The Just Security Podcast

The Classification Process Declassified

June 02, 2023 Just Security Episode 28
The Just Security Podcast
The Classification Process Declassified
Show Notes Transcript

From Donald Trump to Joe Biden, presidents have made a lot of news for keeping classified documents in their homes and offices. Presidential classification and declassification is a mysterious process that often unfolds away from public view. President Trump even famously claimed that he could declassify a document just by thinking about it.

Trump's comments raised an important question: What exactly is the process for presidents to classify and declassify information? The answer matters because classified documents can contain some of the United States’ most closely guarded secrets, including the location and identities of intelligence sources abroad. Declassification is equally important for promoting government accountability, and helping the public understand government policies and actions. 

To help us understand how the presidential classification and declassification process works in practice, we have Brian Greer and Wendy Leben. For nearly a decade, Brian was an attorney in the CIA's Office of General Counsel. And Wendy was a senior intelligence analyst in the Department of Defense for 13 years, including seven deployments to Iraq and Afghanistan. 

Show Notes: 

  • Brian Greer (@secretsandlaws)
  • Wendy Leben
  • Brian and Wendy’s Just Security article analyzing U.S. government classification and declassification processes
  • Just Security’s classified information coverage
  • 19:20 NYU’s American Journalism Online Program
  • Music: “The Parade” by “Hey Pluto!” from Uppbeat: (License code: 36B6ODD7Y6ODZ3BX)
  • Music: “Backed Vibes” by Kevin MacLeod from Uppbeat: (License code: K8XOQNJSNLOU5C8G) 

Paras Shah: From Donald Trump to Joe Biden, presidents have made a lot of news for keeping classified documents in their homes and offices. Presidential classification and declassification is a mysterious process that often unfolds away from public view.  

President Trump even famously claimed that he could declassify a document just by thinking about it.

Donald Trump: If you're the president of the United States, you can declassify just by saying “It's declassified.” Even by thinking about it. It doesn't have to be a process. There can be a process, but it doesn't have to be. You're the president, you make that decision.

Paras: Trump's comments raised an important question, what exactly is the process for presidents to classify and declassify information? The answer matters because classified documents can contain some of the United States’ most closely guarded secrets, including the location and identities of intelligence sources abroad. Declassification is equally important for promoting government accountability, and helping the public understand government policies and actions.  

Welcome to the Just Security Podcast. I'm your host, Paras Shah. 

To help us understand how the Presidential classification and declassification process works in practice, we have Brian Greer and Wendy Leben. For nearly a decade, Brian was an attorney in the CIA's Office of General Counsel. And Wendy was a senior intelligence analyst in the Department of Defense for 13 years, including seven deployments to Iraq and Afghanistan. 

Hey, Brian, hey, Wendy. Welcome to the show.

Brian Greer: Thanks for having us. 

Wendy Leben: Yeah, thank you.

Paras: Brian, when people hear the phrase “classified information,” there's some confusion around what that actually means, especially for listeners who haven't worked in government or been around government. So to get us started, can you explain what classified information actually is?

Brian: Yeah, so classified information at its core is information that is owned by the executive branch. So usually generated or collected by the executive branch, that relates to the national security or foreign affairs of the United States, and the release of that information to the public would harm national security. It's just as simple as that. And it's not even that it definitely has to harm national security, it's that it reasonably could expect it to. So it doesn't require any sort of analytical certainty, but that it could. A lot of people, that thing you normally hear about is sources and methods information. So information that could reveal a human source, or a technical source, or a collection method.

Paras: So as I understand it, in the world of classified information, there are two types of government officials: original classifiers and derivative classifiers. And every document, every image, map, notebook, email, everything has to receive a classification marking from one of those two authorities. I think most people know what an original classifier is like an agency head, but, Wendy, you spent many years as a derivative classifier. What's the difference? And how did your role work?

Wendy: Sure. So, if you have original classification authority, then you are the person who determines that this information should be held very closely because it fits XYZ guideline, and we determined categorically that it is top secret, and it needs to be handled in this way.  

Derivative classification authority is based solely on preexisting guides. Literal guidebooks. They are hundreds of pages long. And some have been released with redactions if anyone's interested in a feel for them. But basically, as a derivative classifier, anytime I send an email or I make a product, I go through this multi-hundred page document. You would check and see, like the sentence I just wrote, came from, say, an intelligence report, and then this other information came from a signals intelligence report, and if I put those together in my classification guide, it turns out to have this classification. And so that is what I put on my product. It's very administrative at that point.

Paras: Is that for everyone? Like, does the President have to also go line by line in these reports and consult these manuals? 

Brian: The President is an original classification authority. And, not only that, but the President sets up the executive order that creates classified information and controls it. And so they are, in essence, the ultimate classifier. But, given how the regime works, it's not like the President is even ever exercising that classification authority in the first instance because, basically, information reaches the President's desk, it's almost already been classified by someone else for the intelligence community. It's not often that an unmarked document that should have been classified is ever going to reach the President's desk. Someone else in the national security apparatus has created that document, has pulled the sources, has looked at the classification guides, and made sure that it is properly marked, and they've already classified it themselves. So with all this talk about the President being a classifier and all that, it's an authority that the President themselves, like, never actually really uses.

Paras: What about the flip side of this, which is declassification? How does that process work?

Brian: Yeah. So, with the President, this is where a lot of I think the misunderstandings have come out, and a lot of the dialogue that's been around. You know, of course, when Trump says something like, “I can declassify something just by thinking about it,” that creates a lot of understandable feedback. On the flip side, you know, a lot of people criticizing that were also saying, well, there is a formal process that the President needs to follow when declassifying information. And the truth is, there's really not any sort of formal process in place. You know, there's a public executive order out there on classification that anyone can go read. There's nothing in there about procedures that the President has to follow. It's really ultimately left to the President's discretion as to how to declassify information. 

Paras: Why is that the case? 

Brian: For a few reasons. First, classified information is ultimately created by and for the President to carry out his or her duties. And so the President makes the rules and they typically don't make rules that restrain themselves. In my experience, the executive, across administrations, think that Congress should not have real oversight or power over classified information. And we do if you assume a normal president who's acting rationally in good faith, we do want to give them broad discretion, in terms of how information is both classified and declassified, depending on whatever the national security issue is they're facing. It's, I think, for good reason that we've left it sort of unfettered.

Wendy: I want to add one point of clarification there, is that there is precedent if Congress wanted to get involved because Department of Energy's classification data is done under a congressional statute. And so, there's no reason that they couldn't create statutory requirements around the rest of the classified communities data. Then, in the future, we would not have to rely on a president's good faith because it would actually be in statute how these would be classified and declassified instead of just an executive order.

Brian: Yeah, and that category information is called restricted data. And it basically relates to nuclear program. And that information is restricted and subject to special requirements, for good reason. But I guess, just to make clear, listeners, the conversation, I think today will focus on classified information under Executive Order and not this separate category where there are, in fact, sort of unique rules in place for it. But that that is a great point of Congress has at least in that area, shown that it can at least try to regulate that information.

Paras: Other than this one special category of information, Congress doesn't seem super involved in regulating classified information. And that gives the President a lot of leeway to maneuver and unilateral authority. Brian, when you are in the government, how did you see that play out?

Brian: Yeah, I mean, usually what happens if the President is involved at all is: the President and the White House indicate that they want to declassify a piece of information or category of information. And so sometimes, that may be for a speech that the President wants to give about an important topic. Sometimes it might be they want some documents to come out. Other times, it might be the President has a trip coming up where they want to meet with a foreign leader and release some information for that. So, oftentimes, that will be the case. But usually what happens is a general direction is then provided to the agencies in the national security arena to work, start working on this with the White House staff.

Paras: Can you give us an example?

Brian: Let's say, you know, President Obama gave probably one, if not multiple speeches on, on drone strikes, and what US policy and practices are for that. You know, that speech was heavily coordinated with policymakers for all the agencies, lawyers were heavily involved in all that. And so all those drafts were sort of treated as classified, heavily circulated and edited until everyone was sort of comfortable at the end of that process that this could be declassified. But it wasn't like at the end of that process, that the President Obama then, you know, signed a declassification order declassifying the speech. The same with some documents about the CIA's detention interrogation program and let's say that needed to come out and the White House wanted them to come out. That happened, we saw with the Senate report on that program. It's not like President Obama was sort of personally directing the CIA what it should release or what it shouldn't. The White House made pretty clear to the CIA it wanted everything to come out that could possibly come out, and then the agencies figured it out. So that's normally what happens is, the President sort of kicks off a process and then the White House staff sort of manage it working with agencies. The President has better things to do than to get involved with, like, what's redacted or you know what a single sentence says in a speech.

Wendy: As another example of kind of how this plays out, Brian discussed the way that the Obama administration if they were gonna make a speech, they might coordinate with all of the entities. And sometimes we, the analysts, would see speeches like that and — just on the news — and you're like, “Oh, this sounds familiar and I thought this was classified, but apparently now it is not.” Because those things really do just happen at these high levels behind the scenes. And it would be unknown to us as analysts, whether or not the President went through any process to do that. Because we, the people who create these documents or create the baseline intelligence, just don't see things at that level, like someone like Brian would, or someone at the senior levels would. 

And I think I can think of examples during my time in which we definitely had that realization of how did this process come about. For example, when Trump tweets out photographs of Iranian launches, it actually just doesn't matter whether or not he coordinated with anyone behind the scenes, because he can, in fact, just tweet that. And so, even though at the time, there was a lot of confusion over, was this a leak? Was it an accidental tweet? Was it something he had coordinated in advance? None of those things actually matter. And I think that that's really critical. 

Paras: Okay, that seems like quite the trade off. On the one hand, we want the President to be able to act quickly and respond to changing circumstances. Basically do whatever they need to do with that information. And on the other hand, this system has been created with a lot of rules and layers. So how do you reconcile those trade offs? 

Brian: We've just assumed we will have rational actors in the presidency who are going to do the obviously right things and that's consult with their staff before making a decision, particularly if it involves classified information, have the humility to realize that they're not necessarily going to know the right answer about what to do, and then to coordinate and follow a process that even if it doesn't formally exist, at least as a best practice, in terms of coordinating with the right folks. But, again, I don't think there's an easy way to, like, reform that or fix that. There's there's not going to be an effective effort to, I think, say that “Oh, the President can't declassify something” when that information is, is, again, created for them and for their use. So, unfortunately, there's not a lot of, like, clean answers here about how we can fix this other than making sure that people that hold that office belong there.

Wendy: And I think that's a really interesting dichotomy between the President as the President's authority, and between anyone else who works in that community. Because if President Obama say, accidentally says something that he shouldn't have and phrased it poorly, and he accidentally said classified information, he has that authority because he can just declassify it as the president. Whereas if I'm saying something, and I accidentally say something that is very classified, I can get in trouble for it because I am not the president. And so it is interesting to see how expansive we're saying that presidential authority is. 

As 13 years deeply involved in this, I had no idea that there were absolutely no procedures a president had to follow. And I think if anything, as an insider who goes through all of these mandatory trainings every year on classification, and don't forget to use your classification guide, and you see all of this procedure every day to then think that at the presidential level, declassification is kind of a free for all, I think, is a little bit counterintuitive. 

Paras: Because presidents have all this authority to declassify information, how do we even know it’s happened? Is there a process that they need to follow? Is there an announcement they need to make? Do they even need to tell anyone?

Brian: It's a great question and one that no one's ever thought about prior to Trump, I would guarantee. Because it's just such a novel and just kind of absurd discussion that we're having of, you know, could the president declassify something in their head? And one reason we haven't is for a very practical reason, which is typically when something is declassified, the whole point is to promptly release it to the public. Right. So the evidence of the declassification is just that it was released to the public in the speech, in the document release, whatever. Like that's why we've never had this debate before. We've never had something secretly declassified, basically out of potential spite, that the President then wanted to, like, publicly spring later against a political opponent. That's just never happened before.

Paras: Basically, if the President declassified it, and there's no one around to hear it or see it, is it actually declassified? 

Brian: Think about another core presidential power that's exclusive to them, which is like the pardon power right? Could the President pardon someone in their head? I think, no, absolutely not. Could they maybe, though, direct it orally, and then someone else can carry that decision out? Like, I think so. Ideally, they'd still sign a piece of paper. And pardons are maybe not the best example because you do have to go present that to the court. But the notion that you could pardon someone in your head and not tell anyone, and that would be effective is, is absurd. And I would say the same with classification.

Paras: Okay, let's go back to those documents that have been found at Mar-A-Lago and at Pence and Biden's homes. I know things can get chaotic when presidents leave office. But, that's a lot of classified information to misplace. How easy is it for officials to take this material home?

Brian: The classification system and protection of classified information depends, in large part, just on trust. Trusting the President, trusting the millions of people out there with clearances, to do the right thing. And we still have lots of checks and balances in place, there's all the background checks you have to do go through to get access. There's all the monitoring of computers that goes on, monitoring your printers, all that kind of stuff. But, ultimately, it's a system based on trust. I don't know what you see in movies, but, like, when I left the CIA everyday, no one searched my bag to see what I had or anything like that. That doesn't happen at the White House either or the Department of Defense. It's, it's really a system based on trust.

So then focusing specifically on the White House situation, problem there really is twofold. One, you've got an environment where you have classified and unclassified information intermingled on a daily basis. At the CIA, you've got the opposite, right? It's almost everything is classified, almost nothing is unclassified. So it's easy to sort of keep everything segregated because almost everything's classified. If you've worked at let's say, the Department of Commerce, almost everything there is unclassified, all your work is gonna be unclassified. But you know, if you have to do classified work, you might go in the skiff and have a very specific classified computer there and do your work there. Though in the White House, it's everything is intermingled. Together. You might have a classified computer here, unclassified computer here. The West Wing is considered a skiff, right? So you can give the President the PDB and brief them. But, like, literally half an hour later, it could be, like, an elementary school teacher who got Teacher of the Year, like in the same room, right, getting a proclamation signed by the President, like literally 10 minutes after the President just signed a sensitive intelligence document. So it's a recipe for this intermingling happening. And then finally, just combine it with the, how chaotic the transitions are, right. Like the President, Vice President work until the very last minute of being in office, and then are expected to sort of get out, right, and take everything with them. Now, obviously, there's more lead time involved in that, but they need to look, I think, carefully at how these transitions happen. Can they work on transitioning more to like another classified space? And then in that space, you know, in February or March, go through carefully with the classification expert and sort out, okay, these are the President's personal effects, they can take them home, this is classified, this stays here. But they need experts involved in that, and they need more time. They just don't have either of those things now.

Wendy: Even to the extent I understand how those mistakes happen, I would say I still don't think it's justifiable. It really is, to me, partly a laziness factor because plenty of analysts have had to move offices numerous times, and pick up their boxes of papers and move them and make sure you go through the right procedure to make sure you can physically move them or have someone else physically move them. And so, I do get frustrated when representatives of, usually politicians — but not always there's been, you know, Sandy Berger, former CIA guy — and they, they do these things, and they say like, “Oh, it was just a mistake, we didn't know, or we had too much going on.” And I don't buy that. It really is just laziness that they, especially people who have staffs to help do this, and are not trying to do it on their own. I do find it really hard to believe the whole “Oops, this was in my briefcase and I didn't think to check” because that wouldn't fly for anyone else who was entrusted with that exact same information, including the people who created that document.

Paras: This has been such an interesting discussion. And it really is fascinating to see how these different policies play out. 

Brian, Wendy, thanks so much for joining the show.

Brian: Thank you for having us.

Paras: The Just Security Podcast is produced in partnership with NYU’s American Journalism Online Program. AJO trains students to become world class journalists, no matter where they live, or work. Find out more about AJO and how you can apply in our show notes. This episode is hosted by me, Paras Shah, with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song, The Parade by Hey Pluto. Special thanks to Brian Greer, Alex Kapelman, Wendy Leben and Ben Montoya. We'll link to Brian and Wendy's piece on presidential classification and declassification in the show notes. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.