The U.S. Government Keeps Too Many Secrets

That the U.S. government has a problem with classifying information—the process of identifying and protecting documents and discussions that must be kept secret to preserve national security—was established long before President Donald Trump’s Ukraine scandal returned the subject to the headlines.

Eight blue-ribbon U.S. government commissions have addressed the subject since World War II, Elizabeth Goitein, a veteran transparency advocate, told me. Each of them deemed that overclassification, as she put it, “is rampant.”

Classifying information is a key part of how the U.S. government functions and is able to carry out sensitive tasks, but the problem is that too much national-security information—from the trivial to the politically inconvenient—gets labeled “confidential,” “secret,” or “top secret,” meaning that only those with the corresponding government clearance can access it. It’s understandable for missions such as the Navy SEAL raid that killed Osama bin Laden and for sensitive discussions about U.S. national-security or foreign policy. But then there’s also this, from a diplomatic cable in 2006:

Dagestani weddings are serious business: a forum for showing respect, fealty and alliance among families; the bride and groom themselves are little more than showpieces. Weddings take place in discrete parts over three days. On the first day the groom’s family and the bride’s family simultaneously hold separate receptions. During the receptions the groom leads a delegation to the bride’s reception and escorts her back to his own reception, at which point she formally becomes a member of the groom’s family, forsaking her old family and clan. The next day, the groom’s parents hold another reception, this time for the bride’s family and friends, who can “inspect” the family they have given their daughter to. On the third day, the bride’s family holds a reception for the groom’s parents and family.

That paragraph, found among the cables leaked by Chelsea Manning in 2010, was classified “confidential.” Disclosing it was technically a crime.

Even U.S. intelligence officials have complained about the overclassification problem. “Everything’s secret,” Michael Hayden, the former director of the CIA and NSA, once lamented. “I mean, I got an email saying, ‘Merry Christmas.’ It carried a Top Secret NSA classification marking.”

Then there are the many scandals that were shielded from view—not just from the public, but from government officials who might have put a stop to them—at least in part by classification. The higher the classification on a piece of information, the fewer people in government who can access it. Goitein, who directs the national-security program at the Brennan Center, called this “a time-honored technique of keeping other agencies or other officials out of something in order to minimize resistance.” She noted the CIA’s use of torture in the wake of the September 11 attacks as one example. The program of waterboarding and other so-called enhanced interrogation techniques was put in place by a relatively small group of the agency’s members, and was shielded from adequate scrutiny, in part because it was so highly classified. “Anyone who would have objected,” Goitein said, “was excluded.”

Read: Revenge of the intelligence nerds

Few argue that classification is entirely unnecessary. The cables released by Manning, which were published by WikiLeaks, are themselves a testament to the need for certain information to be protected. They contained candid discussions about foreign leaders. They also had the names of foreign civilians who’d met with U.S. officials in sensitive countries and details of their conversations, which put lives at risk.

Yet when so much information among the vast U.S. national-security apparatus is classified without good reason, it exacerbates a culture of secrecy that is vulnerable to abuse. There is little oversight, Goitein said, when it comes to determining whether a decision to classify something was the right one—while decisions not to classify something can lead to heavy penalties. Most cases of overclassification are the result of simple habit, convenience, or an overabundance of caution, but this helps to create a climate that enables the use of excessive secrecy to hide things that are politically problematic or to cover up wrongdoing. That’s allegedly what happened with the July 25 phone call with Ukrainian President Volodymyr Zelensky, which put Trump on the path to an impeachment inquiry. “The system is set up to fail,” Goitein told me. “It’s based on skewed incentives and lax accountability, and that’s why abuses like this become possible.”

Read: What happened in Ukraine?

During the call, according to a reconstructed transcript later released by the White House, Trump pressed Zelensky to investigate discredited allegations surrounding Joe Biden and his elder son’s work in Ukraine. This came as Trump withheld nearly $400 million in military aid. According to the whistle-blower complaint that brought the contents of the call to light, about a dozen U.S. officials were listening in on the phone conversation. (On Wednesday, Secretary of State Mike Pompeo confirmed reports that he was one of them.) But the call took place behind a wall of government secrecy. The notes and transcripts from it, as is common practice with calls between the president and foreign leaders, were classified. Then, according to the complaint, White House officials, allegedly wise to the troubling nature of Trump’s remarks, moved the record of the call to a special computer system typically reserved for military and intelligence matters so sensitive that they require a code word, to prevent it from leaking.

Revealing the scandal required the whistle-blower—reportedly a member of the CIA who was detailed to the White House—to go through a bureaucratic process that was vulnerable to interference by the executive branch.

Read: The problem with the whistle-blower system

This series of events might suggest that the system worked: In the end, the details of the call became public. But it also underlines the risk of the same predisposition toward secrecy that leads to overclassification. U.S. officials are used to having their dealings walled off from scrutiny—and to making sure that classified information doesn’t see the light of day.

The problem of overclassification—and of a fetishization of secrecy more generally—spans administrations. While Trump’s rants against leakers are well known, the Obama administration oversaw a much quieter crackdown on them, prosecuting a record number.

A handful of former intelligence and national-security officials disagreed with the idea that overclassification is all that relevant to the scandal surrounding Trump and Ukraine, saying that the practice normally has more innocuous motives than shielding scandals.

“Classification is more an art than a science,” one told me. “Information is both frequently overclassified and underclassified. This happens because of bureaucratic convenience, rather than maliciousness.”

As one example, this person noted that emails between U.S. officials might typically be sent on a classified system even when the messages contain only mundane details, because switching back and forth between the classified and nonclassified systems can be cumbersome, and it’s better to be safe.

The problem with the alleged use of the code-word server to hide the call’s transcript, this person pointed out, speaking anonymously because of the issue’s sensitivity, is the opposite. The code-word server is inconvenient to use and requires logging in to special computers. “When you’re talking about accessing the code-word server, you’re actually disincentivized. From secret to top secret, or from top secret to top-secret compartmentalized information, it’s generally a rule that you’ll just cover your ass and use the highest classification available. Until you get to this level.”

Sina Beaghley, a former director for intelligence and information security on the National Security Council, said that overclassification results not from a culture of secrecy within the government, but more often from “a culture of ensuring that you maintain protection of secrets that are supposed to be protected. You’re not penalized for overclassification, but you are penalized for underclassification.”

Beaghley, now associate director of the cyber- and intelligence-policy center at the Rand Corporation, co-authored a recent report on reforming the classification system. Among the fixes she recommends are better training within the U.S. government on how to determine and handle classified information, better clarity and distribution of the guidance on what should and shouldn’t be classified, and more consistent efforts related to transparency and declassification when national-security secrets no longer require protection. But she stressed that in general, government officials classify information not because it’s embarrassing, but “because of the level of potential damage to national security that could result if that information is divulged.”

The argument over classification is a long-standing one among U.S. officials who believe the system is generally in good faith and those arguing for greater transparency.

Loch K. Johnson, a professor at the University of Georgia and one of America’s foremost scholars on intelligence, listed what he described as “genuine secrets”—things such as weapons specifications, identities of CIA agents, and surveillance capabilities. “Having said that, many classified documents—even ‘secret’ and ‘top secret’—are often improperly elevated to that level for no good reason, other than to catch the attention of readers higher up in the food chain or, sometimes, to cover up mistakes by making information about them hard to acquire,” Johnson told me in an email. “Democracy depends on openness in government activities, insofar as possible.”