Joe Biden's lawyers discovered a second batch of classified documents from his vice presidency stint at a new location on January 11, US media reported, just a day after the US president was "surprised" when briefed about the first set of records related to Ukraine and Iran, among other security issues, found in his private office.
Former National Security Agency (NSA) contractor Edward Snowden offered some scathing comment on Joe Biden’s classified document scandal. The man who himself blew the lid on a widely-cast net of cyber espionage organized by the US ironized on his Twitter feed that the US President appeared to have "absconded with more classified documents than many whistleblowers."
He cited the case of US National Security Agency whistleblower Reality Winner, sentenced to five years in a federal prison in August 2018 for leaking a classified report about the Russiagate investigation.
The real scandal isn't that Biden had classified documents coming out of his socks, because sadly they've all been doing it.
— Edward Snowden (@Snowden) January 12, 2023
The scandal is that the DOJ found out about it a week prior to the midterm elections and chose to suppress the story, conferring a partisan advantage. https://t.co/Zgx5FEpPeH
Meanwhile, Snowden wrote, "Biden, Trump, Clinton, Petraeus... these guys have dozens, hundreds [of documents]. No jail."
According to Snowden, the real scandal wasn't that the 46th POTUS had "classified documents coming out of his socks," but that the United States Department of Justice (DOJ) found out about it a week prior to the November 2022 midterm elections, but opted to "suppress the story."
Edward Snowden has every right to take a sardonic view of the situation regarding the Biden classified documents row. Back in June 2013, Snowden was charged by the US Justice Department with violating the Espionage Act of 1917 and government property theft, after he exposed classified data to the press.
The data in question showed that US intelligence services and their allies were spying on US citizens and foreign leaders on a grand scale. Following this, Snowden fled the US. As he was heading to South America, the whistleblower had his passport revoked, and was forced to spend a month in Moscow's Sheremetyevo International Airport until the Russian government granted him asylum. Edward Snowden in early December officially became a Russian citizen, taking an oath of allegiance and receiving a Russian passport, after a September decree by President Vladimir Putin granted him Russian citizenship.
Successive disclosures earlier in the week by US media revealed that several classified files had been found in Biden’s private offices dated 2013-2016 and hailing back to his vice presidency. Biden's lawyers ostensibly found the documents while clearing his office at the Penn Center, a Washington-based think tank, in November 2022, and other presumably unprotected locations.
According to the White House special counsel, they had immediately contacted the US National Archives who forwarded the information to the Justice Department. Among the first batch of documents, now under the Justice Department's review, were purportedly classified materials related to Ukraine, Iran, and the UK, among other security issues. Despite confidants coming across the docs on the eve of the midterm elections in early November 2022, the US DOJ chose to remain silent about the story.
The scandal prompted conservative outlets to draw parallels between the current classified memo drama and the uproar over ex-POTUS Donald Trump keeping classified documents at his premises in Mar-a-Lago.
Last year, despite Trump voluntarily turning over a number of government files he had stored after leaving the Oval Office, the FBI carried out a raid on his residence on August 8, 2022 and seized 13,000 documents from the location. Just 103 of them turned out to be classified and 18 were marked "top secret." The 45th US president maintained that he had declassified the files before he left office. Attorney General Merrick Garland appointed a special counsel to oversee the case of Trump's classified documents, with Republicans recently calling on the AG to appoint a special counsel for Biden too.
With President Joe Biden now embroiled in his own classified documents controversy, partisan commentators will surely have a field day playing the tired old game of “no, you endangered national security.” Instead, I’d like to focus on the real issues: the overly broad and often-abused Espionage Act and the massive, draconian secrecy system that does far more harm than good in the United States.
Now, before someone accuses me of “both side-ing” the separate Trump and Biden scandals here: no, they are not the same. Trump had mountains of secret documents he purposefully absconded with that he both refused to give back and arguably lied to authorities about. Whereas it seems Biden’s team actually alerted the authorities that the president had them in his office and is fully cooperating in their return.
This should be yet another wake up call that both the classification system and the Espionage Act need a dramatic overhaul. The question is — as more secret documents are found at a second Biden location and Trump’s special prosecutor continues to work — will anyone listen?
But here’s the thing: that doesn’t mean Biden didn’t potentially violate the Espionage Act – at least according to some legal experts.
That’s because the Espionage Act is incredibly broad and spares no one. As I’ve explained before, even using the Espionage Act to go after Trump should not be cheered on by Democrats. Instead of actual spies, the hundred year-old law is usually abused to prosecute whistleblowers and threaten journalists. But it’s actually so broad that if you are a longtime reader of the Guardian, you’ve probably technically broken the law too!
“Whoever having unauthorized possession of, access to, or control over any document…relating to the national defense…willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it” is in violation of the statute.
Thankfully the First Amendment should ultimately protect both the Guardian and its readers from prosecution. (Ironically, first the Trump administration, and now the Biden administration may be trying to change that with its unprecedented and dangerous charges against WikiLeaks founder Julian Assange.)
Regardless, such an overly broad and dangerous law should not be on the books in the first place. The reason the Justice Department is able to potentially wield it over so many people is because the secrecy system itself is irrevocably broken.
The US government has a massive overclassification problem - and that’s not just my opinion as a transparency advocate. Even the people who have been in charge of administering the secrecy system often denounce it once they leave government.
Tens or hundreds of millions of documents are classified per year. A tiny fraction will ever see the light of day, despite the fact the vast majority never should have been given the “secret” stamp in the first place. Of all the money spent on the classification system, less than half of one percent is spent on de-classification.
The system is set up so the government has every incentive to claim any information is of the utmost sensitivity because they know anyone they prosecute cannot challenge their classification decisions. And it doesn’t matter that, time and again, they have been shown to grossly exaggerate or lie about the true nature of those supposed “secrets.”
No one is ever punished for overclassifying information, yet plenty of people go to prison for disclosing information to journalists that never should have been classified to begin in. Even efforts to reform the secrecy system end up classified themselves.
Take the reporting on the Biden controversy. CNN reported that the “classified materials included some top-secret files with the ‘sensitive compartmented information’ designation, also known as SCI, which is used for highly sensitive information obtained from intelligence sources.” They cited an anonymous source (almost certainly law enforcement). Yet CNN also said that a “White House official characterized the documents as ‘fewer than a dozen,’ … none of which are ‘particularly sensitive’ and ‘not of high interest to the intelligence community.’”
So which is it? Maybe somebody’s lying. Or maybe it’s all Top Secret and also basically nothing, because the US government classifies everything.
As journalist Jeremy Scahill pointed out, political elites constantly mishandle classified documents, but never receive the severe punishment lower level whistleblowers do when they commit same or similar crimes. It’s true there is a severe double standard that has ruined the lives of so many brave whistleblowers. But maybe, just maybe, now that the classification system has ensnared each of the last two presidents, people will start coming to their senses: tear down the US secrecy system before it tears down its next victim.
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