Podcast: How to fix the US government's classified information problem with Jane Harman

TRANSCRIPT: How to fix the US government's classified information problem with Jane Harman

Jane Harman:

We still have the problem of over-classification in the government, which does not excuse anybody from taking documents marked "classified" to put in boxes or show to friends.

Ian Bremmer:

Hello and welcome to the GZERO World Podcast. This is where you'll find extended versions of my interviews on public television. I'm Ian Bremmer, and today we are talking about America's secrets. Critics of the US government's classification system, from Daniel Ellsberg to my guest today, warn of big dangers to come if we don't fix the system and soon. Here to discuss all things classified, including those documents in Biden's garage, not to mention those in Trump's bathroom, is former Congresswoman Jane Harman. She served in Congress for nine terms and was the ranking member of the House Intelligence Committee after 9/11. In other words, Jane knows a secret or two. Here's our conversation.

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The GZERO World Podcast is brought to you by our lead sponsor, Prologis. Prologis helps businesses across the globe scale their supply chains with an expansive portfolio of logistics real estate, and the only end-to-end solutions platform addressing the critical initiatives of global logistics today. Learn more at prologis.com.

Ian Bremmer:

Jane Harman, welcome back to GZERO World.

Jane Harman:

Happy to be back.

Ian Bremmer:

So I want to talk about classification. There's so much in the news about all these people, including the former president, doing things that may well be illegal. But you've been involved with this topic for a long time. I wanted to ask you first, go back to 9/11, and you were very concerned about information sharing in the government coming off of the 9/11 commission. Tell me what it was that you found so alarming.

Jane Harman:

Well, if we could just back up a little more, when I became a member of Congress in the nineties, like every other member of Congress, I was told about the classification rules. And when I became a member of the House Intelligence Committee in 1997, which is a coveted leadership committee and I served on that for eight years, I had to sign something that said I would never take classified material out of rooms or share or anything. And I took that very seriously. I was a member of the "gang of eight," the so-called "gang of eight." That's the four leaders of Congress and the chairs and ranking members of the intelligence committees. And we were briefed on really serious stuff. So just saying, most members of Congress, in fact, I can't think of a violation at the moment, really honor this pledge and it does apply elsewhere.

Okay. After 9/11, I became the chair of the intelligence subcommittee of the Homeland Security Committee. And what we were worried about was that over-classification would prevent the federal government from sharing crucial information with law enforcement. That's what that was about. And for example, in one case there was information there could be a ricin attack, which is deadly, in Las Vegas. And getting this information to cops on the beat was just about impossible, and describing what ricin is to them was impossible.

Well, the problem is that there are good reasons to classify documents to protect sources and methods. If somebody found out information in a surreptitious way, let's imagine a CIA operative inside Russia, and the fact that that happened or even the name of that person is disclosed, that person is likely to be pushed out of a window. So we don't want to reveal the sources, even technical sources, satellites and where they might be located that lead us to find important information about the motives and intentions of our adversaries or other reasons like that. That's a good reason to classify.

A bad reason to classify is to protect your turf. You don't want other people to know what you know or to protect yourself from embarrassment, meaning you screwed up and you don't want people to know that happened. That is not a justification to classify and yet people do it all over the government, and there are multiple classification systems, and that prevents us from curing the problem we faced on 9/11, which was when the need to know trumped the need to share. And we had information about these hijackers, we knew that there were people training on airlines. We had some other information about... we had an FBI informant in San Diego, and yet that information was not put together in the FBI and in the government to lead us to know that there was possibly a plot inside the United States involving airplanes. So I authored legislation a bit later, but we still have the problem of over-classification in the government, which does not excuse anybody from taking documents marked classified to put in boxes or show to friends.

Ian Bremmer:

I understand that, but what I'm hearing, and I have been surprised to learn about just how much information gets classified, is that a lot of classified documents do not contain any sensitive information. How is that? I'm sure that our audience is not aware of that, so how is that possible?

Jane Harman:

Well, I don't think that is technically the case. People who classify documents claim to have a reason to do it. The only good reason to classify documents is to protect our sources and methods, how we got information. One of the problems among many is that there is not so-called "portion marking." So if you have a document, I'm writing you a document and it's about hot dogs, but in there it says that Vladimir Putin has some kind of a lock that's illegal on the hot dog market, what should happen with that document is the general description of hot dogs should just be available and that one portion that says something about Putin doing something nefarious that is a secret that we don't want people to know should be classified. That's called "portion marking." And when I introduced a legislation which actually became law, imagine that, law passed on a bipartisan basis in 2010 just before I left Congress, I required that we do portion marking.

I also said that we ought to train people on classifying material, your point, so they don't over-classify, and that the operating word was sharing information, not embargoing information so that we would reduce how much classification we have in government. The other problem we have is that agencies have different classification systems. If you're reading, I'm not sure this is still true, a DOD document, it may not have the same classification as a, pick another place, CIA document. I'm quite sure that's been corrected, but maybe not as a Homeland Security document, and that's another problem.

Ian Bremmer:

So if we have an over-classification problem in the US, do we also have an over-clearance problem in the US? I know that millions of Americans, either full-time employees or consultants to various parts of the US government, have some level of clearance, of security clearance, which means they have access to some level of over-classified information. What do we think about that process, Jane?

Jane Harman:

Well, it's kind of circular. We over-classify, so yes, we over-clear. Our clearance process is very cumbersome. And for example, in the early 2000s when we were in Afghanistan and Iraq, I was very much in favor of getting language speakers who spoke dialogues to read some of the information we were getting through so-called technical means. That means non-humans. Or humans, because they would understand better what the words meant than would somebody who studied Arabic at Harvard University, unless that person were native. Problem, couldn't clear those people because they had a grandma in Baghdad and everyone was afraid that they would be some form of blackmail against them.

So what I argued we needed was a tiered classification system where you can clear people only up to a certain amount. In other words, some person who speaks a regional dialect could be given papers to read but not told the context of the papers so that person would just translate the language, and then somebody with a higher classification level could put that together. But it's complicated. I still have a classification. I am a TSSCI, top secret, I think it's secret compartmented information classification, which I got when I was on the advisory boards to the DNI and the CIA, and which I'm using in my role on this commission on the national defense strategy.

Ian Bremmer:

So of the classified briefings and documents that you are now exposed to with that clearance that you need to have to do the job to provide the advisory work that you do, what percentage of those today would you say in your view actually needs to be classified?

Jane Harman:

I don't know the answer to that. I don't think all of it needs to be classified. I totally agree.

Ian Bremmer:

But is it closer to 90 or is it closer to 10?

Jane Harman:

What's interesting is-

Ian Bremmer:

It's not 10?

Jane Harman:

... a lot of the documents have unclassified summaries of various kinds. For example, our intelligence documents have an NIE, a National Intelligence Estimate, that's what they're called, has a declassified summary. And you read the summary, then you read the document and then you compare them, which is I guess a fun parlor game or something, which I do. And you see that a lot of what's in the classified document actually can be explained to the public. So I guess this is making your point that if you're careful, a lot of what's so-called classified doesn't have to be.

Ian Bremmer:

I guess let me ask the question in a slightly more direct way. Do you think that you could do your job equally well without a clearance?

Jane Harman:

No. I just had a series of briefings in this role that I now have on threats, especially the China threat, and there was information in that briefing that I don't think I could get from open sources. And I think having that information makes me better informed to help make the decisions for this commission. And I believe we will write an unclassified report. I think it will probably have a few classified annexes, and I promise you I will be very careful about not recommending that we over-classify information.

Ian Bremmer:

So let's talk about some of these cases right now. So there are a lot of people that have mishandled classified information. I'm thinking back to when you were in Congress. Sandy Berger, former national security advisor, actually smuggled classified documents out of a skiff in his underwear. On a scale of one to 10, how embarrassing was that?

Jane Harman:

It was very embarrassing. 10. On a scale of whether he did something egregious, it would be lower. He was at the National Security Agency as I remember it, and he put the documents in his socks. That's not quite underwear. Yes, he was a law school friend and it was a tragic mistake. Why he did that, at least what he said was, he was doing research on these documents and he wanted to finish the research at home because he didn't want to sit in the archives. That's where he was for a long time, so that's what he did and it was careless and he paid a huge price for that.

Ian Bremmer:

This happens a lot, right? We found out that Pence had documents that he shouldn't have. Biden has documents he shouldn't have. All sorts of Cabinet secretaries. The fact that it happens so often tends to minimize the way the public considers it when it can be serious. What can be done to explain that away?

Jane Harman:

I think we should be much clearer about how presidents and ex-presidents and vice presidents, how they can transfer documents for personal use and what documents, and there ought to be some kind of a minder, sadly, to go through papers to make sure that no classified materials are part of boxes of papers. What happened as I understand it in the Pence and Biden cases is it was just sloppy. They didn't read the documents, they were found, and when they were found, they were turned back. In the Trump case, again, reportedly, allegedly, the stuff according to him was mixed up in his golf clothes, and so that seems a bit more deliberate. And there are again allegations that he intentionally took those documents out of boxes and waved them around in order to impress people at his golf clubs.

Ian Bremmer:

Now, he was president of the United States, and as such, and we've heard on many occasions that the president has the ability to declassify classified documents. Now, there's no evidence that he did so, but if he could have done so, then in principle a mountain is being made of a molehill, or is that not true?

Jane Harman:

I think that's not true. I think if you believe, and I do, that there are important reasons to classify documents, just declassifying them at whim, if you have the power, is really bad practice. The problem has been that we don't have clear rules. I think, if Congress can possibly work together, that there might be agreement in the future on what good rules could look like and red lines around what you can do in terms of declassifying. I think at a minimum you have to make a record in some form that you are declassifying some list of documents. Trump did not do that. He said he thought about it in his mind. And in this recording that has just come out of him talking about some material on Iran, he basically says after he has left the White House that he does not have authority to declassify it, so that rule is pretty well understood.

Ian Bremmer:

Now, I can imagine that a president has some documents that, yes, have national security relevance, but they're also important documents for them individually. So I'm thinking specifically here about, for example, the letters that were exchanged between Kim Jong-Un and Trump. And I can see how someone like Trump would just want to keep that letter. Is that the kind of thing that you think is a reasonable thing for someone like a former president to want to still have?

Jane Harman:

Well, I don't think it's unreasonable, but I think there ought to be a process to allow him to have that letter and there ought to be a review by the archives and by the appropriate security agency to make sure that, making that letter public... I don't think it's been made public yet. At least I don't know what's in that letter other than it's been described as a love letter. But there ought to be some process to make sure nothing else is revealed. Let's just imagine Kim Jong-un says, "Dear Trump, I love you very much. And oh by the way, I have 37 nuclear weapons and they're located here, there and somewhere. And because I trust you, I'm telling you this." I don't think that would be optimum to have on the front page of pick a paper.

Ian Bremmer:

Leaving aside the ongoing 37 counts against Trump on these classification issues, which are the former American officials who have had the most serious charges of mishandling classified documents in your view and why?

Jane Harman:

Well, Daniel Ellsberg just died and reading his obits, I've learned more about him than I knew. He graduated third in his class at Harvard. He was a really bright guy. He went to work for the Rand Corporation. He got on this study that McNamara commissioned of the Vietnam War and that produced the Pentagon Papers, and they showed, and he was alarmed, that a lot of the facts about the war were not true. And he was a true believer that the people had to know this. And ultimately he was, I think, convicted, but the case was dropped because of misdeeds by the other side. Do we remember the plumbers and do we remember the Nixon impeachment? I think we do. So there was a huge consequence for what he did, and sadly, at least to him, what he did didn't end the Vietnam War and he was forever sad about that. But that would be one that stands out. This new thing with this airman, Teixeira, in Massachusetts-

Ian Bremmer:

From Massachusetts.

Jane Harman:

Yeah, it's kind of interesting. Again, a kid who wanted to show off-

Ian Bremmer:

Yeah-

Jane Harman:

A kid.

Ian Bremmer:

In his early twenties, with access to documents that seems well above his pay grade, frankly.

Jane Harman:

Well, we have had, and we have to correct it again, a trusted system. We don't have that many people in it, but we have a trusted system. And that airbase I think no longer has classified documents. It certainly doesn't allow for them to be transferred in any form. A new policy called the two-man rule or the two-person rule, which required two people to be there when documents were transferred in any form so that the second person, presumably not from the same team, would be able to call out the first person. But it is a very difficult problem, a wicked problem. How do we control this but also share crucial information? It's this tension between the need to know, and we can argue how many people need to know a very privileged information, and the need to share. And I can argue that people who are in a position to stop harm to the United States need to get the information that gives them the tools to stop the harm.

Ian Bremmer:

Now, I noticed you didn't mention Hillary Clinton, and of course if you're a Trump supporter right now, you're saying that the fact that Hillary has not been done up on charges while Trump is shows that the system has been delegitimized and that it's all political. What's your view of the mishandling of classified documents on Hillary Clinton, the former secretary of state's private laptop?

Jane Harman:

Well, as I understand it, that was used for her convenience just to make it easier for her to access emails. It was a mistake. It wasn't appropriate. It was not on a... There are laptops appropriate to handle classified information and there are some that are not, so it was on the wrong laptop. It was discovered accidentally and it shouldn't have been there, this classified information. I don't know what the classified information was, but it was wrong. And I think, looking back on the incident, Hillary Clinton would've been advised to say at the front end, "This was wrong. I made a mistake. This material's going right back to the federal government. It was sloppy practice and I apologize."

Ian Bremmer:

So in other words, covering it up was the bigger transgression here?

Jane Harman:

Well, I don't know if they covered it up, but not addressing the issue.

Ian Bremmer:

Going back to Trump for a second, is the thing that most concerns you about Trump not the fact that he had all these documents, but the fact that he obstructed justice, the fact that he lied and instructed people to lie about it to the DOJ and the FBI?

Jane Harman:

What bothers me is that he, I think, and this has to be proved in court, knowingly took this information, knowingly marked it up, knowingly shared it with people, and I think while he was president, but certainly afterwards, it was not in secure places. And some of the information allegedly included information about our war plans on Iran. Well, excuse me, I hope we don't go to war with Iran, but I certainly don't want to read about it in the newspaper or have some guy who was a random golf buddy at Bedminster Golf Club in New Jersey. P.S. There may be additional charges against him in New Jersey because of this. I don't want some random golf guy to have information like this and blow up a situation where our national security is at risk.

Ian Bremmer:

So if he actually did all of this, and his excuse is basically, "Well, because I wanted to, because I was the president," should we try him as a child?

Jane Harman:

I think we should try him if there is proof that he committed, and there seems to be proof, if he's indicted for committing federal crimes under the Espionage Act and other acts. I think we should try him the way we try anybody else, with a jury of his peers. From reading about this, the venue in Florida is very favorable to him. There's a Trump-appointed judge, and it's a very small population, which might actually like him a lot. Juries are supposed to be appointed impartially, so that may be a tricky thing, but then there'll be maybe a second case in New Jersey where things may be different. My point is, and this is the old saw, no one is above the law and I don't see a reason why other people should be convicted of doing things like this, if they are convicted, and he shouldn't. What about his body man, this guy who followed Trump's orders? Should that guy go to jail because he followed Trump's orders and Trump walk? Doesn't really seem fair to me.

Ian Bremmer:

Jane Harman, thanks so much for joining us today.

Jane Harman:

Always a pleasure.

Ian Bremmer:

That's it for today's edition of the GZERO World Podcast. Do you like what you heard? Of course you did. Why don't you check us out at gzeromedia.com and take a moment to sign up for our newsletter. It's called GZERO Daily.

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The GZERO World Podcast is brought to you by our lead sponsor, Prologis. Prologis helps businesses across the globe scale their supply chains with an expansive portfolio of logistics real estate, and the only end-to-end solutions platform addressing the critical initiatives of global logistics today. Learn more at prologis.com.

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