Three Federal Appeals court judges later noted in a court ruling Sept. 21, 2022, there was no evidence that any of these documents were ever declassified.
But in a Fox News interview with Sean Hannity later that same evening, Trump said it didn't matter that there was no formal record of him having declassified the documents when he was still in office. "If you're the president of the United States you can declassify just by saying 'It's declassified.' Even by thinking about it," Trump said. "There doesn't have to be a process. There can be a process, but there doesn't have to be. You're the president, you make that decision ... I declassified everything."
Trump's assertion met skepticism by some legal and national security experts. "If the president can secretly declassify anything in his head, how does the government know that anything is Top Secret?" tweeted Citizens for Ethics and Responsibility in Government, watchdog group.
The controversy also put a spotlight on a mysterious process that many Americans may never have thought about. How does the U.S. government declassify documents containing information that originally was deemed too sensitive and critical to national security to be publicly revealed?
It's a challenge that the U.S. government — which has generated many millions of classified documents over the years — has for long grappled with. The system of deciding what documents can be declassified — and when it's safe to release them — has evolved over time. But it still generally involves a complex process, in which officials must balance the need for government transparency with caution about protecting the sources of sensitive information and preventing the inadvertent release of anything that might help enemies harm its citizens.
Experts say that declassifying documents is important for maintaining public confidence in U.S. intelligence agencies and their clandestine work to protect the nation, Larry Pfeiffer said when we spoke to him in January 2022 about a separate article on surprising revelations revealed from declassified documents. Pfeiffer is a 32-year veteran of the U.S. intelligence community and is now director of the Michael V. Hayden Center for Intelligence, Policy and International Security at George Mason University's Schar School of Policy and Government.
"Americans, by and large, are very wary of power and secrecy. And intelligence, the intelligence community, the intelligence agencies are incredibly powerful and outrageously secret," Pfeiffer said. "So over time, for the intelligence community to continue to be able to do the great work it does to protect America, it needs to have the trust of the American people. And, and so in order to obtain that trust, we need to be willing to kind of lift the skirt a little bit and show people what we're really up to."
Additionally, declassified documents are vital sources for historians who are trying to explain important events. "Such documents are windows into the inner workings of the U.S. government and national security establishment," Jon DiCicco, professor of political science and international relations, Middle Tennessee State University, says via email.
George Washington labeled some information about negotiations with Indian tribes as "confidential communications" back in 1790. The government began restricting information about Army fortifications in 1869, the first time that secrecy had been imposed in peacetime. The U.S. government amassed more secrets during World War I, including this 1918 confidential U.S. intelligence report on a German formula for invisible ink (which wasn't finally declassified until 2011).Just before World War II, President Franklin D. Roosevelt issued Executive Order 8381 to protect various types of sensitive military information.
In 1951, Roosevelt's successor, Harry S. Truman, issued Executive Order 10290, which not only set up a standardized classification system and markings for documents, but also established an orderly process for declassifying documents that were no longer deemed sensitive. It required the agency declassifying a document to notify any other agency that might have an interest in the question of whether it should remain confidential.
The U.S. presidents who followed Truman continued to tinker with the rules. In the interests of greater government transparency, President Barack Obama, issued Executive Order 13526 in 2009, which is still in force. It specifies that an agency classifying information must also set an expiration date for when the information will be automatically declassified. If no date is set, the information will be declassified in either 10 or 25 years from the date it's classified, depending on its sensitivity. The order also requires that all classified documents must be marked with both the classification level and the name of the official who originally classified it and a "concise" explanation of why it is classified.
Who Can Declassify a Document?
Under Executive Order 13526, documents also must be marked to indicate if the identity of a confidential human intelligence source would be revealed if the document is released, or if documents contain key design concepts of a weapon of mass destruction. These documents are almost always exempt from automatic declassification.
Obama's directive also designates various officials who can declassify a document, ranging from the original classifier and the person's supervisor, an official assigned to do the review by the agency, and the Director of National Intelligence or the director's principal deputy.
But the order also contains numerous exceptions. An agency head, for example, can exempt a document from automatic classification for a range of reasons, including whether it might reveal information that would "impair the effectiveness of an intelligence method currently in use, available for use or under development" or harm relations between the U.S. and a foreign government.
Can the President Declassify Anything?
The order, however, doesn't cover Presidential authority to declassify, or lay out guidelines for the procedure that presidents should follow if they want to declassify a document. The only official guidance on that seems to come from a 2020 federal appeals court decision, in which the judges noted that "declassification, even by the President, must follow established procedures." However, the normal practice seems to be that the president records the declassification decision in an official memorandum.
Even Trump, who's claimed that he could declassify documents merely by thinking about it, followed this practice Jan. 19, 2021, when he issued a memorandum declassifying certain documents related to the FBI's investigation of links between his 2016 campaign and the Russian government's efforts to interfere in the election. (Trump did accept certain redactions proposed by the FBI.)
A U.S. president is recognized as having ultimate power to classify or declassify documents, as part of the powers as commander in chief of the U.S. military in Article II, Section 2 of the U.S. Constitution, which was affirmed in a 1988 Supreme Court case, Department of the Navy v. Egan.
"Some people would argue that the President can do whatever he wants, no matter what," Mary DeRosa, who served as National Security Council Legal Adviser in the Obama administration, said at a recent panel discussion on the handling of secrets, held by the Schar School at GMU. "I think that probably overstates it a bit."
Critics of the declassification process have long contended that it still results in the government keeping too many secrets.
"There is nearly universal agreement that the existing declassification process is inadequate, to put it mildly," Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy from 1991 to 2021, says via email. "Under current policy, too much information is kept classified for too long without a valid national security justification. As a result, the historical record has gaps and blind spots, and public deliberation on current national security matters is impaired."
Aftergood cited the federal government's own Information Security Insight Office, which in a July 2022 report to President Joe Biden concluded that "the automatic declassification system as it currently exists ... is unable to meet the requirements for existing paper records and will never keep up with the tsunami of digital CNSI [Classified National Security Information] being created daily, making it likely that most of it will never be reviewed for declassification."
Aftergood says he thinks the system would be improved by changing the rules and setting an automatic "drop dead date" on classification — say, 40 or 50 years — after which older documents automatically would become available to the public, without the need for formal reclassification or even review. Imposing mandatory expiration dates for secrecy actually was considered by the Clinton administration back in the mid-1990s, Aftergood says.
There's also the question of whether presidents, who hold the ultimate authority on what should be classified and what should be released, should have more checks on their power, or at least be compelled to explain their decisions.
"Written justifications for classification can be useful in some circumstances," Aftergood says. "And the National Geospatial-Intelligence Agency, for one, has adopted such a requirement in its own classification policy. But considering that tens of millions of classifications actions are taken each year, it would not be practical to require individual written justifications in each case. "
The sheer volume of classified documents that must be evaluated for possible declassification is a problem. In 2020, the most recent year for which figures are available, agencies completed automatic declassification review of approximately 40 million pages of records by Dec. 31. But they were unable to get to another 23.6 million pages that were scheduled for release.
Now That's Interesting
Another of the GMU panelists, John Fitzpatrick, the senior director for records access and information security management in the Obama administration, noted that declassification isn't about just documents, but the pieces of information that are being declassified. "If I declassify a fact — the location that a special thing happened, or the person that did that special thing — whatever that fact is, it can exist in many forms," he says. That makes it necessary to find all the documents that contain the fact and remark them, so that government officials know what can be disclosed and differentiate it from other information that still needs to be protected.
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