For the better part of a decade, I worked as a cryptanalyst for the National Security Agency (NSA). In that position, I handled highly classified documents on a daily basis. All of the people I worked with took the responsibility of dealing with classified information seriously, and if they hadn’t, the consequences would have been severe.
For example, in one case, a retired former employee decided to write a book about the Cuban Missile Crisis. In his draft book, he mentioned some information that he had learned through his work in the intelligence community and, apparently, he assumed that it had been declassified.
This person’s home was raided, his computer confiscated, and he was charged with a crime, in spite of the fact that any classified information that he might have revealed would have been almost four decades old at the time.
On the other hand, politicians have rarely, if ever, had anything to fear from revealing highly classified information. But before we get to an example of that, we need a little bit of background.
A classification applies to a document, while a person has a clearance. The U.S. government has four levels of classification; namely, Top Secret (TS), Secret, Confidential, and Unclassified. There is also the designation For Official Use Only, which, confusingly, is technically equivalent to Unclassified.
A person with a Top Secret clearance can see documents at any level, while a person with a Secret clearance can only see documents at the Secret, Confidential, and (of course) Unclassified levels, and so on. Regardless of their clearance, people are only supposed to be able to access information that they need to know in order to do their jobs.
To enforce this “need to know” principle, classified information can be further compartmentalized—so-called Sensitive Compartmented Information (SCI). The most sensitive information involves sources and methods and is invariably classified as Top Secret and is held in compartments that severely restrict access, even among those with the highest level TS/SCI clearances. TS/SCI is the type of information that could do grave harm—up to and including getting people killed—if it is released.
U.S. senators and many congressmen have regular access to classified information. It’s no secret that politicians and their staff are a major source of leaks, and that such leaks are often designed to gain political advantage. Occasionally, some feeble attempt is made to try to stop—or at least reduce—these leaks, but such efforts are not serious, at least in comparison to the consequences that non-politicians face for similar actions.
This brings me to one of my least favorite examples of a politician mishandling classified information. Bob Kerrey was a Navy SEAL and is a highly decorated Vietnam War veteran. He was governor of Nebraska in the 1980s and a U.S. senator from Nebraska from 1989 to 2001. In 1992 he was on Bill Clinton’s short list of vice presidential candidates. In 2003, Kerrey was selected as a member of the 9/11 Commission, which was to investigate “all aspects” of the terrorist attack of Sept. 11, 2001.
In April 2004, at a public meeting of the 9/11 Commission, Kerrey said, “We’re in the mood to declassify stuff,” and proceeded to read from a classified memo that had circulated in the early days of the Bush Administration. This memo discussed a strategy for supposedly mitigating the threat posed by Al Qaeda.
Kerrey then added, “In the spirit of further declassification,” and read from another highly classified document, which stated that the FBI had detected “patterns of suspicious activity in the United States consistent with preparations for hijacking.”
A New York Times article of April 10, 2004 on this topic states, “Mr. Kerrey does not have the authority to declassify information, but no one has suggested that he violated any rules.” This same article quotes President Bush’s press secretary as saying that the information revealed by Kerrey came from the president’s daily briefing, which, in his opinion, was “the most highly sensitized classified document in the government.”
Interestingly, the article goes on to suggest that Kerrey’s unilateral decision to declassify this information was no big deal, and it further claims that information held by the government is overclassified anyway, leaving the distinct impression that the more that is declassified (by any means), the better.
I’m no lawyer, and I don’t even play one on TV, but I have a hard time seeing how Trump can be convicted of a crime that any number of politicians—even retired politicians such as Bob Kerrey—have also committed. For example, how can it be that Trump waving a classified document in front of a reporter’s nose is worse than Kerrey reading from, arguably, “the most highly sensitized classified document in the government” at a public session of the 9/11 Commission?
I have serious doubts that Trump had any compartmented (SCI) information in his possession. But if so, the raid to recover the information may have been justified. However, even if such is the case, I find it hard to believe that Trump could be convicted of a crime, given the Bob Kerrey precedent (among many, many others).
Finally, I want to emphasize that I’m not condoning Trump’s actions or the action of any politician who reveals classified information. Personally, I find it appalling that there is one set of rules for ordinary people and an entirely different set of rules for the political class, at least when it comes to handling the nation’s most sensitive information.
Nevertheless, this unequal application of the law has always prevailed, and likely always will. This suggests to me that the case against Trump is more about keeping him in the spotlight than any newfound seriousness concerning politicians mishandling classified information.
