Gerecht, a former case officer in the Central Intelligence Agency, is a resident scholar at the Foundation for the Defense of Democracies. Follow him on Twitter @ReuelMGerecht. FDD is a nonpartisan research institute focusing on national security and foreign policy.
February 1, 2023 | Washington Examiner
A classified swamp
February 1, 2023 | Washington Examiner
A classified swamp
When Donald Trump won the presidency, an editor at a major liberal publication asked me if I would write a piece on why Trump should be denied access to the nation’s secrets . While I could sympathize with his assessment of the president-elect’s character, the suggestion was surreal.
The authority to classify flows directly (and only) from the president. Neither Congress nor the Supreme Court can classify. Intelligence and defense committees on Capitol Hill do generate classified documents, but the authority to do so is “lent” to them by the executive branch. If they are to oversee and fund the country’s security abroad, they must be allowed to wade through the executive branch’s confidential briefings and papers.
The ugly truth that so many Democrats have been unwilling to accept but the Supreme Court may one day oblige them to digest: Trump had the authority to declassify absolutely anything. There are no executive rules that bind a president. No procedures or precedents from predecessors, let alone GS-15s toiling away in the Justice Department, the Central Intelligence Agency, or the Pentagon, that dictate how a president declassifies. Congress doesn’t have (at least, the Supreme Court has so far not even remotely suggested that it has) the constitutional authority to tell the president what he can or cannot do with classified material.
Trump’s deplorable behavior has certainly shown that Washingtonians rarely reflect on the Everest-high mountain of secrets that officials produce each year. Take David Von Drehle’s reductio ad absurdum in the Washington Post on Trump’s authority: “By that logic [an unlimited power to declassify], a future president could lawfully cart away all the secrets of the U.S. government in a convoy of tractor trailers.”
The only response to such a scenario: As long as Trump was president, he had the constitutional authority to tweet a tractor-trailer full of “secrets” whenever he wanted. If Congress wished to stop him, then it could remove him from office. Trump’s l’etat-c’est-moi actions wouldn’t have been criminal, just disqualifying.
What Trump didn’t have the authority to do was cart the documents away as an ex-president. According to the Presidential Records Act, the National Archives and other agencies (for example, the CIA or the eavesdropping National Security Agency) retain full custodial authority over the official record.
The same, alas, cannot be said of President Joe Biden’s stashes of sensitive material. Vice presidents don’t have classifying authority. Unless President Barack Obama declassified these documents (and he could have done so with a wave of his hand), Biden violated administrative statutes, for which he deserves, at most, a wrist slap — unless we discover that he squirreled away the NSA’s secrets on intercepting Chinese communications or the U.S. Navy’s attack-submarine designs. Given the quantity of classified papers that flowed into the vice president’s hands, given Biden’s age and his likely preference to read in print sensitive information, and given human nature’s tendency to downplay the importance of what becomes common, it’s surprising we haven’t discovered bigger stashes.
The production of classified information was out of control in 1998 when Sen. Daniel Patrick Moynihan (D-NY) wrote a book, Secrecy, warning that, nearly a decade after the Cold War, we were exponentially increasing the quantity of such material and the use of security clearances in government. As the senator astutely noted, too much secrecy deadens government. It inclines the executive branch to abuse secrecy, to inflate its importance, and to leverage it against Congress. A preference for secrecy ineluctably spreads, downgrading and sometimes expelling public information from government channels. And it’s the assessment of what is known (not “secrets”) that usually saves or breaks statesmen.
Too much secrecy protects the incompetent and the mediocre from prying eyes. And it can exclude from public service those who’ve led interesting, multilingual lives overseas since the FBI and other security-clearance issuing agencies can’t verify behavior abroad. The paucity of first-rate people in the national security bureaucracies ought to be a far greater concern than the occasional leaks of classified information from people who are obviously not traitors.
George Shultz, one of the great secretaries of state, exercised extraordinarily good judgment when he refused to allow lie detectors to be used routinely on State Department employees. His wisdom has held at Foggy Bottom. Senior officials have rarely exercised such maturity when it comes to checking classified government: Those on top are rarely ambushed by excessive classification and carelessness.
It’s possible that Trump’s, Biden’s, and now former Vice President Mike Pence’s missteps with sensitive material will oblige those who matter in Washington to develop cooler, more cynical heads about all the routine secrecy of routine governance. It’s doubtful. Like the national debt, Washington’s classified conversations just keep on growing, immune to checks and balances. The district’s political polarization obviously increases the temptation to make mountains out of molehills. But what was true in the CIA in the 1990s is surely more true now: Labeling often doesn’t match the content. A lot of “secrets,” if leaked, wouldn’t injure the United States. It’s doubtful they’d even dent it.