If someone had told me during my FBI career that I would eventually spend five years on national television explaining the complexities of foreign counterintelligence and violent domestic terrorism, I’d have wondered “Why?” If they had said I’d be doing so because of the actions of one individual, I’d have wondered “Who?” Those questions were long ago answered. Now, since the FBI executed a search warrant at Mar-a-Lago, former President Donald Trump’s Florida home, and the supporting affidavit has been released, I’m being asked to explain the subtleties of document classification, which has many Americans asking “What?” As in, what do the government's various classification labels mean, and what is at stake if there are boxes of highly classified documents stored in an unauthorized place by an unauthorized person?
What is at stake if there are boxes of highly classified documents stored in an unauthorized place by an unauthorized person?
We’ve learned that months before the Mar-a-Lago search, in the January transfer of documents from Donald Trump’s golf resort to the National Archives, 150 classified documents were recovered. Those documents contained about 700 pages of classified information, including “special access program” data. We also know that after a subsequent recovery and the FBI search, the total number of classified documents rose to 300. After the search, FBI agents handed a list – called a “return” – to a Trump attorney, documenting the nature of the seized items. That return 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 Compartmented Information” or SCI. As if this wasn’t dramatic enough, The Washington Post reported that FBI agents during the Mar-a-Lago search were looking for nuclear secrets.
Far-right media platforms were quick to explode with criticism and describe the FBI search as unnecessary overreach and a needlessly invasive legal step. The truth, however, is that the National Archives and then the Justice Department gave too much deference to the former president, and for far too long. The search occurred after months of discussion, piecemeal recoveries of documents, an unsuccessful subpoena and a written, false assertion 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 U.S. government when it’s considered sensitive and its unauthorized release could compromise national security. News reports have mentioned the various levels of the classified materials Trump was holding onto, but what do those categories of classification mean? There are three general levels:
- Top Secret: information that would cause "exceptionally grave damage to the national security" were there an unauthorized release
- Secret: information that would, with unauthorized release, be expected to cause "serious" damage to the national security
- Confidential: information determined to have the potential to cause danger to national security through an unauthorized release.
It gets 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 compartmented intelligence derived from human sources, signals intelligence and documents marked NOFORN and ORCON. That means if those documents were compromised, the life of a spy working for the United States could be jeopardized, the location of a covert microphone in an adversary’s office could be discovered or the capability of a secret satellite could be exposed. It also means that some of the intel was tightly controlled by its originating agency (ORCON) and that some was never to be released to any foreign national (NOFORN).
The life of a spy working for America could be jeopardized, a covert microphone in an adversary’s office could be discovered or the capability of a secret satellite could be exposed.
Extensive background investigations and processes are required to get access to classified information, and detailed and varying requirements must be met to obtain and properly store those different levels of classified information.
While Top Secret is the highest of classifications, there are compartments within the Secret and Top Secret levels – like the ones described in the affidavit - that further limit the number of people granted access. Each of these Sensitive Compartmented Information (SCI) categories are distinct from one another. Having access to one of the SCI compartments requires a “need to know” and doesn’t mean you have access to other compartments.
Even having a Top Secret clearance does not automatically entitle you to see any of the SCI compartments. That’s because these much smaller subsets of classification contain the most sensitive data in our government – often because disclosure could reveal and compromise specific sources, techniques or technologies and put an end to that collection stream. Disclosure could even lead to the killing of a human source inside a foreign government.
Even more sensitive and restricted are Special Access Programs. SAPs can only be generated by a few very senior officials, including the secretaries of state and defense, or the director of national intelligence, and the related information is closely tracked and monitored to document who handled the information. In my experience, SAPs often pertain to long-term, highly sensitive research programs, or planning projects related to maintaining America’s defenses or ability to contain an adversary. It’s not unusual for a polygraph examination to be required before access to a SAP is granted and another polygraph examination after one’s need for such access has ended.
While the former president asserts that he issued a standing order to declassify anything he wanted to keep, that defense has been roundly refuted by many of his own aides. While a president certainly has the authority to declassify certain kinds of information, he must still adhere to established processes. Proper declassification would also be evident by appropriate markings on the affected documents. In other words, there would be a paper trail.
The more appropriate critique of the government is that authorities didn’t move quickly enough.
In fact, all the discussion around whether Trump did or could have declassified the recovered documents could be legally irrelevant. The three criminal offenses cited by prosecutors on the Mar-a-Lago search warrant, for which a federal judge found probable cause to have been committed, do not technically require the presence of classified material.
Again, with this much highly sensitive information, stored for well over a year at a location that doesn’t satisfy classified storage requirements, criticizing the Aug. 8 search is unwarranted. The more appropriate critique of the government is that authorities didn’t move quickly enough to protect our nation’s security against a former president who has proved he was never worthy of classified access in the first place.