The vast apparatus around national security information is like most things related to security – a silent service we completely ignore until the internet blows up with news that a former president had documents labeled ‘Top Secret/SCI’ at his Florida resort home. Trump has already said the documents were already declassified. If that’s found to be the reality, issues around improperly storing classified documents or having them in his possession after leaving office are moot. Regardless of how that kerfuffle shakes out, it leads to the question, how exactly is information declassified?
How is Information Declassified?
Classification authorities are derived by executive orders born out of the president’s authorities. The Information Security Oversight Office, a part of the National Archives, is the pulse point behind the government classification apparatus. They provide policy oversight on classification and oversee the vast network of government agencies protecting classified information. While the president issues classification policies via executive order, federal agencies have the task of implementation, fueled by the guidance provided in executive orders and correspondence.
For the executive branch, Security Classification Guides (SCGs) provide the framework for things like how to take a TS/SCI document and declassify it – but while the programs should be fairly universal, each agency marches to the beat of their own slightly different drum. ISOO reports a total of 2,116 SCGs in use by federal agencies, with DoD accounting for 74% of them, as of 2022. The ISOO’s annual report noted it was in the process of reviewing SCGs, and indicated a number of inconsistencies – including a number of guides that didn’t offer information on the requirement of there being a specific date or event for declassification.
COVID-19 and the Declassification Backlog
The topic of overclassification has been ongoing – as long as classification policy has existed, there has been pushback about the vast reams of documents being classified. The reasons behind overclassification are somewhat obvious – there are clear penalties for improper disclosure, including incorrectly sharing the wrong sensitive information or the obvious security risks of failing to classify sensitive information. Simply put a classification marker on something and you feel like you’re protecting both your own hide and national security. Win-win, right?
The issue comes when you realize vast troves of information have been classified unnecessarily – and someone has to declassify all of those documents. Declassification is a process, and one exacerbated by COVID-19 and the number of individuals working remotely.
“I believe one of the most effective ways to shore up Americans’ belief in their government is to modernize its outdated systems for classifying and declassifying national security information,” wrote Mark Bradley, director of ISOO, in his annual report on classification issued to the president and released in July. “This is why I was so pleased to receive a copy of the White House’s June 2, 2022, Memorandum for Initiating a Process to Review Information Management and Classification Policies, which directs the relevant directorates of the National Security Council to do just that. This could not be timelier because we can no longer keep our heads above the tsunami of digitally created classified records.”
Bradley noted COVID-19 caused ‘declassification backlogs to spike’ as agencies struggled to protect their secret keepers and security policies simultaneously.
Security officers are tasked with the job of declassifying information. The vast majority of information hits the declassification desk through automatic declassification policies – that’s declassification that takes place based on date or event, and isn’t tied to a request. The next most frequent cause of declassification is Freedom of Information Act (FOIA) request – where individuals (frequently media outlets or nonprofits) request access to information that has been declassified. Executive orders outline classification procedures, including requirements that only government employees can declassify information. Within individual agency SCG, procedures for what that declassification process looks like are outlined (things like crossing out original classification markers on printed documents and issuing a stamp with the date of declassification, for instance – you know, super 21st century stuff).
How Could President Trump Declassify Documents
As we’ve outlined previously, the president is the big chief when it comes to government classification. With rare limitations (census records and nuclear information protected by policies unique to 1954’s Atomic Energy Act) – he can see, declassify, and order just about anything he wants when it comes to government secrets. It may be possible for years of legal wrangling to find that any classified documents that remained in Trump’s possession were improperly classified, but it will be difficult to prove those documents remained classified while in his possession if he argues they weren’t. It’s a question only time and attorneys will tell.