Dershowitz: A Technological Solution to the Classification Problem

WASHINGTON, DC - JANUARY 25: U.S. President Joe Biden pauses while speaking after signing an executive order related to American manufacturing in the South Court Auditorium of the White House complex on January 25, 2021 in Washington, DC. President Biden signed an executive order aimed at boosting American manufacturing and …
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Classified documents have now been found among the papers of former President Donald Trump, President Joe Biden, and former Vice President Mike Pence. There is little doubt that if the offices, basements, garages and libraries of all former presidents and vice presidents were searched, more classified material would turn up.

There’s little evidence that officials who previously had access to classified material made deliberate decisions to keep them, knowing they were classified. There are exceptions, of course, such as former National Security Adviser Sandy Berger, who willfully secreted secret material in his socks, in order to help him prepare his memoir. It is far more likely that when classified material ends up in the files of former officials, it was as a result of unawareness, sloppiness, carelessness or inadvertence. But regardless of how or why such material ends up in unsecured areas, a national security threat may exist.

There may be a technological solution or amelioration to this ongoing problem. Scientists and technologists have devised methods of electronic tracking that may be applicable to classified material. I am neither an expert in classification nor technology, but simple common sense suggests that the stamp that is now placed on classified material can be made to contain an electronic tracking device that can identify and locate any such material. If that were done, it would be a simple matter for the archives’ law enforcement officials to identify classified material quickly, bearing such a stamp, by an electronic search. Such a search could be conducted of all material leaving the White House, much like searches are today conducted at clothing and other stores in which items are electronically tagged and programmed to beep if improperly removed.

Critics may point out technical fallacies with my proposal, but if we can send men to the moon….

Such a technological solution would carry several advantages. First, it would make it easier for everyone – government officials who were properly in possession of classified material, archivists who are supposed to obtain control of them, law enforcement officials investigating improper possession – to make sure that no classified material is inadvertently removed from secure places.

Second, it might well reduce the quantity of items that were originally classified, since more resources would have to be expended to electronically mark and designate classified items.

Third, classifications could be time-limited, and such limitations could be reflected in the electronic devices.

The third point, the time limitations, could be a considerable improvement to the entire process of classification. Today, an item that is marked classified remains marked classified forever. But justifications for keeping material classified change and disappear over time.

Consider for example the items found among Biden’s papers. Some of them go back to his Senate days, the remainder to his terms as vice president. It is very likely that much of their contents are now either public knowledge or no longer subject to classification. (That is why Biden would be well advised to declassify whatever material he possesses that no longer requires secrecy.)

The classification system today is broken. Far too many documents are routinely classified for political and personal reasons – to avoid embarrassment, or to deny access to political opponents – rather than for compelling reasons of national security. In an open and transparent democracy, there should be a strong presumption against classification and in favor of public access. Items once classified should be subject to periodic review and declassification. Very rarely should an item be classified forever, or even for long periods of time. Once declassified, the electronic device could be set not to beep.

One reason why so many public officials are so sloppy about how they handle material marked classified is that they understand that most of these items do not really require secrecy. Many corporations and businesses do more to protect business secrets than the government does to protect what it claims are national security secrets. The recent disclosures demonstrate how sloppy not only office holders have been, but also government officials charged with protecting our national security. We can and must do more to strike the appropriate balance between secrecy and disclosures. And we must do more to prevent the kind of inadvertent possession of classified material by former officials than we have thus far done.

So let’s stop pointing partisan fingers at the past blunders of political opponents, and let’s take preventive measures designed to avoid future problems.


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