Whitehouse security: how is it so easy to walk out the door with box upon box classified material?

Factual Questions
1

Like many I used to think that the White House was someplace with eyes on every square inch 24/7 and nothing got in or out that shouldn’t be. But the current headlines about stolen records say otherwise, and even during the last switching of presidents I saw photos from members of the public showing items (paintings/sculptures/etc) being loaded into vehicles in broad daylight that appeared stolen.

Is it like airport security where once you get in you don’t get checked again on the way out? Someone could hand me a pound of cocaine or a handgun while I’m on the plane and I could walk off with it no problem. Does it work the same way in the Whitehouse, or is it more that the very top people aren’t questioned because of their status? It seems trivial for someone with clearance to get in to simply walk out the front door with any classified material they want to sell to foreign powers.

2

The time when the outgoing president is vacating the Whitehouse is going to be something of a special time. People moving stuff are doing so on the orders of the still incumbent president. One would imagine that there are a pile of personal effects that the president would bring with them. Living somewhere for four years would be a bit wearing otherwise. Like living in a hotel for four years.

But theft of classified documents is harder. People with a security clearance are trusted. There are protocols for moving classified material. But they all depend upon the people in the chain being trustworthy. Documents could actually leave in the correct containers. Security would see a person with appropriate clearance with documents in the correct containers. No problem here. That the documents get copied is impossible to detect. Documents return or arrive at another secure location. All appears good.
Eventually all security is human you have to be able to trust humans. Security clearances are rigorous but never perfect.
Dr Yueh betrayed House Atreides to the Harkonens.

3

Don’t all classified documents require that a documented chain-of-custody be maintained? If a document if found to be missing, it should always be possible to know who last had that document, and thus that person would be held responsible.

Is anyone allowed to handle a classified document, or carry one from one place to another, or even see one, without a security escort?

4

Pretty much.
It isn’t clear that the documents in question went missing physically or that copies were made.
There are levels of security of documents. At serious levels the exact number of copies and who has them is managed. Again, if someone in the chain breaks security by copying them it is hard to manage. This is “throw away the key” levels of criminal conduct.
But lesser levels of classified documents also exist. Their value might be not in their exact content but rather in aggregation of information across sources. This is a big part of why “need to know” is so important in any classified domain. Even seemingly innocuous information can become significant when aggregated.
Boxes of low level information can lead to major problems even if the data were apparently trivial on an individual level.
The boxes could have been low level day to day boring stuff destined for secure disposal. Enough of it being diverted will still cause major headaches.

5

As someone that has worked in several different SCIFS, generally it would be trivial to print out Top Secret stuff and walk out of the building with it.

6

Which is why you have to give a detailed life history for the last 7 years, have investigators interview your friends and family, and their friends and family, and maybe pass a polygraph, to be able to get a TS. You can put controls into place but in the end it comes down to trusting people.

7

Nitpick: White House, not Whitehouse.

As others have said, there are controls on the handling of physical documents, but they’re largely trivial to circumvent. And draconian controls on pieces of paper would be pretty silly, since it’s so trivially easy to transmit documents electronically. Short of a strip search, there’s no way to keep someone from smuggling out thousands of documents on a thumb drive.

So, yes, if someone has the proper access authorization*, it is trivial to simply walk out the front door with classified material. See Edward Snowden and PFC Manning for some particularly egregious examples.

Beyond that, though, I think there are some fundamental misunderstandings in play about the “stolen records” in current headlines. Those documents were presumably removed when Donald Trump was still President. This next bit confuses a lot of people, including some people who should really know better.

Under U.S. law, the President has sole and absolute authority to classify, declassify, grant access** to, and control and regulate handling of classified documents. By definition, the President simply cannot mishandle a classified document. This is one are where it’s actually true, if the President does it, it’s not illegal.

The documents in question were presumably removed when Donald Trump was still the President. If they were removed and transported to his private residence with his express authorization, no laws regarding the handling of classified information were broken.

The legal issues around those “stolen records” have to do with laws on Executive Branch document retention, not with their status as classified documents. That last does come into play tangentially, though. Pretty much every administration gets into disputes over whether some documents should be considered the private papers of the private individual who happens to be occupying the office of President of the United States, or official government records. By definition, if a document is classified, it’s an official government record, and subject to document retention laws. The legal issue at play isn’t that classified documents were removed unlawfully, it’s that official government records were retained unlawfully.

*Most of the real controls are on access to classified information, which requires more than simply the proper clearance.

**The President in theory has some limits on his ability to deny access to classified documents, such as due process rights and fair administrative procedure laws when denying a clearance, or requests from Congress for access, but the courts have historically been reluctant to get involved in such cases.

8

Unless, of course, you’re the President.

And what @gdave said.

9

But does an ex-president get a security clearance automatically? He explicitly doesn’t require one while he is president (except maybe to see the alien bodies in Area 51), but once his term expires he doesn’t have the inherent right to access classified information any more. If he had one going in, it would need to have been pretty recently renewed to not have expired while president. There is no way on earth the most recent ex-president would have qualified for any sort of high-level clearance if he had to go through the normal process. Owing large sums of money to foreign entities is a major red flag if nothing else.

With no security clearance he is not permitted to possess classified documents. I don’t even want to bring up his lack of a “need to know”.

10

AIUI, the documents were removed while he was still president.

And, while he was still president, he could declare them unclassified; and they’d presumably stay unclassified at least until, and unless, some later president declared them classified again. Which would require that president to know about them, and what was in them. Which may have been what Trump was trying to avoid.

Or maybe they were just tossing things into boxes and not paying any attention. I wouldn’t put it past Trump, or past some members of his administration (obviously not the ones who were taping things back together and putting them into proper storage.)

– I think ex-presidents are often given continued security clearance without being required to go through ordinary procedures, so the current POTUS can ask them for advice (whether or not they choose to take it.) I doubt this was done in Trump’s case, though; I think it has to be done by the incoming administration, who in this case had reason not to do so.

11

There is an extensive bureaucracy and a thicket of rules and regulations that have grown up around security clearances and classified information. But all of that exists solely for the convenience of the President. In a very literal sense, the President of the United States is the security clearance system. The concept of “security clearance” or “need to know” simply doesn’t apply to the President.

Former presidents don’t have a clearance. A current President may authorize former presidents to continue to receive classified briefings, and this has typically been done, in large part so that the current President can call on them for advice. But they don’t have a formal clearance, a system which again only exists for the convenience of the President. The President can give any classified information he wants to anybody he wants.

Even if President Trump never formally declassified the documents with classification markings that were recently found at Mar-a-Lago, if he authorized their storage there, by definition he gave himself continued access to them, which he had sole and absolute authority to do.

If an aide removed those documents on their own initiative, without express authorization from President Trump, that aide would be in violation of laws on handling and storing classified information, but I don’t think there would be any real legal case against Donald Trump.

Again, the legal issues are solely around unlawful retention of official government records, not unlawful possession of classified documents.

And I guess just by the way, I’m personally betting this is what actually happened:

12

What is “unlawful possession of classified documents”, anyway? If some whistleblower and/or cabinet minister sends me a bunch of top-secret documents, why would I have legal issues? Seems like keeping track of such things is the government employees’ problem, for instance by not letting me sit in on briefings and go through filing cabinets unless I have the right formal security clearance, or by not clearing people who are likely to leak sensitive documents.

[I assume you have heard the story of the guy who did not have clearance to read his own report? Problem was, while writing part two he needed to refer to part 1. Luckily (and probably illegally), he had kept a copy of his draft.]

13

Or, you could get elected president. And I seem to recall that after (I think it was) Jared was simply granted a clearance by TFG.

14

If you know the documents are classified you have a problem. If you have a clearance but no valid need to know and/or you got the documents via in unauthorised source or mechanism you are in serious trouble. Clearances come with responsibilities.
Some countries afford the press some freedoms with classified material, but it is a mess at best. For any ordinary citizen, if you come across classified matter, you hand it in to an appropriate authority. Holding onto it is not on. Taking it into a police station would be a good start. They can initiate the process of getting it secured and to the right people.
You can consider classified material like any proscribed contraband. If a whistleblower sends you a kilo of methamphetamine you don’t have any right to possess it either. Information is messy because it can be duplicated. But otherwise it isn’t different.

15

The press has published or at least received classified information leaked from cleared sources on many occasions and I cannot recall a single one ever being prosecuted.

It’s clearly illegal for a cleared person to transmit classified data to an unauthorized person, but (IANAL) my impression is that the person on the receiving end hasn’t broken a law if they just sit on it. Publishing it is more of a gray area.

Even if you haven’t broken a law you will probably get a colonoscopy from the feds trying to figure out who you are, why it was given to you, what risks you pose, and so forth. But I don’t think you can be prosecuted.

16

Naturally I had the press in mind, who have to deal responsibly with many deep dilemmas, but, to be clear, are you saying that if I do not have a clearance, or indeed know what clearance is all about, that it becomes my responsibility, and that classified documents are in and of themselves contraband in exactly the same sense as illegal drugs?

(Also, leaving aside the problem of protecting sources, if I had to return classified documents, are you sure taking them to random cops would be a good idea? If we are talking about military documents, obviously I could get in touch with them, or if it said “CIA” on it it’s clear whom that belongs to, etc.)

Right, if I were not a journalist, why would someone be sending me secret files? Not something Tom, Dick, and Harry want to get involved in in any way, shape, or form. And if I were a journalist, this will not be a complete surprise and there should be clear editorial procedures in place.

17

But there are procedures that have to be followed even for the classifying authority-the President or his/her designee. Even the President can’t just grab a classified document and stuff it into a box and walk off with it. Everyone has to handle the document according to specified rules, OR declassify the document. The President can declassify anything but can’t do that by just waving his hand over it and muttering an incantation. He has to fill out paperwork. That may have been done, but then the document would have had to be marked as declassified. I agree that by definition the President has access to any classified document. But after noon Jan 20, Trump wasn’t President and he lost access to all classified documents. And I do mean all. Just being cleared to see a classified document isn’t enough. Someone in the Government has to authorize a need to know. You can have a TS clearance that that doesn’t give you the right to see anything. The custodian has to decide you have a need to know. I strongly doubt Trump or his staff checked either box after Jan 20. Gdave seems to be saying that Trump could say he authorized his continued access to the documents. I don’t see how that would be possible. He held a clearance because of his job. But like everyone else who walks out the door on the last day, his clearance is automatically suspended when he leaves. If he (or anyone with a clearance) gets a new job that can grant a clearance he can get his clearance reactivated within one year. But when you walk out the door, you don’t have an active clearance. It is just that it is easy to reactivate and transfer to another Government organization for up to a year after you leave.

The bottom line is that as long as a piece of paper is marked classified by a proper authority (the President or his designee) it remains classified until it is properly declassified. The contents of the document don’t matter for the purposes of the law. That is what got Hillary off the hook (none of the emails she saved on her private server were marked as classified. Even though several had what was determined to be classified information in them. The FBI went through every one they could find. Well, one was, but it was a mistake and should have been declassified and Hillary would have known that. She still could have been in trouble for that one, but no one could have gotten a conviction.) And it appears that Trump could be catching the obverse of this situation. His staff took papers marked classified and didn’t properly log them out and protect them or get them properly declassified.

18

Note: I Am Not A Lawyer. But that’s not my understanding of the process and issues. If you have specific statutory cites or authoritative sources, I’d definitely be interested in having my ignorance fought.

This part is definitely wrong. This only applies to officials who hold clearances, and the President doesn’t have a clearance. The clearance system simply does not apply to the President. It is kind of true, though, in that Donald Trump’s authorized access to classified information derived solely from his position as President of the United States, so at 12:01 PM on January 20th, 2021, he lost that access, but that has nothing to do with a “clearance”.

Here’s where I’m willing to be corrected by an authoritative cite, but my understanding is that’s wrong. The President can just grab a classified document and stuff it into a box and walk off with it. He can just declassify it by waving his hand over it and muttering an incantation. My understanding is, again, that under U.S. law, the President has sole and absolute authority to classify and declassify documents, and control access to them. Clearances and formal classification procedures are simply formalized and bureaucratized extensions of the President’s personal authority. What you’re describing is best practices, and legally binding procedures for lesser Executive Branch officials. But those rules and procedures do not and cannot bind the President.

That’s all completely true. But statutorily, the custodian is the President of the United States. Any other custodian is simply exercising authority delegated to them by the President, for the President’s convenience. If the President directs that documents that have been classified Top Secret/Sensitive Compartmented Information with every caveat in the book be placed in a cardboard box and loaded on the back of a moving van, that’s what happens. It’s not good procedure, but it’s perfectly lawful. If anyone else gave that directive, they’d be guilty of a crime. But, again, it’s my understanding that the President has sole and absolute authority to do that.

I agree this is true. But, again, it’s my understanding that the President has unfettered authority to do that. A designee would need to abide by Executive Orders and Executive Branch regulations and go through formal declassification and re-marking procedures. But those orders and regulations do not and cannot bind the President.

Possibly. And if they did so on their own initiative, they’ve committed a crime. But if they did so under the express orders of the then-sitting President, I don’t think they’ve actually violated any laws on the handling of classified information.

They probably did, though, violate records retention laws. But that’s a separate issue.

Just by the way, a recent story on NPR covered some of these issues. Former federal prosecutor Brandon Van Grack did say that there was a potential that criminal laws on handling classified information were broken, but also:

…One of the core limitations is it has to be unauthorized removal and unauthorized retention. And the president of the United States has complete authority to classify and declassify information and also to determine how it can be handled and transferred. So he could have authorized the removal and retention of that information.

19

I’m sure it all gets a bit murky as to whether a prosecution would ensue, but in general governments take security very seriously. I would be hard to argue that you had no idea what a classified document might be, or that it represented something of importance to your country. There could be all sorts of reasons a person could come into possession of classified material. A leaker could have got the address wrong. Mostly recent history shows that lax security processes has had lots of classified documents sent to ordinary landfill.

Some idiot finding a box of papers marked “top-secret” in a dumpster should not be thinking “Hey wow! This stuff must be valuable” then trying to get money from it from the local Chinese or Russian embassy. Really no different to finding a bag of drugs, and seeking out their local drug dealer to see if there is some money to be had.

Being an idiot with classified material is about as smart as joking about planting bombs when passing through aircraft security. Nobody has a sense of humour about this.

Classified material getting to the press is regarded differently in different countries. But even in the most liberal - like the USA - there is an unwritten rule about publication in the national interest. Journalists know that they don’t get to arbitrarily disclose information. They tread a very fine line. Eventually there is an uneasy blurred line. Public interest may be ruled by the courts to outweigh the security laws. Journalists get more leeway. Leakers very little. But no journalist is going to expect to be able to publish a list of names of US overseas spies, or the capabilities of a US Navy vessel.

As a private citizen you would have rocks in your head to go anywhere near these sorts of arguments. The stakes are a whole level greater than anything ordinary citizens ever experience.

It is a little hard. You want the documents secured. The police should have protocols for interacting with the various security agencies. In the course of their ordinary duties they will of necessity come across situations where areas are secure and people have classified documents. If you feel your local police force is not to be trusted, you have other, more serious, problems. Agencies have security officers who handle spills, and they are the right people to get into contact with. But you can’t be expected to know how to do that in a timely manner. Nor should you be reading the material to try to work out who to give it to. But if it is clear that say, the CIA owns the material, first thing to do would be to ring them. It will depend upon when, where, and so on. They may well tell you to stay put and that they will be there very shortly.

20

Just receiving (or finding) the stuff doesn’t mean you’ve broken the law but once you give it to an authorized person you have broken the law, no matter how you got it, or whether or not you yourself are authorized for it.