Kamala Harris was a member of the Intelligence committee, IIRC - so would be entitled to receive briefing as part of that committee. Biden, as former VP, had security clearance; I assume it’s still valid? So Kamala could update Biden. If in fact Biden no longer has clearance until someone determines he should be given one, then Kamala could still brief Biden and expect a pardon sometime after Jan. 20 for violating National Security laws?
The issue, I assume, is that there are some things that the president (and VP) should be informed of that the senate committee does not get to hear… so the elects should get that in anticipation of the change of leadership. …should…
The problem today -or the last few year - is that so much of the norms of government have been tacit agreements, and because nobody challenged the letter of the laws. When does the GSA have to recognize a new executive? It’s never been formally written down. What is the exact process for handing errors on mail-in ballots? What happens if the board of electors or the legislature fails to certify a vote? After over 200 years, it’s only been this year that the laws about faithless electors were clarified by SCOTUS. I suspect over the next year we’ll see a lot more of these ambiguities codified as explicit laws so there is no question - “next time”.
As VP, I’m not sure Biden would actually have held a security clearance. The VP is one of two Constitutional officers in the Executive Branch. The President has pretty much absolute authority over classification and clearances. The President doesn’t have a clearance because it’s irrelevant for him. The President can share any information he wants to with the VP, and a formal vetting process for the only other elected official in the Executive Branch would be weird, but again, I’m not actually sure.
If he did have a clearance, it would be dormant while he was out of public service. It would be easier to re-activate once he re-enters public service than getting a completely new one, but, again, as President he wouldn’t have a clearance. I think there are ways to maintain an active clearance outside of government service - I believe some retired intelligence officials are able to maintain active clearances so they can be consulted on an ad hoc basis. But it’s unlikely a former VP would have a clearance like that.
As to Kamala Harris, she would have a clearance as a member of the Senate intelligence committee, but it would be a felony for her to share classified information with an individual who does not have both the appropriate clearance and a need to know. Having a clearances does not give someone the authority to divulge classified information.
As I suspected, the VP does not hold a security clearance. As an elected Constitutional officer, he is not required to hold one.
Senators don’t actually have clearances, either. Again, as elected Constitutional officers, they aren’t bound by the laws on classified information (which makes sense, since Congress wrote those laws…). She is bound by an oath of secrecy and Senate rules on sharing classified information, however.
I told a few of my step-family that, since their mother was a naturalized Canadian before they were born, they were entitled to claim Canadian citizenship even though she left Canada before 1970. Some have, but one said he would wait because he had a US security clearance for his civil service job, and applying for foreign citizenship status papers would likely cause problems with his security clearance.
As i said about Kamala - if there was a problem with her sharing classified information, I’m sure she could be pardoned by the president after Jan. 20th.
But D_Anconia raises a good point - can someone with a security clearance inform someone with the correct security clearance level about security matters, or is there still compartmentalization by topic - i.e. your security clearance allows you to know about these North Korea matters, but not about Israeli nuclear details at the same level"?
(Reminds me of the story during nuclear arms limitation talks - things were going really slow and one of the US negotiators talking to a group of high up Soviet generals got exasperated and finally said “look. we know you have the following missile types here, here, here and here…” The Soviet missile corps general looks shocked. Points to the Admiral and says "you can’t tell him that - it’s classified! ")
My experience is that need to know overrides clearance level. You may have a Top Secret, but that doesn’t mean you can access all Top Secret material. You absolutely must have a need to know before you can see anything. The hair-splitting of compartmentalization is insane, although it loosened up a bit in the mid-1990s after the collapse of the USSR.
A real world example from when I was just an entry level software grunt working on an application that took satellite state-of-health telemetry and converted it into human readable reports. I needed 4 clearances to run the application. A DoD Top Secret clearance to get into the computer room. 3 compartments, sometimes referred to as “tickets” or “squares”. The first was to know who the end customer was and what the satellite did. (I needed that one to have a computer account inside the room). The second was to know which particular piece of telemetry was the antenna pointing information. (If you know where the antenna is pointing at what time, you could figure out who it was talking to and when). The third was to actually view the antenna data. So, it was possible for one to know that element XYZ contained the antenna information, but not be allowed to see a report containing XYZ. Conversely, you could view a report containing XYZ, but not know what XYZ represented.
When I left that company, I was debriefed and signed an NDA, which remains in effect for the rest of my life. Even when I see an announcement of something being declassified on the news, I can’t say anything because I have not been given formal permission or direction. As far as I am concerned, it’s still classified until a government security representative personally tells me otherwise in an official capacity. While the rules are probably different for elected officials, I would imagine Harris can’t really tell Biden anything until he is actually president. It was made explicitly clear to me when I was debriefed that my soon-to-be-former co-workers and I could not discuss anything, as I was to be treated as if I had never been cleared.
That’s not really how it works. If information is classified at, say, the Secret level, you need at least a Secret clearance to be allowed access. But you also must have a “need to know.” As ChockFullOfHeadyGoodness points out, “need to know” is actually more important than clearance level, although less formalized.
There are a whole range of caveats that can be added to classified documents as well, such as NOFORN. That means it can’t be released to a foreign national, regardless of their clearance or any information sharing agreements with their country. Another common one is ORCON - Originator Controlled dissemination. That means you can’t relay that information to anyone else, regardless of clearance and need to know, without the express authorization of the originator of the document.
But, as I pointed out above, this doesn’t really apply to Biden and Harris. Elected officials don’t have clearances. Senator Harris is bound by her oath of secrecy and Senate rules, not the normal rules on handling classified material, which don’t apply to members of Congress.
In fact, in some sense, need-to-know is the entire clearance system. The only reason anyone ever gets a particular level of security clearance (Top Secret or whatever) is because they need to know something that’s at that level. Nobody ever gets a clearance for general purposes, just because they’re trustworthy.
Strictly speaking, the limit on need-to-know applies even to the President. It’s just that the President has the authority to say “I need to know this”, and if he says that, there’s no authority that can contradict him. Even so, there are probably situations where a President asks some government employee about something, the employee asks “Do you need to know that?”, and the President prudently says “No, I probably don’t”.
Maybe with past Presidents and with the soon-to-be President. I doubt that conversation has ever gone down that way with the current occupant of the Oval Office!
On the other hand, this frankly strikes me as nonsensical. U.S. law gives the President sole and broad-bordering-on-absolute authority to classify information and determine access to it. In a very literal sense, the President is the security clearance system. As a practical matter, of course, the President can’t possibly personally oversee all of the classified information handled by the U.S. government, so an elaborate and massive bureaucracy has grown up to manage such matters on a day-to-day basis. But that entire national security infrastructure is simply using authority delegated by the President. Even if the concept of “need to know” made sense when applied to the President, simply by asking for information he is by definition establishing his need to know. There simply cannot be any classified information held by the U.S. government for which the President lacks a need to know.
I simply can’t imagine the circumstances in which an Executive Branch official would push back against a Presidential request like that. It would be rank insubordination.
Now, there are categories of information to which the President’s direct access is legally restricted. Personal Health Information, raw census data, and information on individual taxpayers come immediately to mind. But those are completely separate from “classified” information.
Oh I can think of situations where the Preisdent might at first want to know, and then be reminded that it’s not in their interest to know - think of Iran Contra.
The situation I was thinking of was more like a President expressing idle curiosity about, say, some technical detail of bomb-making. In reality, the President probably doesn’t know enough nuclear physics to be able to do anything useful with such technical information, so he doesn’t actually need to know, but he might ask anyway just out of curiosity. In such a situation, I think it would be perfectly appropriate for a nuclear engineer to verify that the President needs to know.
If the President asks about some technical detail of bomb-making, then the person being asked answers the question to the best of their ability. Period. They might try to pitch their answer to the level of an uninformed layman, or seek to clarify the President’s level of technical knowledge before answering so they know how to pitch the answer, but there’s no way they try to validate a President’s “need to know.” I can imagine a civilian nuclear engineer patronizingly questioning if the President would understand the answer, but that’s different from trying to establish if the President has a need to know.
It is not the job of a nuclear engineer to determine if the Command in Chief has a “need to know” a technical detail about a weapon system. It would be an unbelievable presumption and rank insubordination for any subordinate to question the President’s “need to know”. The concept simply does not apply to the President.
People without clearances or first hand knowledge of how the U.S. government often have distorted views of how it all works.
Under U.S. law, Congress has vested the President with the power to classify information for reasons of national security, and determine who should have access to it. Period. There’s nothing else.
As I indicated above, an elaborate national security bureaucracy has grown up over the decades to handle the day to day details of clearances and handling classified information. As a practical matter, the President isn’t any more involved in it than he is in delivering Social Security checks. But no one has authority independent of the President to classify information or to provide or withhold access to it.
It’s really not complex. There are no corner cases. The President has access to all classified information. Period. No one in the U.S. government can lawfully deny the President access to whatever classified information he might want. He’s the one who classified it in the first place. He’s also the one who granted clearance and access to whoever physically has the Trident II tech details. Not personally, of course, as a practical matter it would have been through the established bureaucracy. But that bureaucracy only exists as an extension of the Presidency.
It is simply not the job of anyone in the Executive Branch to determine whether the President “would clearly not be able to understand” classified information or if would be “in any way useful to them for making decisions.” As a practical matter, a subordinate could, of course, object, or protest, or question the order, through proper channels. But, at the end of the day, a civilian who didn’t turn over the thumb drive would be insubordinate and subject to disciplinary action. A member of the military who didn’t turn over the thumb drive would be guilty of criminal conduct, and subject to court martial.
Document recovered by the Old American Empire Archaeological Expedition of 105 P.A. Scholars are still debating its relevance to the outbreak of the 5 Minute War, which occurred only two days after the date on this document.
Which is precisely why the engineer should ask. He shouldn’t decide for himself whether the President needs to know; he should ask someone who knows the answer to that question. And there’s only one such person he can ask.
And then, if the President says “Yes, I do need to know”, then the engineer hands him the thumb drive.
I’m sorry, but that doesn’t really make sense. Again, the President is the one who classified the information on the thumb drive in the first place and the one who gave the engineer access to that information.
Again, as a practical matter, it would have been the bureaucracy that classified the information and gave the engineer a clearance, and determined the engineer’s need to know, but again that bureaucracy is an extension of the Presidency.
“Need to know” is simply nonsensical when applied to the President.