Policy Issues / Woke and Weaponized

Combatting Over-Classification and Weaponized Intelligence

by Kash Patel, Troup Hemenway

February 17, 2023

I. Introduction 

On January 6, 2017, then-Federal Bureau of Investigation (FBI) Director James Comey briefed President-elect Donald Trump on a summary of salacious and uncorroborated material compiled by former British spy Christopher Steele. The now-infamous “Steele Dossier,” impermissibly funded by the Democratic National Committee (DNC) and the Hillary Clinton campaign, was a cornerstone of the years-long “Russia collusion” conspiracy theory—a baseless, left-wing fever dream that nonetheless deeply damaged the Trump presidency at its outset. As just one of the costs, the energy and resources the new Administration had to devote to rebutting the Russia hoax were considerable, and the effort blunted its ability to turn the rudders of the administrative state quickly.

Although the Clinton campaign and its allies were effective at peddling Steele’s allegations and related Trump-Russia stories to a willing leftist media, it was their laundering of opposition “research” through the intelligence community that provided a veneer of legitimacy to patently ludicrous and fabricated claims.  Perhaps most shockingly, congressional investigators determined—and the Department of Justice (DOJ) Inspector General (IG) later confirmed—that the Steele Dossier formed an essential component of four Foreign Intelligence Surveillance Act (FISA) warrants used to spy on the Trump campaign.  The DOJ IG later identified 17 significant errors or omissions in the FISA applications. 

Unfortunately, the Steele Dossier is not an aberration. Still, it is an especially prominent example of how the national security state has weaponized the classification system to maintain its prerogatives and punish its perceived opponents. These longstanding abuses transcend opposition to President Trump and illuminate how the national security state uses classification—as one of many tools—to accumulate power and thwart constitutional government.  Only by empowering competent and aggressive non-career officials can a future Administration or Congress restore accountability and ensure that the intelligence bureaucracy is appropriately subordinate to the elected President and his appointees. 

In furtherance of those objectives, and following a brief background section, this paper identifies how the classification system has been weaponized and proposes innovative solutions to defeat the Deep State.  

II. Background and History 

1. Levels of classification 

Although recognition of the need for secrecy in intelligence operations predates the founding of the Republic, the modern classification system was established relatively recently.  Executive Order (EO) 10290, issued by President Truman in 1951, originally outlined the “standards for the classification, transmission, and handling, by department and agencies of the Executive Branch, of official information which requires safeguarding in the interest of the security of the United States.”  EO 13526, issued by Barack Obama in 2009, is the most recent in a series of executive orders outlining the governing framework for classified national security information. 

There are three basic levels of classified information, which are purportedly defined by the potential harm to national security:  

• (1) “Top Secret” information, if released, would cause “exceptionally grave damage” to national security; 
• (2) “Secret” information, if released, would cause “serious damage” to national security; 
• (3) and “Confidential” information, if released, would cause “damage” to national security.  

These standards are so general as to be nearly useless—and grossly understate the complexity of contemporary classification markings, which are supposed to be applied precisely not just to documents but to each individual paragraph therein.  In addition to highly-classified information, there has also been a proliferation of restrictive markings—such as “For Official Use Only”—intended to prevent or limit the public release of unclassified information.¹⁴ 

A 2014 Office of Director National Intelligence (ODNI) Classification Guide, made public in 2016, includes more than 60 pages of detailed rules—and specifically does not apply to information more sensitive than Top Secret such as “Special Access Programs.”  A 2016 report from Information Security Oversight Office at the National Archives identified over 2,000 different security classification guides.  

Given that an allegation of mishandling or engaging in the unauthorized disclosure of classified information can derail an intelligence official’s career, there are significant incentives to err on the side of caution and overclassify information. 

2. Overclassification 

There is little dispute that overclassification is a problem endemic to the national security state. In the mid-1990s, Senator Daniel Patrick Moynihan chaired a “Commission on Protecting and Reducing Government Secrecy.”  The Commission’s report, and Moynihan’s subsequent book, characterized secrecy as “a form of government regulation” and highlighted the national security dangers of excessive secrecy.  Moynihan’s efforts forced the first public disclosure of the Venona project, which successfully decrypted and translated thousands of Soviet messages transmitted from the 1940s.  The Venona transcripts paint perhaps the most damning picture of Soviet espionage in the United States, including the treachery of Alger Hiss, but were withheld from the public and policymakers (including President Truman) when they could have significantly shaped Cold War debate. 

The Moynihan Commission formulated a series of commonsense recommendations, and its work remains highly regarded by commentators.  However, the problems of overclassification and excessive government secrecy remain unsolved. 

The National Archives estimated that, in 2016, of more than 102 million pages reviewed, 44 million pages were declassified.  The same report estimated the one-year cost of security classification activities—including protection and maintenance of classified systems; security management oversight and planning;  personnel security; and physical security—as almost $17 billion.  During the same period, the federal government spent more than $100 billion on “security classification activities” over ten years.  

3. Declassification 

Generally, the authority to declassify is coextensive with the authority to classify. EO 13526 designates the President, officials appointed by and/or subordinate to the President, and their delegees as “Original Classification Authorities” (OCAs).  EO 13526 prescribes “automatic declassification” after 25 years, though this rule is substantially modified and arguably swallowed by an array of extensive exceptions. There is a similar standard (and list of exceptions) for “mandatory declassification” based on specific requests and a vague directive requiring agencies to conduct “systematic” declassification reviews. 

III. The Weaponization of Classification  

If classification amounts to regulation, as Senator Moynihan asserted, then application of the standards summarized above is “arbitrary and capricious”— contrary to law, common sense, and constitutional government.

1. Byzantine processes and procedures 

Perhaps unsurprisingly, given the scope and complexity of the modern security state, both classification and declassification are highly subjective processes masquerading as objective ones.  As is common throughout the executive branch, presidential appointees lack the supposed expertise of their subordinates, to whom they are functionally held hostage.  Witness the 2020 kerfuffle over the book published by former National Security Advisor John Bolton.  Senior White House lawyers were vilified for questioning the declassification judgment of a detailee from the National Archives, whom a federal judge later determined got it wrong. 

Even more perniciously, career officials steeped in the minutiae of byzantine classification rules can (and do) withhold the most sensitive and highly-restricted information from their non-career superiors, who may not even know for what information to ask. Political appointees suddenly offered the opportunity to be “read in” to a particular “compartment” in order to access a timely intelligence report—or because career officials need a signature—may wonder how many other compartments exist but are unlikely to receive a satisfactory answer.  As a result, in echoes of Venona, even Cabinet officials generally do not have a full picture of the government’s collective knowledge about a particular topic. Senator Moynihan’s view that classification is regulation really comes to the fore here because, by selectively proposing that certain classified information be shared with political appointees but not other bodies of related classified information, subordinates are granted regulatory prerogatives denied to their superiors.  Or such subordinate officials, at the very least, can artificially constrain the regulatory choices available to their superiors.

Beyond the executive branch, career officials deploy a seemingly infinite array of justifications—such as the Privacy Act and various invented privileges based on ostensible traditions and practices—to keep even unclassified information from Congress and the public.

2. Toothless declassification process

Analysis of “mandatory declassification reviews,” arising from requests for particular records, indicates that “92% of the time, the [reviewing] agency determines that at least some of the requested records need not remain classified.”  This relatively small sample indicates an epidemic of overclassification in which 25 years is often the default period rather than the maximum duration.  

Unfortunately, there is no equally pervasive system of declassification to counterbalance overclassification.  Twenty-five years is a long time, and EO 13526 is so replete with exceptions that a majority of reviewed pages are never declassified. 

3. Selective leaks 

While most intelligence information is hidden from the public, somehow a steady flow of leaks—often purporting to reveal extremely sensitive information and relying on a staggering number of unnamed sources—invariably make their way to favored reporters at outlets including the Washington Post and New York Times. Sometimes such stories purport to expose an important and untold story, but more often, they thinly conceal a transparent political agenda. This is particularly true concerning leaks intended to harm Republicans, especially when they are attempting to deregulate or buck established power in some other respect.  In one notorious example, a Washington Post article citing nine anonymous sources significantly contributed to the resignation of National Security Advisor Michael Flynn just a month into Trump’s term.  

The Russia-collusion hoax was part of a torrent of hundreds of strategic and politically motivated leaks of purportedly classified information, which are inherently difficult to verify or refute.  Where a claim is proven false, the correction invariably draws less traffic than the original headline. This way, the original headlines do all the damage and fix “the narrative.”   

Subsequently, when unnamed “intelligence officials” tried to embarrass the Trump Administration during the 2020 campaign with the unproven, leaked allegation that Russians were paying bounties to have U.S. troops killed by the Taliban, then-candidate Joe Biden claimed President Trump was “unwilling to take on Putin when he’s actually paying bounties to kill American soldiers in Afghanistan.”  Several months later, Biden’s Administration walked back the claims with little fanfare. Like the Steele Dossier, the false allegation of “Russian bounties” derived its potency from its supposedly classified provenance—and seemed designed to hurt Republicans and help Democrats.  Indeed, in 2022, it was revealed that the Clinton campaign’s law firm  housed a “secure work environment” for the FBI. And, as the texts of former FBI senior counterintelligence agent Peter Strzok made clear, the national security state has been weaponized to thwart those who would challenge its power and prerogatives.  

D.  Double standard

Although security clearance adjudications are largely outside the scope of this paper, it is worth noting that the double standards regarding classification extend to the disparate treatment of officials alleged to have run afoul of the complex web of bureaucratic rules and regulations.  Several Republican national security officials experienced clearance difficulties that rarely seemed to resolve in their favor. 

By contrast, Hillary Clinton famously avoided prosecution despite sending or receiving on her private server at least “110 e-mails in 52 e-mail chains […] determined by the owning agency to contain classified information […] Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.” 

Less well known is the fact that among the subordinates with whom then-Secretary Clinton exchanged classified emails are current CIA Director William Burns and National Security Advisor Jake Sullivan—both of whom have managed to obtain and keep the highest clearances with virtually no public scrutiny.    

Among the most remarkable cases is that of former diplomat and Bill Clinton appointee Robin Raphel, who was featured in a 2017 piece “that took readers inside the rarely seen intersection of diplomacy and national security, telling the story of one woman’s professional ruin after years of service to her country.”  Her “ruin” did not include criminal charges despite inaccurately telling federal agents she did not have any classified documents in her house, claiming she “had taken the classified documents home and forgotten about them,” and sipping champagne with friends to celebrate her non-prosecution while the federal agents “tried to come to terms with the outcome.”  (Some of Raphel’s emails also ended up on Hillary Clinton’s private server.) 

In defense of Raphel, commentator Max Boot decried the “ridiculous over-classification of information in the U.S. government,” characterized taking classified documents upon retirement as something “many U.S. government officials” do, and suggested that Raphel was owed a public apology.  Unsurprisingly, Boot sang a different tune following the unprecedented August 2022 raid of Mar-a-Lago. When it comes to prominent Republicans, however, Boot is less forgiving. 

IV. Solutions

The long-term solution to the weaponization of classified information is to make the security state democratically and politically accountable.  Pending such fundamental reform, here are some practical suggestions to address the challenges detailed above:

1. Robust automatic declassification 

With respect to declassification, decisions to keep documents secret are immune from scrutiny—and 25 years rarely means 25 years. A better model for declassification than the exception-riddled EO 13526 is the President John F. Kennedy Assassination Records Collection Act of 1992, which established a board to “re-examine for release the assassination-related records that federal agencies still regarded as too sensitive to open to the public.”  The Act required the release of covered records within 25 years unless the President certifies that “postponement is made necessary by an identifiable harm” that “outweighs the public interest in disclosure.” The process is not perfect—documents continue to trickle out past the 2017 deadline—but conditioning the withholding of documents on a personal certification by the President has appropriately shifted the balance of equities towards disclosure. Some of the recent releases have been characterized as underwhelming, which suggests that robust declassification can help dispel the myth that certain documents have special significance merely because of the way they are marked.  The next Administration should consider an EO that incorporates elements of the JFK records process, including vesting non-delegable decision-making in the President and perhaps a small number of his most senior officials—including those with responsibilities outside/beyond the Intelligence Community. 

2. Empower select senior non-career officials

Recent debate has reaffirmed that the President has plenary authority to declassify information.  He should use it and delegate the same authority to Cabinet officials or develop a simple process by which they can propose information for him to declassify.  The next President should also establish a small team dedicated to mass declassification—structured to avoid bureaucratic captures.  Through such changes, politically accountable officials can seize the initiative to determine what information is in the public interest to release—and become less reactive in responding to media reports based on purported leaks.  

Additionally, Cabinet and select senior officials with national security responsibilities must be able to access universally, as a matter of course, all available information that they (not the bureaucracy) determine is relevant to their jobs.  The President should therefore direct the Director of National Intelligence to provide default access (“Super User” status) to a specified list of his appointees, including those with whole-of-government responsibilities like the White House Chief of Staff and Director of the Office of Management and Budget. 

3. Simplify the classification system 

The current three-tier system of classification is largely obsolete.  One of the most stalwart IC institutionalists, former DNI James Clapper, suggested eliminating the  “Confidential” category altogether in 2016.  Moreover, the line between “Secret” and “Top Secret” is imprecise and generally irrelevant for classification because the most sensitive information—including intelligence on sources and methods—is restricted by additional markings.  Implementing a single-tier standard would, in turn, provide a much-needed opportunity to simplify significantly—and standardize across the executive branch—existing classification guidance so that it could be understood and applied by a broad swath of government officials, including political appointees. This reform would also reduce strategic opportunities for career officials to frustrate political supervision and oversight.

V. Conclusion 

There is no conflict between reducing overclassification and protecting essential secrets, the unauthorized disclosure of which would legitimately damage national security.  Consistent and principled enforcement is essential to mitigating today’s double standard.  However, given the degree to which classification authority is a fundamental incident of the national security state’s metastasis into an unaccountable Leviathan, increasing transparency throughout the classification system must be a vital goal of any Administration or Congress committed to reviving republican principles.