What do the labels on classified documents mean? Does Trump have a defense?
If someone had told me during my FBI career that I would end up spending five years on national television explaining the intricacies of foreign counterintelligence and violent domestic terrorism, I would have wondered, “Why? If they had said that I would do it because of the actions of an individual, I would have wondered “Who?” These questions have long been answered. Now since the FBI executed a search warrant at Mar-a-Lago, the Florida residence of former President Donald Trump, and supporting affidavit was published, I am asked to explain the intricacies of document classification, causing many Americans to ask “What?” As in, what do the different government classification labels mean and what are the stakes if there are boxes of highly classified documents stored in an unauthorized location by an unauthorized person?
What is the stake if there are boxes of highly classified documents stored in an unauthorized place by an unauthorized person?
We learned that months before the Mar-a-Lago raid, during the January transfer of documents from Donald Trump’s golf resort to the National Archives, 150 classified documents have been recovered. These documents contained approximately 700 pages classified information, including “special access program” The data. We also know that after a subsequent retrieval and search by the FBI, the total number of classified documents rose to 300. After the search, FBI agents gave a list – called a “return” – to a lawyer for Trump, documenting the nature of the documents seized. elements. This comeback revealed seizure of four sets of Top Secret documents, three sets of Secret documents and three sets of Confidential documents. Importantly, FBI agents noted that they found documents marked “Sensitive Information Compartmented” or SCI. As if that wasn’t dramatic enough, The Washington Post reported that the FBI agents during the Mar-a-Lago raid were looking for nuclear secrets.
Far-right media platforms were quick to explode with critical and portray the FBI’s search as an unnecessary overbreadth and an unnecessarily invasive legal step. The truth, however, is that the National Archives and then the Department of Justice gave too much deference to the former president, and for far too long. The search came after months of discussions, piecemeal document retrievals, an unsuccessful subpoena and a false written claim by a Trump lawyer that all classified documents had been turned over.
Information, including but not limited to documents and photos, is classified by the US government when it is considered sensitive and its unauthorized release could jeopardize national security. News reports mentioned the different levels of classified documents that Trump was holding onto, but what are these? classification categories mean? There are three general levels:
- Top Secret: information that would cause “exceptionally serious harm to national security” if released without authorization
- Secret: information which, if not disclosed without authorization, could cause “serious” damage to national security
- Confidential: information deemed likely to endanger national security in the event of unauthorized dissemination.
It’s getting worse. The unsealed and heavily redacted affidavit, submitted to a federal judge to justify the search warrant, revealed that some of the 184 classified documents previously recovered from Mar-a-Lago included compartmentalized intelligence from human sources, signals intelligence, and documents marked NOFORN and ORCON. This means that if these documents were compromised, the life of a spy working for the United States could be compromised, the location of a secret microphone in an adversary’s office could be discovered, or the ability of a satellite secret could be revealed. It also means that some of the information was tightly controlled by his originating agency (ORCON) and some of it was never to be disclosed to a foreign national (NOFORN).
The life of a spy working for America could be compromised, a secret microphone in an adversary’s office could be discovered, or the capability of a secret satellite could be revealed.
Extensive investigations and extensive processes are required to access classified information, and detailed and varying requirements must be met to properly obtain and store these varying levels of classified information.
Although Top Secret is the highest classification, there are compartments within the Secret and Top Secret levels – such as those described in the affidavit – which further limit the number of people allowed access. Each of these Sensitive Compartmented Information (SCI) categories are distinct from each other. Having access to one of the SCI compartments requires a “need to know” and does not mean that you have access to other compartments.
Even having Top Secret clearance does not automatically give you the right to see any of the SCI compartments. Indeed, these much smaller classification subsets contain our government’s most sensitive data – often because disclosure could expose and compromise specific sources, techniques or technologies and end that collection stream. Disclosure could even lead to the murder of a human source in a foreign government.
Even more sensitive and restricted are Special Access Programs. SAPs can only be generated by a few very senior officials, including Secretaries of State and Defense, or the Director of National Intelligence, and related information is closely tracked and monitored to document who processed the information. In my experience, SAPs often relate to long-term, highly sensitive research programs, or planning projects related to maintaining US defenses or the ability to contain an adversary. It is not uncommon for a polygraph examination to be required before access to an SAP is granted and another polygraph examination after the need for such access has ended.
While the former president claims he issued a standing order to declassify anything he wanted to keep, that defense was roundly refuted by several of his own assistants. While a president certainly has the authority to declassify certain types of information, it must still follow established processes. Appropriate declassification would also be evidenced by appropriate markings on the relevant documents. In other words, there would be a paper trail.
The most appropriate criticism of the government is that the authorities did not act quickly enough.
In fact, the whole discussion of whether Trump did or could have declassified the recovered documents might be legally irrelevant. The three criminal offenses cited by prosecutors on the Mar-a-Lago search warrant, which a federal judge found probable cause to have occurred, do not technically require the presence of classified material.
Again, with this highly sensitive information, stored for over a year in a location that does not meet classification criteria storage requirements, criticizing the August 8 search is unjustified. The most appropriate criticism of the government is that the authorities didn’t move fast enough to protect our nation’s security against a former president who has proven himself never worthy of classified access in the first place.