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view of government. we are funded by these television companies and more including comcast. >> you think this is just a community center? now it is way more than that. comcast is partnering with 1000 community centers to create wi-fi enabled -- so students can get the tools they need to be ready for anything comcast suorts c-span as a public service along with these other television providers, giving you a front row seat to democracy. >> joining us is former pentagon special counsel to talk about the classification of government documents. thank you for giving us your time. can you talk about your background and experience in the pentagon when it comes to classified documents? >> yes. i worked for the pentagon as

special counsel to the general counsel and in that job, i had top-secret special compartmented information clearance, which is the highest level the government provides. in that role i had a chance to work with classified documents at all levels. the secret level and a top-secret level, the three levels of documents. and when i came back to work at my regular job as a professor at yale, i reflected on the work i have been doing and the classified documents i had seen. one of the most striking aspects of that was realizing so much of what i have worked with, so much of that classified material is just ordinary information that probably should not have been classified. >> you talk about three levels of classification. can you talk about what those mean? >> the three levels reflect

evaluation by the government of how much damage it could do to national security for the information to be released. classified information, the view is it is not going to do any damage. if it's confidential it could do some damage and it escalates from there. so then it to secret, then it damage to national security and top-secret is the highest damage to u.s. national security. the classification is supposed to reflect how important information is and how damaging it would be for that to get out. in my experience, reality did not always reflect that. host: why is that? ms. hathaway: when you are working with these materials if you have derivative classifications, that means i cannot originally classified information but whenever i am writing a document, i have to assess what level it should be

based on information i am including. so if i am using information classified as top-secret my document has to be classified top secret, even if most of it is not classified. 99% of it is unclassified and i have one fact in there that is top-secret, then the document has to be top-secret. if i am not rigorous about paragraph marking in documents, everyone who does this is supposed to mark every paragraph. but truthfully in this busy job, people do not do that. and so, what happens is every time someone is relying on previous documents at a certain level, they have to classified at that level, the highest possible level. so it has this magnifying effect. and as more and more documents get classified as the highest level, it is the fact that you are working, sitting at your desk, making a decision. how my going to classify this document? do i classify it or maybe it should be unclassified?

there are no consequences, at least in the job that i was in, for classifying something more highly than is necessary. but if you classify something as unclassified or secret and it should have been top-secret, that could be very damaging. because you are potentially giving access to people who should not have access to the information and that could have severe consequences for your job. you could get fired and criminally prosecuted. so the dangers of getting it wrong on the downside are very extreme. the dangers of getting it wrong by classifying something more highly are limited as a person in government. so that creates an incentive to classify at a higher level. ms. hathaway: because of the consensus, what is your guess of how much classified material gets produced on a yearly basis? ms. hathaway: i have a rough guess based on some facts. the last time the government tried to count, it estimated about 50 million documents a

year. 50 million classified documents a year. in 2017, they kind of gave up even trying to count, because they really do not have good records and agencies count these things differently, so it has probably gone up since then. i doubt that it is gone much below that, so millions and millions of new documents being created every year end meanwhile in theory we should be d classifying documents at the same a spirit of but truthfully, the process is not anywhere close to keeping up with the process. millions of classified documents on top of everything we already have, it has become a huge oedipus of classified information that the government has to protect. host: our guest will join us until it: 45 -- 8:45. you can call and ask questions.

text us your questions and comments at 202748 8003. if something is classified, what happens to it? ms. hathaway: what happens is there are different rules for how you have to store those documents and whether and how you can transport those documents. so if something is a top-secret document, it has to be kept in a special compartment referred to as a skiff. and if you're going to work with those documents, read those documents, you got to be in a skiff to do it. secret documents have their own set of rules. they have to be kept in a secure location, but they do not have to be kept in a skiff or ready to work with in a skiff. and then the same for confidential information. when i worked at the pentagon, you have three different computer systems on the same desk. so you are sitting at your desk, switching between these computer systems.

so they documents are kept physically in a different storage sillies. these days, almost everything is electronic, and they are completely separate computer systems. and completely separate computer storage systems for each of these classified systems. so if you are working in a top-secret system, you can only communicate with other top-secret systems. you cannot get on the internet. if you are on your secret computer, you can only communicate with secret systems. the same on classified systems so it is all segregated and managed very carefully by the government in order to protect these secrets as effectively as we can. host: if you had a document and i wanted to see it what what i have to go through to see the document? ms. hathaway: well, you could not if it was classified unless you had clearance. to get clearance you have to be working for the u.s. government. either directly as an employee or working for a contractor that has the capacity to provide

clear -- there are some governments in the system who work with the government who are able to get clearances. private military contractors, people who work with the government to do legal work or provide consultation or information to the u.s. government. but a reporter, i am sorry to say, is not going to get access to this. unless he gets licked and that would be illegal, so the person leaking the information is going to be criminally prosecuted and if you retain the information and use it knowing that it is classified, you could be criminally prosecuted. so there is a threat of kernel prosecution and over all of this. ms. hathaway: the reason i ask and i probably should have clarified --host: i should have clarified, we are in a stage and we will talk about this, where classified documents are showing up at the homes of the various presidencies. in various other legislators. because i suppose that in asking

and seeking out the information there is a process? ms. hathaway: it depends. someone like the vice president has access to everything and he has got a computer -- access on his computer and i'm sure he has got paper documents being provided on a regular basis at all levels. and, you know, that material is going to be provided in paper form. i don't know what his preferences are. he probably looks at things electronically. different high-level government officials have different preferences. what you are supposed to do is you take a top-secret document as a skiff, there is a very specific process and it is supposed to be followed. it can be done, but it has to be sealed in a certain way and there has to be careful chain of custody. it really not supposed to transport it. when i was at the pentagon i did not have permission to take things out of the building. i could take materials from one skiff to another but it had to be sealed.

a bag within a bag and that i had to go directly from one office to another. so there is a lot at my level, which is low-level. for someone at the vice president level, he is dealing with classified documents on a regular basis. and the problem we have in evaluating what happened with president biden is what are these documents? we don't know what they contain and what level they were classified. documents were moved by president trump and held at merrill log go, they had these cover sheets, they were top-secret. if you have seen the fbi photo scattered on the ground, you can see it has red stripes, top-secret language on them. those are hard to miss. things that are classified at lower levels like secret have a line at the top often in red

that is printed on a color printer that says secret. it would not be impossible to miss that. although that would be at my level, very irresponsible. nothing ever left my office that was classified. and the confidential level, for that material, it tends to be less closely held and protected, although it is governed by these classifications. without knowing whether it was a top-secret document, whether it was confidential, whether it was secret, it is hard to evaluate. secret and confidential documents, it is easier to see those mixed in with classified documents. it could be a binder put together with a number of documents in it. one of the documents in there might be a confidential or secret document and someone could have picked up a binder and brought it home and does not realize what was in that. you can say that should not have been done. it should have been prepared more closely. what they should have done if

that is the case is the binder should have had a top-secret sticker on the front, indicating that it contains secret or top secret -- whatever the level was. but people are busy, they do not always follow the rules closely. and on top of it, it is important to know again that a lot of this information is unremarkable. so it is not crazy to imagine that that is not that big of a deal. i just read the same thing in the new york times this morning. documents without mentally thinking this is a secret that needs to be protected because it is such an unusual information that i only have access and a rare number of people have access to. so again, not knowing what exactly is in at the document, how problematic it is, we don't know what level it is classified at. it is not hard to imagine that someone is working all day long with these classified documents. that they would get mixed in with unclassified documents and therefore transported after you leave.

so we don't know enough to evaluate that. host: tom in a fort myers porta. democrats line for oona hathaway. good morning. when senator moynahan left the senate come out one of his last speeches before he left was about this idea that we classify way too much -- way too many documents. he thought we should ease away from that, get away from that. and i think there was momentum to do that and along came the 9/11, i think, probably, >> sandy berger took the document out after 9/11. it moved on. now, oona, you seem to think

that we do way over classify things. the law is hard to comply with. i think that was hillary clinton's problem with the servers, separating her personal from the government things. she had conversations with former tecra terry of state colin powell about the issue. -- former secretary of state colin powell about the issue. having problems complying with the law. the exact law that we are talking about here, that classified these documents, i understand it is a new law that was put together by press people and everybody. they wanted everything generated in the government to stay in the government. so that in the future, they could come along and --host: got

your point tom, thank you for the question. ms. hathaway: senator moynihan saw this before anyone else and was a big advocate for china deal with this problem. this is before things have spiraled out of control. this is bad for government because in the end, the government cannot tell people what it is doing. and it really handcuffed people in the government from talking to ordinary americans about work that they are doing and people who are in government getting information from outside of government. it hamstrung congress because they might get briefings on things but they cannot tell constituents what they know because briefings are classified and they cannot share the information. so really it is not good for democracy and that was part of moynihan's point, so you are exactly right. as for what is the law, here is the crazy thing creative it is

an executive order. it is not even a law passed by congress, it was an executive order issued by the president that then you've got to keep the information classified. you've got to manage and keep this information from the public. and so there is a long executive order. the most recent one, president have been issuing these beginning with fdr and more or less, most presidents issue a new one. trump did not issue one actually, but the last one was from barack obama. that governs these different levels. there are three different levels and here are the rules that govern them and it is quite elaborate and spells out these rules about managing the material. but it is backed up by laws passed by congress that say that if you released information -- and there's a bunch of different laws, it is a crazy quilt of

laws. but more or less, they say if you release information that is damaging to national security intentionally, knowingly, you can be held criminally liable for that. the weird thing is that that law was originally passed before the executive order existed. but they say if the information is governed by the executive order we are going to assume that is the kind of thing congress had in mind. so it's a combination of the executive order that is only president made rules, only the executive has any say in what those rules are. backed up by laws passed in congress starting in 1918. before this even existed, so that is another part of the system that did not make a whole lot of sense and part of the reason it is long overdue for an overall. host: looking to hear from david in long island new york. republican aligned. >> sorry, good morning.

i wanted to just say if a president has to declare classified documents and the vice president does not end the secretary of state does not. senators do not. of how, they have these in their possession and they are now not being charged? ms. hathaway: well, that is a good question. and of course, there is an investigation underway right now into exactly that. into what information is that was released and they want it removed knowingly. part of the rules are if you were to remove the information in a way that is unknowing, you may not necessarily be criminally liable if it was not intentional to release the documents. the different ones i mentioned that there is a crazy quilt of laws and different rules have different standards attached. so if you remove the documents with intent to share with

someone who might damage national security, that is one thing. if you unintentionally remove documents, that's another thing. so part of what they are looking into is what are the documents, how damaging could they be, was the removal knowing or intentional, why did it happen? if it was discovered that the removal of the documents was knowing or intentional, then i think it could be criminally prosecuted. that is up to the -- that it is up to the prosecutor to determine whether to use prosecutorial discretion or not. there have been cases when classified information has been removed and there has not been a criminal prosecution. enroll petraeus famously -- general petraeus gave his confidant significant classified information that she should not have had access to. and he was sort of let off with a slap on the wrist. lots of people have removed a single document and been severely criminally punished.

those are cases where they did it with intent, so we have a lot of information to learn about the particular president biden back when he was vice president or former vice president. and the members of congress, they knowingly remove this information, they could be subject to come in a prosecution or at least they will be investigated and there will be a determination as to whether it was serious enough to warrant prosecution. host: professor, to clarify something, executive order that obama -- giving him this classifying powers -- the classifying powers? ms. hathaway: the president sits on top of this whole thing and has the power to make decisions and relegate down decision to declassify information. so he could delegate that information to the vice president to declassify information but generally, there is a process. even the president would go through it. so it is not like in government the president kind of waves a magic wand and things are automatically declassified.

there is a formal process generally that if something is going to be declassified, there is a review by agencies that might have interest in the information to make sure it the release of the information is not going to do damage to national security, because you may think looking at one document like that cannot possibly do any damage. but another agency with different kinds of equity might have concerns that given other information that is available, it could do damage. so normally, it would not be something where one person is sitting there saying ok, i am going to declassify this. they would say i want to start a process for considering declassification of the information. i want to submit this or have that set of information declassified and then it go through review. and even the president ordinarily would go through that. if there is a question obviously it with the trump material's, the president had claimed that he could himself declassify information. that would be highly irregular. and that is not how things are done and i think there is a

question as to whether or not the president can just sort of declare that something has been declassified that has not gone through this process. host: jim in connecticut, independent line. >> hi, how are you doing? i was in the navy 20 years ago. wow. and i handle classified information. you had a collar about a week ago or so and they wanted to know about the chain of custody thing. i was just a sailor, but i had clearance. and this story on custody, for one thing, classified materials must be kept in a safe that is really heavy. that no two people could carry out of the building or off the ship or something. another thing is that the way it is transmitted by registered mail, signature required, and it

is -- you hear me saying something that i shouldn't, please stop me. well, with these safeguards, including the markings on the document itself, which had a distribution list. so anyone on that distribution list has the same classified material that you do. if there is a senior command on that list, the next time the senior command inspects your command, he is going to have you open that safe and make sure the classified material is there where it is supposed to be. that there is no evidence that anything wrong has been going on. if they find classified material that should have been destroyed. host: ok, thanks jim. ms. hathaway: that is absolutely right and in particular, the

military is extremely careful about management of classified documents in particular. classified documents that are outside of a secure building like the pentagon. so if you are working at the pentagon, it takes a lot to actually get into the building. so everyone who is in the building has some kind of clearance, they have had a security review. you have to wear your badge when you're walking around so that everyone knows that you belong there. but when you are getting classified information in places like ships that are at facilities, military facilities that are outside of washington, there are various protocols for managing those documents and ensuring that the people who have access to them are only the people who are supposed to have access. that is appropriate because the documents are out there, they are more vulnerable and so there needs to be care taken. and material that is classified on something like a ship, information that is relevant to current operations. and that is especially sensitive information because that

information is to an adversary, then a potentially they know information that could be damaging to the sailors on board and u.s. national security as a result. so there is real caretaking with those kinds of materials the way that they describe. host: she is an international law professor and served as pentagon special counsel, talking about the classification of government documents. christopher in oklahoma, democrats line. >> good morning. my question had to do with the wikileaks situation and julian assange facing extradition. to the united states for publishing the cables, which are the exact cables that were published and are still published by john young on his

own.org website. daniel ellsberg of the pentagon papers fame has gotten involved as well. john young and daniel are asking to be indicted along with julian assange, but they are not being indicted. why are they treat it differently than julian assange? ms. hathaway: that is a great question. so you may remember, julian assange is the one who published all of these documents on wikileaks. and initially, the government charged him only with cybersecurity violations. so violations of rules that prohibit packing. but then in the trump administration, they added a charge, which is an espionage act charge for gathering and transmitting classified information or national defense information that can do harm to u.s. national security. and that triggered a lot of people to be worried about how

that law might be applied to journalists, two public commentators and others, because what julian assange was being prosecuted for, which was putting up these documents that he had not in most cases secured. he had not taken them from the government, he had received them from others and he was putting them up on websites where everyone could read them. and that is something the new york times does all the time. and then your times wrote stories more or less saying this is what we do as well and he should not be charged. and there was a lot of worrying journalists that what julian assange said ended in most cases is more or less the same thing, albeit on a different scale. thousands and thousands of documents. what they do on a regular basis. and the fact that the espionage act was being used against him, the law that creates criminal liability for releasing

classified information, that was being used against him, made them fearful it would be used against journalists. the truth is the way the law is written, it does apply to journalists who published information that has been eked to them. and the only reason it has not been generally used against journalists, it has just been that the u.s. government prosecutors for the u.s. government have made adjustments that that is not good for the country and that journalists should not be prosecuted for releasing this information. if they find out who leaked the information, that person should be prosecuted by the journalists should not be prosecuted. and so, they have been indicted since so those fears -- no one has been indicted so the fears have been dampened. journalists could be prosecuted in the future and that is why people reacted in the way that you described. host: there is a viewer on twitter who makes this statement, saying there is no

question if the president can't unilaterally declassify documents to require submission to any other executive authority would violate the constitution. ms. hathaway: well, the reason the president has the authority to issue executive orders is that the president's commander in chief and the chief authority to make determinations about how the information is going to be handled and managed. and the only authority that the executive order relies on is the president's constitutional authority. to the president could in theory because he is the one whose authority is being used to create the executive order, the president could effectively violate his own executive order, the only person who knows authority -- is the president's constitutional authority. as a matter of practice the way in which presidents have done this is -- the way in which presidents have declassified information has not been magically determining information is declassified.

it is to go through a process to ensure that the information being declassified is not going to do damage to national security. and this is a matter that is being litigated, one of the issues that is at issue in the trump case. and so, we will see where that leads. host: in your opinion as far as the distinction between the president biden and where they found the documents in his reaction to it and president trump, where they found the documents in his reaction to it, is the difference the reaction or the documents in question? ms. hathaway: since we don't know that much about the documents that president biden retained, it is hard to say how different it is. we do know the documents that were held by president trump worm top-secret -- were top-secret information documents, which is the most highly classified information that the u.s. government has and in particular that it was some very classified, compartmented programs that generally are kept under extreme lock and key and

not taken out of secure facilities. of they were being stored in a highly insecure facilities, so we know that. we do not know at the moment what the documents exactly where it with the biden administration. so it is hard to compare on that scale, whether they are as classified as the information being held by the trumpet ministry should, but what is striking -- the trump administration. but what is striking is that we know that the documents being held that were stored in properly in the biden home and office was because biden's staff discovered them and disclose them to the justice department and then provided the justice department and fbi to investigate and fully cooperated with the investigation and basically allowed them to turn the home and office inside out. we saw a very different reaction from president trump, who refused to return documents that were requested by the national archives.

who has resisted investigations, court ordered investigation. has not been cooperative with this process. so that reaction has been extremely different and i do think that is important because it revealed the different intent to remove and retain the materials. this is just of the biden removal, probably unintentional although again that is something that remains to be investigated. host: this is tom in woodbridge, virginia. republican line for oona hathaway of el law school. >> thank you for getting me on today. i live immersed in this environment and what she is giving everyone in america is a high level broadbrush of how this classified documents and things are handled. i think the more important thing here is not about whether trump

or biden have classified documents. it is actually more about what was the intent, what was the purpose behind their attention of the documents and was it negligence or malicious? i am not suggesting that either of them were malicious, because i believe they were probably both inadvertent, they handle a lot of classified documents in the position of president and vice president. so more than likely it is inadvertent. but as someone who has worked in the community for 20 years and handled top-secret si compartmented information for over 20 years and i have never, ever, not wants -- and virtually everyone i have worked with has never taken home top-secret classified documents inadvertently. it is understandable if the

president's office was backed up and something got mixed in there, because some staffer did it. but if either of those two individuals personally stored classified documents in a way that it was not supposed to be classified or handled, delivered lee, on purpose, themselves, that is where an investigation would need to take place. host: we will leave it there, thank you tom. ms. hathaway: i agree with that. intense matters of law here. who did this and why? and, you know, i think that these investigations are centering significantly on that. of what information was being retained? what kind of danger does this potentially pose to national security, that that information was not kept in a secure location? and most important, why was it removed? was it inadvertent, a file in a three ring binder that no one realized they were classified

documents mixed in there? or was their intent to take materials and disregard the fact that they were highly classified and that they could do real damage to national security if someone who does not have authorized access would get access to them, given that they were not being stored in an adequate way. i think that is exactly what the investigation is going to have to be looking into. they are to have to tell us, you know, what can they learn from interviewing people, looking at information itself, looking at records about what was going on and why these records were removed. and again, you know, right now, we know more about the trump administration situation than we do about the biden administration. it seems like a handful of documents and we do not know the level of classification. we know a little bit more about the trump situation because it has been more investigated and there have been more news stories about it.

we will know more about both of them as the investigations unfold. host: we saw something coming out of the nixon administration, the presidential records act of 1978. what did i do for confidential and secret documents -- what did that do for confidential and secret documents? ms. hathaway: it says any official documents do have to be retained. they are the property of the u.s. government, right? so you have to be keeping records carefully of all correspondence, all documents that are created. those are supposed to be retained and managed by the u.s. government. that includes classified documents as well. but it applies to all documents. so it applies not just to classified information, it applies to all government documents and in fact, when i started working at the pentagon, this became an issue because my emails were activated. and i could not do any work until that was activated,

because i could not work from my personal email, because that would not retain records of those bills properly to comply with the records act. every email, correspondent, every document is supposed to be maintained by the u.s. government and retained by the government. that's why it's a problem. part of the whole back of it with president trump started when the national archives were concerned documents that were supposed to be retained as part of the records of the trump administration that are important to maintaining a historical record and ensure future presidents have access to the information new that certain documents have been removed. if it was not necessarily concerned about classified documents being removed. it was materials being removed

and therefore not available to the archives and that is how this all got started and then they realized i think along the way that among the documents that they had retained to remove were classified documents. so that's an important obligation and a reason that when government officials went through private email servers, which -- was not the first person to do. many people had done it before including colin powell who you mentioned and many people in the trump administration apparently did that as well. one of the concerns with setting up the imo servers and using private email or government business -- for government business was unless you are corresponding with someone on the other end who has a government email address, those records are not being kept in compliance with the presidential records act. that is another set of rules that are important. host: any in washington state, independent line. caller: hi, good morning, yeah.

we were just reading about it. 2009 executive order january first 2009 by president obama and vice president joe biden. had the authority to classified documents. quick question, i have in all of the classified documents that apparently joe biden -- president biden had, the national archives were never looking for them. so what is going on with that? thank you. ms. hathaway: that is a great point. this is a different scenario with president biden. as i understand it, what has been reported happened is that they had -- the biden administration staff where looking through some of his personal records and trip across just by coincidence, notice that one of the documents they were looking at was a classified document.

and aware that that was being inappropriately stored, notified the justice department. so that led to this process of investigating, was there anything else in properly stored among those documents? so it was not that the national archives requested this information. it wasn't that anyone had reason to think there had been classified information improperly removed or retained, but really just -- and in a way, those staffers are heroic, i think. because it would have been very easy to just kind of sweep it under the rug. and you know what, it is a lot easier if we do not say anything. and we would not know anything . they did the right thing for democracy, the u.s. government. they disclosed it, went to the right channels, even though they knew it was going to create a

firestorm, they knew it was going to be a political headache. they knew it was going to be a challenge for the president, but they knew this was the right thing to do. to disclose the fact that the information was being improperly stored in ensuring there was nothing else there that had been improperly stored. president biden has been fully cooperative with the investigation and physically kind of opened the house to investigate top to bottom, to ensure that nothing else is being held there. so i think that they handled this correctly. once they discovered this problem to my mind, this is very different from a situation where it seems to be intentional. the national archives repeatedly requested the information. president trump repeatedly refused to provide information that was being requested and that is what led to the standoff and a court ordered investigation into what was being held and, you know,

actually opening the files and discovering that there is a lot of top-secret stuff being held there that should not have been. so to my mind, these are not equivalent, but it is very hard for i think people to see. up hear classified information being stored in both places and they think it must be the same thing. but it is not really the same thing. it has been quite different in terms of how successful it is. and i would be careful to say we do not know exactly what the documents are that were being held by president biden. and at the president's home. but from what we have heard so far, it does not seem to have been information that was classified at the same level of importance that the information that was being held by trump. host: because the attorney general is looking into both of these cases, what is the penalty for the possession of documents? not reaction, not, you know, you know claims of trying to get it back, just for holding onto them, what is the penalty?

ms. hathaway: if it was possession and unintentional. intent matters here. if it was unintentional possession of the documents, then, you know, probably they did not personally remove them. they were removed by staff. my guess is that prosecutorial discretion would suggest that there would likely be prosecution. but i think part of the reason that merrick garland had special counsel looking into this is that there is of course, you know, it is challenging for someone who works for the president to investigate both the former rival and potential future rival in the presidential race and his own divorce. so that is part of the reason he brought in special counsel. to be kind of distant from him politically and carry out the investigation and hopefully do a full investigation with a very objective point of view. and make a determination about the right way to proceed, whether there should be a

prosecution, given what they have discovered. host: our guest is an international law professor and served as a former pentagon special counsel here to talk about classification efforts of ntocuments. professor hathaway, thank you for your time. ms. hathaway: thank you for having me. >> documents cladogram's as classified were discovered at the indiana home of former vice president mike pence last thursday. during an fbi search of pence's residence, four boxes containing copies of administration papers were discovered with some documents bearing classified markings. the documents have since been taken into fbi custody with arrangements being made it to the national archives. in a letter written to the national archives, shared with the associated press, pence's lawyers stated that he understands the high importance of protecting sensitive and classified information and it stands ready to cooperate with any appropriate inquiries.

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