Wrongful classification far worse than mishandlings exhibited by Trump and Biden
Statute needed to terminate federal employment for frustrating transparency
The mishandlings of classified information by former President Donald Trump and President Joe Biden commonly implicate the federal criminal prohibition on unauthorized removal and retention under 18 U.S.C. 1924 (a): “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.”
But no harm to the United States has yet surfaced, or is likely to surface caused by Trump or Biden. No surprise. The vast majority of classified information is misclassified, i.e., their disclosures would not cause any harm to the national security or foreign policy of the United States.
The massive disclosures of classified information by Edward Snowden or Chelsea Manning have not been shown to have compromised the national security or thrown a wrench into foreign policy. Erwin Griswold, who argued the Pentagon Papers case for the United States as solicitor general in the United States Supreme Court, later wrote that he has "never seen any trace of a threat to national security" since the papers became public. Dean Griswold added that there is "massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another."
The Moynihan Commission on Protecting and Reducing Government Secrecy corroborated stupendous overclassification that gives birth to far more injuries than it prevents. The Cuban Missile Crisis, for example, would never have eventuated if the Kennedy Administration’s amateurish Bay of Pigs caper against Fidel Castro had been exposed to sunlight before the calamity unfolded. A staggering 15-20 million documents are classified annually.
The Executive Branch recognizes the overclassification epidemic by selective leaks to favored journalists that are misleading or distortions in telling only one-half the story. Overclassification is customarily used to deceive Congress and the American people, not to protect genuine secrets like troop locations.
Classification undermines the elemental principle that transparency is the coin of the realm and the bedrock of government by the consent of the governed. Citizens cannot consent to what they do not know is happening. Further, the bright lamp of experience shows that sunshine is the best of disinfectants; the electric lamp the most efficient policeman.
Despite the alarming evils of overclassification, there are no sanctions for the misbehavior. No federal official has ever been disciplined for unwarranted secrecy. And Congress has refrained from statutory penalties or punishment. This must end.
Federal officials or employees should be automatically terminated for wrongful classification. An administrative tribunal should be established to adjudicate such disputes. Every American citizen should have standing to initiate such proceedings. The burden of proof should lie with the official or employment to show the classification at issue was correct.
This draconian sanction is intended to have a chilling effect on their willingness to classify information. It is far better for the nation and our system of self-government that citizens have access to more rather than less information to deter lawlessness and misadventures. As James Madison advised, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”