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What Biden’s Documents Reveal About the Confusing Classification System

6 minute read
Abel is an associate professor of law at UC Law, San Francisco. His academic research focuses on informational asymmetries in the criminal justice system and the structural injustices these asymmetries produce

How can a classified document go missing? How can it wind up in the garage or private office of President Joe Biden or the private country club of former-President Donald Trump? The short answer is that we don’t yet know what happened—or what roles the two men, if any, actually had in the mishandling of documents.

One possibility, much discussed, is that the clunkiness of the classification system itself contributed to the records’ mishandling. Clunky is perhaps an understatement: The system the federal government uses for protecting its most sensitive records—“confidential” “secret,” and “top secret” material—can be as mysterious and ethereal as the secrets themselves.

Read More: Biden’s Classified Documents: A Timeline of What We Know So Far

Did you know that the government has the power to retroactively classify a document? It can release a document to the public today only to turn around in a month and classify it. Or, to take another example, the same document can be classified in one agency’s repository of records and declassified in another’s. This internal inconsistency can be a simple function of different officials’ coming to different conclusion about the same information—and no centralized system for reconciling discrepancies. When you consider expert estimates that there are between 4 billion and 1 trillion classified documents in existence, it doesn’t take too high a rate of disagreement to create a lot of internal contradictions in the classification system.

The enormous amount of classified material also may help to explain why keeping track of government records is so complicated. Throughout the federal government, new information is constantly being produced, and a large cadre of officials are given the responsibility of classifying (and declassifying) records according to the sensitivity of the secret information. This is a daunting task even if one takes a conservative approach to defining what records are classified. But academics and government officials have long worried about the over-classification of government information. When in doubt, officials will classify information because they believe it safer to err on the side of secrecy. Over-classification, however, makes the task of tracking records that much harder and, simultaneously, it makes each secret seem less and less truly important. Think of it as a sort of classification inflation.

This story of bureaucratic bloat sets the background for how classified documents can go missing without any wrongdoing on the part of the person who possesses them. But the bureaucratic bloat narrative also raises its own set of questions: As one letter writer put it recently, why does the local library seems better at tracking its books than the federal government is at tracking its secrets?

It’s a fair question. And it certainly seems like dysfunction for the federal government to label some information as a secret, only to lose track of it for years. But criticism of the classification system’s dysfunction often fails to appreciate the true dilemma that the government faces with regards to its secrets. The goal of classifying information and protecting classified information is not simply to lock it away from adversaries. The classification system must also be nimble enough to permit government decision-makers to share information in real-time, in such a way that it can inform their policy decisions. The operation of the federal government is not as simple as a lending library. Lock-it-all-down solutions won’t work. A system that is too rigid in locking down and tracking every last classified document might render the classified information useless to the critical operations of our own government.

Nor is it clear that bureaucratic clunkiness is the reason classified documents go missing. There are other plausible narratives, too.

In the public debate about Trump’s classified records at Mar-a-Lago, there are two other prominent narratives of how the documents went missing. One is a political and personal story. It holds that officials at the very top of government see themselves as beyond the law. They may even see national secrets as their own secrets. As Louis XIV supposedly once said, “L’etat c’est moi”—I am the state. Any classification system, sloppy or sophisticated, would be liable to lose records to that type of threat. The other comes from the opposite direction. It sees the classification system in sinister terms. According to this thinking, classified information is the grist of the “deep state.” Elected officials are inundated by documents and information that they never wanted or requested, and the classification rules are used by the deep state to limit what the elected officials can say. The discovery of classified records in a former official’s possession is just another pretext for the deep state to take its revenge, or so the story goes. The problem isn’t so much the classification system’s creakiness as its strength.

Both of these competing narratives—the self-aggrandizement and the deep state stories—have been bolstered by Trump’s alleged resistance to give back the classified documents, even after the National Archives requested their return. By contrast, Biden appears to have willingly returned the documents upon discovering them, thus making the bureaucratic clunkiness story a more plausible fit. But what unites all of these stories—what truly is the common theme across the Biden and Trump records investigations—is how little we know about the details of the actual documents, and how little we know about what role Biden and Trump had in the handling of the records themselves.

Another unifying theme in all the consternation about classified records is the failure to see how this story goes far beyond the federal government. All levels of government—federal, state, and local—are in possession of enormous amounts of sensitive information. And officials of all ranks and partisan affiliations misplace, misuse, and misappropriate such information. This is not a failing of the federal government, so much as a challenge of modern-day governance. Information is power—and government officials everywhere are awash in it.

The mishandling of classified records is serious business. If Biden, Trump, or other officials are found to be culpable in mishandling the records, they should be held accountable. But regardless of the findings in these particular cases, the discovery of these classified records should prompt a broader consideration of what secrets the government can actually keep in the 21st century. What is the right balance between securing the secrets from loss and sharing them among authorized personnel, such that they can be useful? What might turn up if every former official did a thorough search of their garages and home offices?

These are pressing questions, to be sure, and perhaps such a review is already underway. We’ll just have to wait for it to be declassified to find out.

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