The real classified documents problem: there are far too many

Recently, I was talking with a colleague about the classified documents found at President Biden’s home, and I suggested that if someone looked through the papers of most former presidents, vice presidents and cabinet officers, they would make similar discoveries. 

Little did I imagine that my suspicions would be confirmed later that very day when a search of former Vice President Mike Pence’s residence produced a similar finding to that at the Biden home. And now the National Archives has asked the other former presidents and vice presidents to search their homes and offices for anything covered by the Presidential Records Act, whether classified or not.

Of course, the public should be concerned whenever classified documents are found in insecure and inappropriate places. However, the problem extends far beyond a few high officials not returning a few classified documents, but to the entire classification system, and that will be much harder to solve than just insisting that everyone be more careful when they leave their government jobs.

A big part of the problem is its sheer size. By some estimates, there are as many as 50 million documents that are classified each year. Another major factor is over-classification, which includes classifying documents that should never have been classified and stamping “Top Secret” on reports that warrant only a “Confidential” tag. In addition, the number of officials and agencies that have the power to classify material is also huge. It’s not limited to the president’s office, and obvious agencies like Defense, State and the CIA, but extends to every federal agency and far down their organization charts.

But the biggest problem is that once documents are classified, they almost never lose their classification label. There is an executive order that supposedly automatically declassifies documents after 25 years, but it has exceptions, and the order alone and the passage of time do not remove the classification stamp or make the records publicly available.

Here’s why declassification is so fraught, even with documents decades out of date, and even when federal agencies want to declassify the material. Quite understandably, just because an employee has access to certain secret documents doesn’t mean they can declassify them on their own authority. Even assuming a given employee has proper declassification authority, shouldn’t that person want to (or have to) check with others who might know more about the subject or had been involved in the original decision to classify? In cases in which federal agencies are asked to declassify documents, they always have to check with several other agencies, and not just a couple of people in their own shop, before making the decision.

Those are imposing steps even for an agency that wants to jump through all the hoops. Besides, what are the incentives for federal employees to pursue declassification in general? 

Before trying to declassify a document, many would ask, “What’s in it for me?” Are federal careers burnished by counting the number of records they declassified? Has anyone ever been awarded a medal or received a promotion for releasing any government records, let alone ones that had to be declassified? Many of us would also ask, will this make anyone in government look good, or might it embarrass someone? And before trying to declassify the records, most of us would think of the effort it will take, including having to do battle with others who oppose declassification. Even if a federal employee jumps through all the hoops and succeeds in getting a few documents’ secrecy stamps changed, they’d probably wonder if their efforts will make the country safer for democracy, with hundreds of millions of documents still classified — and more coming in every day. It would feel like trying to return water to the ocean, a teacup at a time.

None of this is a secret: The real problem is what to do about a broken system for which there are no ready answers. There are some efforts underway to deal with over-classification, and perhaps the revelations that former presidents and vice presidents kept a few classified documents when they left office will spur the federal government to take a fundamental look at the classification system and make some much-needed changes. Even that will not make any real headway without a major commitment of staff and money, which only Congress can provide. 

Unlike most governmental problems today, this one is not politically charged, which suggests that it is one that Congress could take on with some hope of success if it has the will to try.

Alan B. Morrison is an associate dean at The George Washington University Law School. He first learned about the problems with classified information when he was a naval officer before he was a lawyer.