Lost in the expressions of consternation, much of them legitimate, over the revelation of a smattering of classified documents at Delaware facilities of President Biden, the batch secreted at ex-President Trump’s abode in Mar-a-Lago, and now at former Vice President Pence’s place in Indiana beg a central question: Does the Government apply a secrecy classification to too much data?
Those revelations also highlight a related issue: opacity under the Minnesota “Sunshine” laws.
While there are a myriad of factual differences and disparate legal issues stemming from the disclosures of these secret sensitive federal government documents where they should not be, the incidents all seem to share the commonality that government officials may have run amuck in imposing confidentiality or similar designations on documents that ought to be subject to transparency. The incidents also raise questions about what other government officials, high placed, middle echelon or at lower levels have improperly maintained or currently are harboring classified materials.
The optics of the discovery of these documents at residences of these top officials is bad. But the opacity underlying excessive classification of documents as off-limits to public purview might even be worse.
There are, to be sure, valid reasons for screening some data from the public domain,
especially those involving national security, ongoing investigations and other sensitive matters. But it’s an ill-service to the public and officialdom as well in limiting or eviscerating accountability by shielding information about actions of interest or importance to the citizenry.
Minnesota matters
This and related matters ought to be in the forefront of the discourse concerning the disclosures of these document discoveries, especially here in Minnesota, which prides itself on its long tradition of accountability and transparency in public affairs under the Government Data Practices Act, Open Meeting Law and other measures and court rulings enhancing access.
Despite these urgings, government officials have a tendency to lean unduly in the direction of secrecy when confronted with requests under the Data Practices Law, which governs access and confidentiality of public documents. The same is true of requested access to meetings of public bodies, which are required to be open to the public, subject to some limited and understandable exceptions that are supposed to be construed narrowly but in reality, tend to be treated expansively by secrecy-conscious officials.
One impediment to enforcement of these “sunshine” measures, which generally falls to private parties hiring lawyers, is the restriction on recovery of attorney fees for parties pursuing access claims under either statute or, as is often the case, both of them in the same matter. The courts in Minnesota, spearheaded by the Supreme Court, have ruled that granting legal fees to prevailing litigants under the Data Practices Act is a matter of discretion with trial court judges, who usually err on the side of minimization, despite the statutory provision mandating that such fees “shall” be granted.
[image_caption]Marshall H. Tanick[/image_caption]
This lamentation over restrictions on legal fees under the state’s two sunshine laws is not an expression of sympathy for attorneys, but a recognition that it can be difficult for potential claimants to hire lawyers challenge obstructive governmental practices that tend to blot the sunshine if competent attorneys feel they will not be compensated fairly – or at all – for their efforts.
But these ruminations aside, the issue of over-classification of government data and excessive secrecy in treatment of governmental matters at federal, state and local ought not be buried beneath the valid concerns of criminality, carelessness, or other culpability relating to the Trump-Biden-Pence-whomever documents disclosures.
Marshall H. Tanick is a Twin Cities constitutional law attorney.
-My own view is that meetings with elected officials and their staffs with lobbyists should be televised by C-Span.
The practice of “classifying” embarrassing or uncomfortable information that has no real bearing on “intelligence” or security has long been a travesty. At the very least the “classification” process has been a mechanism to obscure or hide outright criminal activity within a number of criminal US regimes over the decades. Good luck change THAT.
Early in his presidency, the anti-establishment Donald Trump once allegedly uttered “everything should be declassified.” Like most things, his view was correct … it’s only his language that was exaggerated. The rumor is, he wanted to release the JFK files and the UFO reports to the public but the Pentagon stonewalled him and pretty much stopped sharing much of anything with him after that, including the Chinese spy balloons that allegedly breached our air space while he was in office. But I digress. Politicians and bureaucrats have this need to feel one step elevated above the American people and holding “secrets” that only they are authorized to know is one way that’s manifested.
After my tour of duty aboard the USS Patrick Henry, I didn’t have enough time left to transfer to another boat so they assigned me to Subase New London until my discharge a year later. Because I had a Top Secret clearance, my role was to work in the communications center and to occasionally serve as an armed courier to hand-deliver pouches of classified material to various military installations on the East coast.
In the comm center, one of my tasks was to stand at the incoming printer as messages came in addressed to various entities on the sub base including ships tied up at the pier, rip them off the printer, read them, and stamp them with the appropriate classification (Confidential, Secret, or Top Secret) and rout them to other people in the center who would add their initials signifying that they had been “officially” handled.
I’m not here to claim that the admiral’s golf score was designated as classified information, or that a submarine’s lunch menu was Top Secret, but no one would have noticed if it was. We were desensitized to it. I know of a fellow who was prosecuted and sent to prison for a selfie he took aboard a submarine and sent home to his girlfriend. He apparently was standing in front of some sensitive equipment. I’ve got to tell you, the Patrick Henry Facebook page has a ton of photos of crew members in all sorts of settings aboard the boat. Maybe the Chinese don’t view Facebook, I don’t know. The most innocuous, mundane, day-to-day stuff was classified when it didn’t need to be … certainly if we believe we live in a free society where the people have a right to know what their government is up to. On the sub base, ship movements and missile loading details were classified as Top Secret, but that makes sense. Other than that, it’s a judgement call.
In my experience, most of classified information was designated as such to make the bureaucrat or military officer feel important. In my view, if it doesn’t directly affect national security or someone’s personal data, the public has the right to know. Including Ike’s deal with the aliens (just kidding).
“I’m not here to claim that the admiral’s golf score was designated as classified information, or that a submarine’s lunch menu was Top Secret, but no one would have noticed if it was.”
I don’t know if the British have changed the law, but in the not-too-distant past the menu in the House of Commons dining room was classified. One could go to prison for telling the public that the Honorable Gentlemen used Tabasco sauce.
“In my experience, most of classified information was designated as such to make the bureaucrat or military officer feel important.”
There is also the interest in shielding officials from embarrassment. Remember the Pentagon Papers? The Department of Defense had to commission a study some years after the fact to remind itself why we were in Vietnam. That sounds like something the public had the right to know about.
“In my view, if it doesn’t directly affect national security or someone’s personal data, the public has the right to know. Including Ike’s deal with the aliens (just kidding).”
Nothing to kid about. That secret deal explains so much.
Fat Leonard kept his high-level secrecy intact, despite dealing with the front-line intelligence admirals of the 7th fleet.
I wonder how much was stolen from the Navy by corruption?
I think they caught him twice.
The best example I have recently heard is the itinerary of a US official on a foreign trip: Absolute security is needed before the trip, once over, everyone knows the itinerary and it should lose it’s security classification.
I’m betting that much of Pence’s violations are along these lines. Just as I’ll bet Trump kept things like nuclear secrets just because he thought they were a neat souvenir. As he told his Mara Lago staff:
“They’re not theirs, they’re mine!”
The fact is, there is too much secrecy in our politics but little of it that matters has to do with the classification of documents. I mean, what would I do with the nuclear codes if someone managed to text them to me?
During the election season, and it is almost always election season these days, I am often amazed at how closed off our system is. All these ads, some of them even grainy and in black and wife despite the fact that we live in a technologically advanced era. Who funds them? Who makes them? How do they make their way to the TV I paid for? Once elected, many congress people simply disappear. Instead of being interviewed on a daily basis, they hardly appear in media at all. In this publication I often see articles from which it seems to appear that the elected official they talk about was not interviewed at all, let alone on the record. Meanwhile, they draw six figure incomes, paid by taxpayers, and not whatever political party they seem to owe allegiance to.
Nuclear launch codes are changed daily so even if you tried to sell them they’d be worthless.
Sun Tzu on secret Agents: “What is called “foreknowledge” cannot be elicited from spirits nor from gods, nor by analogy of past events, nor from calculations. It must be from men who know the enemy situation. We don’t know what we don’t know. Perhaps knowing the food meal schedule would allow a foreign agent to poison the food? Not being schooled in intelligence/counter intelligence makes it difficult to name what should be vs. what shouldn’t be, nor do we know where the counter intelligence gets a benefit by allowing the gathering of intelligence by an adversary. Anyone remember the Imitation game?