close

OP-ED: Mishandled classified documents cause an uproar

5 min read

A week is a long time in politics.

Democrats – including this commentator – went from criticizing Republicans for taking five days to elect a speaker of the House to initially defending President Biden for retaining classified documents in his office and home. In truth, Biden’s lack of care and remorse in mishandling classified documents is troubling. Moreover, the lack of transparency when Biden attorneys discovered the documents in November 2022, then failed to publicly reveal the unauthorized possession for two months, raises further questions.

The law on unauthorized retention of classified documents is clear:

“Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.” 18 U.S. Code § 1924

At a minimum, both President Joe Biden and former President Donald Trump appear to have been irresponsible. The key question for finding criminal culpability is whether either knowingly removed the documents and intended to retain such documents.

U.S. Attorney General Merrick Garland correctly recognized that while the situations were different, both cases required the appointment of a special counsel to investigate. The question is how and why classified information was stored in unauthorized locations. Even Jimmy Kimmel, a liberal, realized the dilemma on late night TV: “We can’t hold Trump accountable for leaving documents around and not Biden….It’s alarming when you realize how much of our national security relies on old men keeping track of loose papers.”

Within months, the classified document disclosures have cursed the houses of both Republicans and Democrats and presented some interesting questions. How can elected officials not put partisan politics aside and treat this breach of national security as a serious, nonsectarian issue? Why is this not an opportunity to realize that presidential staffs of both political parties have mishandled classified documents and that this problem urgently needs to be addressed? How many senior officials in previous White House administrations retained classified documents that were never discovered? Why are our local libraries more adept at retrieving overdue books than the National Archives in keeping track of classified documents?

Unfortunately, there is nothing new in emotionally charged political advisers slanting or altering obvious facts to favor a political position or elected official. Studies have shown that even with independent scientists, results are influenced by the choices they make when they analyze the same set of facts.

For example, in one experiment, 29 scientific teams were given identical documented facts about soccer games. Each team was asked to answer one question, “Are dark-skinned players more likely to be given red card penalties than light-skinned ones?” The conclusions of the different teams were inconsistent because of latent biases within each team.

Much more pronounced are the self-confirming biases at work when partisan political players are presented with the same sets of facts. Accordingly, the public must endure spokespersons for Trump and Biden attacking the other’s conduct while asserting that their own boss is free from guilt.

Trump’s conduct in obstructing justice and in refusing to return classified documents are correctly being treated as separate questions of criminal liability. So far, there is no evidence of intentional wrongdoing by Biden. However, both situations require a formal investigation to determine what initially went wrong in removing and storing the documents.

Why did the appropriate agencies not know about the missing classified documents? Under the present “honor” system, the National Archives is not aware that such documents exist until they are turned over by an outgoing presidential administration. There is no cataloging of classified documents within the White House. Security agencies that create and classify the documents have no monitoring system after their work is forwarded to the White House.

In Trump’s case, the National Archives knew documents were missing only because he boasted about them or showed them to third parties who then notified the Archives. Trump’s famous letter to North Korean dictator Kim Jong Un is an example. In the case of then-Vice President Biden, the Obama administration generated tens of millions pages of documents and emails, which are still being sorted and cataloged. Without the self-reporting of Biden’s attorneys, his retention of classified documents would not have been known.

At a minimum, Congress should consider passing a law that requires outgoing presidents to sign a certification that “all presidential records and classified materials have been surrendered, not copied or transferred to a third party.” In addition, each White House administration should be mandated to implement a “sign-in, sign-out” system that carefully documents the location of all classified material.

The overwhelming volume of classified documents adds to the monitoring problem. Many security experts believe that entirely too much national security information is marked classified and too little timely declassified. For years, officials have stamped documents “secret” in a system that does not penalize over-classification and makes declassification difficult and time-consuming.

The process for supervising classified documents is archaic and requires reform. Rather than balking at taking any responsibility, President Biden should lead reform efforts to implement management procedures that ensure classified documents do not end up in garages or closets.

Gary Stout is a Washington attorney.

CUSTOMER LOGIN

If you have an account and are registered for online access, sign in with your email address and password below.

NEW CUSTOMERS/UNREGISTERED ACCOUNTS

Never been a subscriber and want to subscribe, click the Subscribe button below.

Starting at $3.75/week.

Subscribe Today