January 28, 2023

NPR’s Ailsa Chang talks to Oona Hathaway, law professor and former special counsel at the Pentagon, about overclassification of government documents.



AILSA CHANG, HOST:

President Biden says he is cooperating fully and completely with an investigation into how classified documents ended up in his personal storage. Former President Trump also remains under federal investigation for the top-secret materials found at his Mar-a-Lago home. Now, these cases are different from each other, but both have put new scrutiny on just how the government classifies documents.

Oona Hathaway has written about this for Foreign Affairs magazine. She’s a professor of law at Yale Law School and former special counsel at the Pentagon. Welcome.

OONA HATHAWAY: Thank you for having me.

CHANG: So you’ve noted that a lot of government officials whose job it is to keep government secrets secret have admitted to you that the current system leads to mass overclassification. Can you just start by explaining why so many documents – and we’re talking about tens of millions of documents per year – why so many end up getting classified?

HATHAWAY: That’s exactly right. So there’s somewhere in the order of over 50 million documents classified every year. We don’t know the exact number because even the government can’t keep track of it all. So we don’t have excellent data. But the last time the government tried to count, it counted about 50 million classified documents.

And, you know, the reason for all of these documents is that there’s just really no incentive. You know, if you’re a person sitting at a desk and you’re making a decision about whether to classify something or not, if you classify it, there are generally no ramifications if you’ve classified something that didn’t really need to be classified. But if you make it unclassified and it really should have been classified, you potentially could get in a lot of trouble. And that’s part of the reason we end up where we are.

CHANG: In what ways might overclassification of government documents be a problem? Like, why should we as citizens care about too many documents getting the classification designation?

HATHAWAY: There are a lot of reasons we should care. Probably the first one is that, when a document is classified, it means that people in government who have access to that information really can’t talk about it. And so it makes it very difficult for the American people to know what their government is doing when that information is classified. It also creates all kinds of problems for reporters because when reporters get access to that information, it potentially makes them vulnerable to prosecution for violation of the Espionage Act. So it creates a lot of problems for democracy and for transparency of our government.

CHANG: So to reiterate, the Biden and Trump cases around classified documents are different in scope and in circumstances. But, again, both of those cases have raised this new scrutiny about this whole classification system. Is the criticism about overclassification a fair criticism when it comes to either Trump’s case or Biden’s case?

HATHAWAY: Well, it’s hard to know exactly what’s happening with the Biden administration because we haven’t seen those documents. The fact that they’re mixed in with a lot of documents that were not classified is suggestive that they were sort of part of a set of files where classified information kind of got snuck in. But, again, we don’t have a lot of information.

We do have a little bit more information about the materials that were retained by President Trump when he left. We have a photo of the sort of files on the floor.

CHANG: Right.

HATHAWAY: And you can see if you look at those pictures that many of those documents were what’s called top-secret SCI, which is special compartmented information. And, I mean, this is the kind of information that is the most likely to do damage to the U.S. government. Again, without seeing the actual documents, hard to say with certainty, but these are the classifications that are reserved for the material that is the most highly protected set of secrets the U.S. government has.

CHANG: So I understand that the current rule is that all classified records can be declassified after 25 years. But I know that you think that time frame should be 10 years with very few exceptions. What else could be done to reform this classification process?

HATHAWAY: We really need to think about how to create incentives for people who are making a decision about whether to classify a document to think, maybe I should think twice before ramping this up to the highest level of classification that I can. We have technology now that can help with these decisions, and we could be doing much more when it comes to actually pushing that information back out that no longer needs to be kept classified.

CHANG: Oona Hathaway, former special counsel at the Pentagon. Thank you very much for joining us.

HATHAWAY: Thank you so much for having me.

Copyright © 2023 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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