The recent FBI raid of former-president Donald Trump’s house has triggered a national conversation about state secrets, and that’s good. The secrecy apparatus of the United States is awash in contradiction, ambiguity, and overreach. Without an informed public, there is little hope that it will ever see reform. Good government requires transparency. The more secrets a government has, the worse off we all are.
The state just doesn’t have a whole lot of interest in declassifying documents of its own accord. According to Executive Order 13526, agencies are required to release most non-nuclear documents that are over 25 years old. (Unless they don’t want to, and can appeal to the Interagency Security Classification Appeals Panel). Which means if you want to bring positive reform to Bill Clinton’s White House, then boy are you in luck, because those documents are dropping hot. If you want to know how things went so wrong last year that insurrectionists could storm Capitol Hill, you’re going to have to wait a while.
Other methods for declassification include Freedom of Information Act requests and Mandatory Declassification Reviews. Through those, citizens can petition federal agencies to take a look in their filing cabinets and see what is “safe” for disclosure. (“Safe,” I should note, is a term of art. You just would not believe how many hundreds of pages I’ve received over the years that are just solid black lines, or how many times I’ve had to sue the government for said blank pages).
SECRET SUPER PRESIDENTIAL POWER
The President of the United States can wave his hand, and an entire office building of sensitive, non-nuclear documents can suddenly and unambiguously be made free and clear for public release. The reason is that the classification of those documents in the first place flowed entirely from the president’s authority as commander-in-chief.
Executive Order 13526, signed by President Barack Obama, gives “original classification authority” to the president, the vice president, agency heads, and from the agency heads, necessary members of the bureaucracy. That is where state secrets come from.
Not every state secret is, well, secret. Open source material makes up a significant portion of classified material in the locked filing cabinets of the executive branch. One can make the case that if the president or other members of the national security apparatus are inhaling massive amounts of news coverage of Transcarpathia, maybe we don’t want the Transcarpathians knowing it.
Another example is when Wikileaks published its tranches of illegally-acquired classified material. Those days were wild, with journalists poring over every page and reporting their contents broadly. You couldn’t get more open source than that. Yet clearance holders were advised to avoid reading any of the leaks. Why? Because although they were now in the public domain, they were still classified, and reading them would have constituted illegal access.
Would American citizens be better served if they knew the president was really, weirdly interested in Transcarpathia? Perhaps if those secret-but-open-source stories were released legally to the public, the American people might piece together that that a preemptive war or fomented coup is on the horizon, and work to stop it. #istandwithtranscarpathia would probably do the trick.
The more the public knows, the better off it is.
SHARING THE LAUNCH CODES
Here is a thought experiment. Suppose the president decided to give a national address and read off the launch codes of the American nuclear arsenal. Would that be illegal? Restrictions on nuclear data, though established by Congress as separate from the classification regime used elsewhere in government, still give final say in the matter of disclosure to the president.
(Technically, the Secretary of Energy and the Secretary of Defense must clear the data. If there is a disagreement between the two, the president makes the call. But since the president can fire either or both secretaries and hire yes-men to take their places, those checks on the president are nonexistent.)
Can we agree that sharing the launch codes on television would be a big mistake? I hope so. But the president could do it, and possibly avoid prison for doing so. I suspect a conviction would require coming at the president sideways. He or she would not likely go to prison for leaking secrets per se.
HOW TO PROTECT SECRETS FROM THE PRESIDENT
Security experts and professionals are rending their garments and pulling their hair out on Twitter and cable news right now to explain that what Trump did was wrong and that, no, he didn’t really have the authority to mishandle classified material. But almost by definition, it is nigh impossible for the president of the United States to mishandle classified information. Such is the awesome power of the office, and the reason why voters should take great care when choosing who should hold it.
Unless Trump had in a Mar-a-Lago safe the plans for some easy way to enrich uranium, and intended to sell them to a foreign power, as president he absolutely had the right to whatever state secrets he brought home from work, and by virtue of his office—from which virtually the entire classification system of the United States flows—if he said something is declassified, it is declassified.
Where things get tricky is if Biden reclassified whatever it is Trump had in his possession. At that point, the former president would have had to hand over the material.
As of now, the question is whether Trump retained unspeakably dangerous secrets and no one noticed, or whether documents Trump had possession of were reclassified, and what proceeded from there was an ego-driven game of chicken, with Trump claiming on principle that no one would dare take what he had, and the Justice Department saying, “Hmm, let’s just see about that.”
SECRET FLAWS IN THE SCREWY SYSTEM
What we are thus seeing with the FBI raid of Mar-a-Lago is the weirdness of state secrets. They more or less are gentlemen’s agreements from one president to the next to keep the secret train running. The entire Trump presidency was like an experiment to see what happened if Americans elected someone who ignored historical norms.
The United States has too many secrets. Indeed, in the federal government there might be more classified information than unclassified. Men like Trump will come and go, but the vulnerabilities now exposed in the system are not going away. Congress can redesign the way the United States government creates, controls, and concedes classified material. That’s a pretty steep hill to climb, however, for a body that seems incapable of doing much of anything.
And so the power is likely to remain with the president, unimpeded. Did Trump declassify the materials before taking them to Florida? We might have to take his word for it (despite Donald Trump’s word being… unreliable). There is no mechanism or computer that, once a document is declassified, disseminates its new status as just another bit of information in an data-saturated world. So if a president takes a Top Secret document and utters aloud “Declassified!” but nobody hears it, is it declassified? How would anyone know?
That seems to be at the heart of the matter today. Government transparency advocates have hoped for decades that the system would see reform. Well, the public is finally interested in the philosophy of state secrets. If reform is to come, there (hopefully!) will never be a better time than this.