.
The need for classifying information can also change over time. The process for launching nuclear weapons, for example, will likely always remain secret.
On the other end of the spectrum, those who have worked with highly classified information lament how quickly the need to guard it can diminish. Consider the difference between protecting a plan for a U.S. infantry company to patrol through a particular village in a valley in Afghanistan the following day compared to the need to restrict that same information a year or even a month later.
Yet information about routine operations can quickly change with regard to the need to keep it classified. It took an act of Congress, for example, to cajole the Pentagon and intelligence communities to work toward declassifying what had originated as mundane footage – chiefly from military pilots – that was later revealed to show apparent UFOs, which the government calls Unidentified Aerial Phenomena in an apparent attempt to avoid otherworldly associations.
In these particular instances, the government was concerned that declassifying the footage prematurely could reveal “sources and methods” – bureaucratic jargon to describe the secret ways it gathers information, either electronically or through human sources. They were also concerned that the footage may have shown previously undisclosed experimental technology from another government, such as China or Russia, and the U.S. – as is often the case with intelligence – did not want its adversaries to know what it knew.
More than a year after Congress ordered the military and intelligence community to begin practicing transparency what it knows, they have yet to reveal any definitive conclusions about their analysis, with many experts questioning whether they ever will.
What Role Does the President Play in the Classification Process?
Since the beginning of World War II, the president of the United States has officially overseen the system for classifying information through a series of executive orders. The most recent is former President Barack Obama’s 2009 order that, among other reforms, created the National Declassification Center inside the National Archives in an attempt to coordinate the process across the government.
Presidents have the authority to issue classification and to designate other officials who can do so. They also have authority to declassify much information – but not all. They cannot, for example, declassify information regarding the U.S. nuclear arsenal.
Legal scholars disagree on the extent to which a president may declassify information without following the strict rules governing that process. And in light of the politicization the discussion has recently taken due to the incidents involving Trump and Biden, the answer about adherence to those procedures will likely become a matter of much consideration – and perhaps even litigation – in the near future.