I don’t want to draw any equivalence between Biden’s actions and Trump’s, and I don’t want to provide excuses for either president’s conduct, but both of these episodes are in part the result of a totally broken classification system. Far too much information is classified, and many of the things that are classified are classified for the wrong reasons — not because their disclosure would harm national security, but because their disclosure would be embarrassing or inconvenient or simply because it’s easier for bureaucrats to classify them than not to.
When everything is classified, then nothing is classified.Given the number of classified secrets, and the number of people who have access to those secrets, it’s just practically impossible for the national security bureaucracy to keep track of them.
It is not even against the rules or laws to duplicate the Classified Documents, so long as the ones receiving the copies have the right security clearance.
These classified documents could be in the garages of anyone who ever was in a Classified Briefing and received a copy. People stuff them in their brief case and who really knows what happens to them. I mean that's like many thousands of people out there.
These things show up at every presidential library, and have to be accounted for, and declassified. Presidential Libraries hold more than 30 million pages of textual classified materials and more than 1,000 rolls of classified microfilm from the Franklin D. Roosevelt through George W. Bush Presidential administrations. In addition, the Libraries hold more than three terabytes of classified electronic records.
In the case of whistleblowers charged under the Espionage Act, the accused are not even permitted to explain their motive for leaking or publishing classified materials that expose government abuses or crimes. These cases are relegated to a technical yes-or-no question about mishandling classified intelligence. And the criminal sentences have been extreme. In 2018, Reality Winner, who tried to blow the whistle about Russian attempts to penetrate software used in some U.S. voting systems, was sentenced to more than five years in prison after pleading guilty to one felony count of unauthorized transmission of national defense information. Drone whistleblower Daniel Hale was given a 45-month sentence in 2021 after pleading guilty to the same charge as Winner. Both were prosecuted under the Espionage Act.
There have also been recent cases*in which government employees have been prosecuted for taking classified documents for more mundane purposes. In early 2020, Asia Janay Lavarello, a civilian Defense Department employee on temporary assignment at the U.S. Embassy in the Philippines, was working on a classified thesis in a secure facility in the embassy when Covid-19 restrictions limited her access. In March, she took home three other classified theses, which she said she wanted to use as models for her own project, as well as notes she made during classified meetings in the embassy. In a plea agreement, Lavarello also admitted to emailing notes to her personal email and to making false statements to FBI agents. She went to prison for three months. Lavarello’s lawyer said she regretted her actions and did not intend to harm the U.S. “Government employees authorized to access classified information should face imprisonment if they misuse that authority in violation of criminal law as Ms.*Lavarello did in this case,” said U.S. Attorney Clare E. Connors. “Such breaches of national security are serious violations of criminal law, and we will pursue them.”
Lavarello’s case stands in stark contrast to those of Bill Clinton’s former national security adviser Sandy Berger and former CIA Director David Petraeus. Berger stole documents from the National Archives in 2003 by stuffing them inside his clothing and then destroyed some classified materials. He claimed he wanted to review the documents to prepare for his testimony before the 9/11 Commission. Petraeus was forced to resign as CIA director in 2012 after it was revealed he had improperly handled classified materials, including taking some to his home and sharing them with his biographer with whom he was having an affair. Berger was fined $50,000 by a federal judge and lost his security clearance, and Petraeus got two years probation and a $100,000 fine. “The way that breaches of classification works is too often: Strict liability for thee, impunity for me,” said the ACLU’s Wizner. “‘Thee’ being anybody who works lower down in the system, and ‘me’ being anyone who has any power.”
In a recent paper for the Knight First Amendment Institute, Jaffer argued that the sprawling classification infrastructure within the U.S. government has operated counter to democratic ideals. “In the years since 9/11, the United States has paid a staggering price for excessive secrecy. Time and again, national security policies crafted behind closed doors and shielded from public scrutiny have proved to be deeply flawed, with far-reaching consequences for life, liberty, and security,” he wrote. “The executive overclassifies for many different reasons — among them, that officials are rarely sanctioned for overclassifying information; that classifying information can afford the classifier bureaucratic advantage; and that classifying information can shield controversial decisions from scrutiny both inside and outside the government.”
Wizner, who has served as the principal legal adviser to NSA whistleblower Edward Snowden since 2013, said that this moment offers an opportunity to challenge the system of overclassification and unnecessary secrecy that has become a centerpiece of U.S. governance. “The problem with almost everything being classified is that it gives the government almost unlimited power and discretion to go after anyone who is a powerless violator and to give a free pass to the powerful,” he asserted. “Snowden’s revelations led to meaningful reforms in Congress, the courts, and the executive branch. Even former Attorney General Eric Holder has acknowledged that Snowden performed a public service.”
None of this appears to be relevant to much of the media coverage or political pontification these days, but it should be. “If history is any guide here, neither of these presidents will be seriously sanctioned for their mishandling of government secrets,” says Jaffer, a veteran civil liberties litigator who waged battles over excessive secrecy throughout the George W. Bush and Obama presidencies. “As a general rule, whistleblowers who disclose secrets in order to inform the public of government wrongdoing are prosecuted aggressively and sanctioned harshly. But senior officials who disclose secrets recklessly, or in order to manipulate public opinion about government policy, tend to be treated with kid gloves.”
Most of my comments came from the internet, and some I just threw in there for grins and giggles!