President Obama turned a few heads on Fox News Sunday when host Chris Wallace asked him whether Hillary Clinton’s emails—some of which contained information since deemed to be classified—damaged national security. Obama replied, “There’s classified, and then there’s classified.” He went on, “There’s stuff that is really top secret, top secret—and there’s stuff that … you might not want out on the transom … but is basically stuff that you could get in open source.”
What Obama said is common knowledge among those who have worked in the national-security bureaucracy. But it raises big questions, especially given this president’s words and actions. He came into office promising “a new era of open government“—yet his Justice Department has prosecuted more officials for leaking classified information than any of his predecessors.
So maybe he should clarify this distinction between classified and classified—between documents reflexively stamped “top secret” and those that are “really top secret, top secret.” The fact that he acknowledges the distinction suggests that his early agenda of openness hasn’t panned out—and it’s worth exploring why.
In the hierarchy of official secrets, there is Confidential, Secret, top secret, and top secret, plus various codewords indicating that only those with specially compartmentalized clearances can read such material. “Confidential” is so meaningless that Gen. James Clapper, director of national intelligence, recently proposed eliminating the label. “Secret” isn’t much more serious: When I joined a congressman’s staff many years ago, I was granted a provisional secret clearance while awaiting the results of my security investigation. Had I been a spy and given the Russians every document marked secret that I could lay my hands on, it wouldn’t have hurt the United States or helped the Soviet Union in the slightest.
Top secret gets into some serious business, but even many of these documents are no big deal. (There’s top secret and, as Obama put it, “really top secret, top secret.”) Even some of the top secret-plus labels don’t always mean much. The documents that Edward Snowden leaked describing the NSA’s metadata-collection program were marked top secret/S.C.I. (Specially Compartmented Intelligence), but even Gen. Keith Alexander, the NSA director at the time, later acknowledged that, if those documents had been the only ones Snowden leaked, it wouldn’t have been a big deal. (One reason he said this was that metadata collection comprised a tiny percentage of NSA activities, and it wasn’t a very successful program either. Other programs that Snowden revealed were considered much more sensitive and useful.)
At the end of 2014 (the most recent year for which numbers are available), 2.9 million Americans had regular access to classified information—1.2 million of them had access to top secret information. This marked only a slight reduction from the year before, when the figures totaled 3.1 million and 1.3 million.
More telling, 665,000 people have the authority to declare a document classified (257,000 of them have the authority to stamp it top secret). This too is a decline from the year before (777,000 and 296,000, respectively), but these numbers are still staggering.
To some extent, this proliferation of secret-stamping happens the same way grade-inflation happens at universities. Someone’s term paper gets an A, after which it’s hard to give papers of similar quality a lower grade. But there’s another factor at play in the classified world—access. A friend who recently worked in the Pentagon told me that she once read a colleague’s policy analysis marked top secret. It didn’t seem to contain any information that couldn’t be found in the open literature, so she asked a colleague why the classification was so high. He replied, “If it wasn’t top secret, no one would read it.”
There’s a presumption throughout government that a paper marked top secret contains the real skinny, comes from deep knowledge or high-level intelligence, whereas a paper marked with a lower-level clearance (or no clearance at all) possesses no special insight. Sometimes this is true; often, it’s not.
In the years of Obama’s presidency, the number of Original Classification Authorizations—new pieces of information that are deemed confidential, secret, or top secret—has gone down by 45 percent, from 4,109 in 2008 to 2,276 in 2014, the last year for which numbers exist. (The steepest decline, to 2,978, occurred in Obama’s first year; the dip has since been steady but slow.) This is a positive trend. In a memo dated March 23, Gen. Clapper called on the heads of the 16 U.S. intelligence agencies to reduce the number still further.
However, this has not been accompanied by a reduction in the number of classified documents. To the contrary, the number of derivative classifications— decisions to stamp specific documents classified based on a general decision about the subject at hand—has soared, from 23.2 million in 2008 to 77 million in 2014.
Future historians are going to suffer maddeningly long waits for the archivists to wade through all those emails and hard drives—which is one reason the Freedom of Information Act desperately needs reforms.
Early on, Obama sought to do something about that. In January 2009, on his first full day as president, in his first memo to the heads of all executive departments and agencies, Obama declared that the Freedom of Information Act “should be administered with a clear presumption: In the face of doubt, openness prevails.” Information, he added, should not be kept secret simply because officials “might be embarrassed by disclosure” or on the grounds of “speculative or abstract fears.” And in responding to FOIA requests, agencies “should act promptly and in a spirit of cooperation,” recognizing that they are “servants of the public.”
I wrote a Slate column at the time, hailing the memo for not only its good intentions but also its likely consequences. Though “a presumption is not a requirement,” I noted, “presumptions matter to bureaucrats: they lay down what is expected; they set the boundaries of safe behavior.” President George W. Bush had signed an executive order essentially stating: When in doubt, classify. Obama had now done the opposite, and behavior in the ranks might have changed.
And yet it didn’t change.
When FOIA was passed in 1967—and strengthened in 1974—the law’s language required agencies to respond to requests for information within 10 business days. This was always a preposterous standard, and so the rule was extended to two months, which was also stretched, understandably so. But now the FOIA offices move at a snail’s pace, with requests routinely taking many months—and often a couple years—to process. (Requests for Mandatory Declassification Reviews, another method of unlocking data, take on average 224 days; when the requests are denied, appeals take, on average, another 296 days.)
To some degree, this is because of the crushing caseload in FOIA offices. Since Obama’s first year as president, annual requests for information have risen by 45 percent—from 500,000 to 715,000. Had Obama made FOIA the high priority that he signaled on his first day as president, he could have requested money to hire more FOIA personnel. Yet over this same period, the level of personnel has risen by only 3 percent, from 4,000 to 4,121. No wonder, then, that the backlog of cases has also swelled by 45 percent—from 70,777 to 102,828.
But the growing caseload isn’t the only reason for the slowdown. If the agencies had taken Obama’s 2009 memo seriously, they could have dealt with the burden by adopting a presumption to disclose. But they haven’t. In fact, agencies have grown more hostile to FOIA and they’ve been egged on in their resistance by the Department of Justice. In 2014, Congress was about to enact reforms that would have required agencies to loosen their strictures, but the Justice Department’s Office of Information Policy lobbied against the measures. Anne Weismann, a former Justice Department official, now at the nonprofit Campaign for Accountability, told me, “OIP sees their role as protecting agencies from intrusion.” Internal memoranda that Vice senior investigative reporter and information activist Jason Leopold obtained, ironically, under the Freedom of Information Act, confirmed the claim.
There are other factors. Even in more open days, the law allowed agencies to claim any of nine exemptions—one for reasons of national security, another for the protection of privacy, another (the notorious Exemption No. 5) concerning “privileged information within or between agencies.” An exemption doesn’t give an agency the right to deny a request, but it does tilt the balance in denial’s favor—and Obama’s 2009 order, calling for a presumption of disclosure, didn’t address that tilt explicitly.
Intelligence agencies in particular have used Exemption No. 5 to block disclosure. For instance, if someone has requested declassification of a Pentagon document, and if the document refers to the CIA, the CIA can claim equity in the request—and the right to weigh in on whether the government grants or denies it.
This has been true from the beginning of FOIA, and yet I am not indulging in romanticized nostalgia when I say things used to be different. In the early 1980s, while researching a book on the history of nuclear strategy (which became The Wizards of Armageddon, published in 1983), I got thousands of documents declassified through FOIA and Mandatory Declassification Review. Not only that, but my case officer in the Pentagon eagerly offered assistance not only in processing the requests—which took weeks or months, not years—but also in helping me obtain a waiver of all fees for reasons of “the public interest.”
Jump to 2014, when I submitted some FOIA and MDR requests for a book I was writing on the history of cyber war (recently published as Dark Territory). A few of those requests were approved, though it took between nine months and a year. I received one cache of requested documents, concerning a Pentagon–NSA exercise in 1997 called Eligible Receiver, two years after my request—too late to be included in the book (though no harm was done, as I’d obtained almost all the information, though not the documents, by interviewing participants). It took that long, even though a Pentagon historian told me exactly where the documents could be found, a tip that I passed along to the FOIA officer. Even then, the package the FOIA office sent me contained only some of the documents I’d requested. It contained no list of the other documents, much less an explanation for why they weren’t included (which FOIA requires). My request, on those scores, was simply unaddressed.
Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, told me Thursday, “This is a time of particularly promising ferment over secrecy policy. There is a recognition, even within the national-security apparatus, that the classification system has overreached and needs to be pruned back.” Yet by all measures, the bureaucracies persist in resisting this pruning, Congress won’t allocate the money for the shears, and the president hasn’t mustered the full attention and commitment that the task requires. Information may want to be free, but Washington has it wrapped in a tangle.
