Questions surrounding news that President Joe Biden and former Vice President Mike Pence have disclosed possession of classified documents in their homes justify interruption of this column’s weekly focus on landmark Supreme Court rulings. Curious readers have asked about the constitutional, legal and historical foundations of government authority to classify documents.
First things first. Let’s not confuse the voluntary and cooperative disclosure of possession of classified documents by the Biden and Pence camps with the deceit and obstruction that characterized former President Donald Trump’s efforts to undermine the Justice Department’s investigation of his secretive possession of classified documents at his home in Mar-a-Lago. In the scheme of things, at least this far, Biden and Pence are apples to apples, while Biden and Pence are apples to Trump’s oranges.
The U.S. Supreme Court has said little about the constitutional authority to govern classification of documents, but what it has said points to executive control of the secrecy system by virtue of the president’s role as Commander in Chief of the military. Yet, questions abound. The Constitution is silent on the repository of authority to classify documents. Secrecy in a democracy, moreover, is guaranteed to be a source of enduring contention.
Nobody disputes the necessity of secrecy in the affairs of state. John Jay, who possessed as much knowledge about foreign affairs as any of his founding colleagues, wrote in Federalist No. 64: “So often and so essentially have we heretofore suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective if no attention had been paid to those objects.” The only provision in the Constitution that addresses secrecy is found in Article 1, section 5, which grants to Congress, if it wishes, authority to keep its own proceedings secret.
In the 1790s, the Federalists — the party of Washington, Hamilton and Adams — interpreted the Constitution as it applied to foreign affairs as authority for executive secrecy when it came to negotiations and matters of intelligence. There was, however, a clear understanding in the first decade of American politics that the principle of “comity” between the president and Congress required presidential permission from Congress to withhold information from the citizenry. That practice worked efficiently, and the conflicts that arose typically reflected, not interbranch disputes, but rather the demands of aggrieved citizens who feared suppression of information.
The demands of democracy and the principles of self-governance were not to be denied. Democracy encouraged the principle of disclosure. From the beginning, our founders embraced the belief that disclosure and transparency represented the best remedies for resolving policy disputes. James Madison, chief architect of the Constitution, spoke for the generation that conceived the republic: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance,” he wrote, “and a people who mean to be their own Governors must arm themselves with the power which knowledge gives.”
Historic conflicts between secrecy and publicity have erupted most prominently during times of war when both principles have been urged with urgency. In wartime, governmental calculations are inspired by fears of espionage. Control of information is vital. But the fact of war focuses the citizenry; fear of death and the goal of survival become paramount. Because Americans are not, to borrow from Thoreau, mere “lumps of clay,” but rather thinking, reasoning creatures, they prefer the light of knowledge to the impotence of darkness and demand information that empowers them to judge official strategies and decisions of war.
Until World War II, the United States did not have a formal classification system. Presidents, generals and admirals protected military secrets in a variety of ways. In World War I, General Pershing, headquartered in France, instituted the markings of “Secret, Confidential and For Official Circulation Only,” in imitation of his French and British allies. For its part, Congress decided against passage of a statute that would have made it a crime to communicate national defense information that “might” be useful to the enemy.
President Franklin D. Roosevelt drew order from the chaos that surrounded questions of handling secrets when he recognized the threat posed by the espionage capabilities of the Germans and Russians, then united by the Hitler-Stalin pact. On March 22, 1940, Roosevelt issued an executive order creating a military classification system. FDR, who preferred to avoid assertions of inherent executive power, invoked as authority a 1938 statute that empowered the president to prohibit the creation of maps, photographs or sketches of vital “installations or equipment.” The test, FDR explained, “is what the Commander in Chief of the Army and Navy thinks it would be harmful to the defense of this country to give out.” This test, he added, was what would be shared with the public, since congressional committees were already receiving this information in executive session.
This practice of executive determination of what might be shared with the citizenry has been adopted by presidents of both parties. With the assumption by America of global responsibility for maintaining peace and security against international aggression, the concept of national defense has become an ever- expanding net. The result is classification, in various categories, of roughly 50 million documents. And counting.
David Adler is president of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality and civic education. This column is made possible with the support of the South Dakota Humanities Council, South Dakota Newspaper Association and this newspaper.
(13) comments
Maybe if FBI/DOJ would of handled known cases of document security in manner they are supposed to be done we wouldn't have these cases. Hillery Clinton and her aides would be good example. Seems our Government agencies are dropping their job duties. One can trace this mess in Ukraine with Russia back to the Clinton era and walk it forward with old Joe Biden and MIC (military industrial complex) really poking the Russian Bear. Odd how one doesn't hear the local Yankton Ukrainian Brigade crowing how Putin getting beat up lately. Putin is doing exactly what China wants it to do. Drain the USA/Nato military resources and Putin wins by getting Biden to continue to print money and devalue the USA dollar. Soooooo how is the "cooling inflation" treating all of you Biden fans? How is the current utility bills going in this cold snap?
You really don’t get it do you, old man?
Mr. T, Gimme and the rest have moved on.
Mr. T explained as he left, and Gimme left us with their explanation in doggerel.
I’ll remind you, since you seem to forget things easily:
*️⃣“Mama once told me
there’s things you avoid.
No psychology here.
No Sigmund Freud.
“Life is good.” she said,
“though sometimes it’s cruel.
But, Darling don’t waste it
debating a fool.”
I wish I had listened
that day long ago.
Some things take experience
before you can know.”*️⃣
Mr. Skow, I too share your derision of the “Yankton Ukrainian Brigade.”
So I would like to form a “Yankton Tucker Carlson Brigade” to go fight for our Russian friends.
We always hear about the Americans going to go fight for the Ukrainians. But it’s time for Americans to go fight for the Russians.
I know you’re too old to fight. But would you consider bankrolling this effort?
Your courage in posting your real name makes it easy to find you. I would be willing to travel to Colorado to discuss this with you.
Give me the word and I’ll head out tomorrow!
WWG1WGA
Better hurry, Qgop.
Putin is fast burning through his Russian “cannon fodder.”
And the Europeans are now sending tanks, and we will soon send our Ground Launched Small Diameter Bomb (GLSDB), which will double Kyiv's current strike range to hit even Crimea itself.
You and Larry don’t have a moment to lose.
And you might consider renaming your outfit “The Larry Skow Brigade” after he reaches into his deep oil man’s pockets and bankrolls your “Tucker Carlson Brigade.”
Meanwhile, on the other side of the globe, Larry’s newfound love, ❤️ 💕 the Chinese, are watching the United States foreign policy continue our containment of their expansionism.
The U.S. has just reached a new military base access agreement in the Philippines.
Maybe the “Larry Skow brigade” should head to China?
Whaddya think, Qgop?
Would you rather die fighting for Russian authoritarianism or Chinese communism?
Probably should be up to Larry after he reaches into his deep pockets, and puts his money where his mouth is.
Hey all you clueless that whined complained and told untruths about collusion on the Hunter Biden Laptop. What ya think about Mr. Hunter Biden now saying YEP THAT MY COMPUTOR! So ya all going to issue apology to all you said was lying and full of BS? Or should all ya called crazy on that subject just line up on Main street of Yankton so you can Kiss all the butts of those you wronged all at once. Amazing the things falling apart on democRATS side.
I just read Mr. Farmers post, Larry. I’ll copy it to you:
“Did you know the Labor Department reported today that the unemployment rate fell to 3.4 percent, the lowest in more than a half-century?
Probably not. Fox News is still fussing over Hunter’s Laptop.
So here it is.
The U.S. economy generated 517,000 jobs in January, a very strong number that shows the remarkable resilience of the labor market under the Democrats.
In your man Trump's ENTIRE four years, he didn’t accomplish anywhere near what Biden has done in TWO.
I love the way that we see “things falling apart on democRATS side.“
Can’t wait to see how the investigation into hunters Laptop goes.😏🤣
Mr. Skow did you miss my posting, Sir?
There must be thousands if not millions of younger versions of patriots like you, Voice and Abe eager to go fight for Putin against the N*zis in Ukraine.
I am one of them. Please help me organize a “Yankton Tucker Carlson Brigade” to go fight for our Russian friends.
You’ve got the money and your often stated desire to be “part of the solution.”
I want to be part of that solution, too.
I know where you live, so you wouldn’t have to reveal it on this forum.
Please, Sir, just say the word and I’ll come to Colorado to discuss this with you.
Thank you Truth for opening the door to us proud democrats to point out ALL the accomplishments of our great President Biden. Things like securing our southern border and is now allowing only 7,000 migrants per day to enter our country. He has put us at 40 year highs in inflation. He has raised our gas prices to record levels. He has driven our debt to over $31 trillion. He has allowed access to the Chinese and several middle eastern country spies to classified documents. He and his son Hunter have made millions off of deals with China including selling our strategic oil reserves to Chinese companies he and Hunter own parts of. He has forced vaccinations onto people and closed businesses, churches, schools and even people's homes. He has forced masked wearing on our children. He has set our school children years behind in their learning by forcing school closures and mask wearing. He has driven the cost of everything we purchase to new highs. He has created shortages in the food chain including baby formula. He has raised taxes on all of us even though he said he was going to raise them only on "the rich". He has driven natural gas and electricity prices to record levels. He has driven interest rates to levels not seen in decades. He has driven the crime rate to levels not seen in decades. And all in two years as you point out Truth. Once again, thank you for putting out there our President has done so much for all of us.
See, 👀 Larry! I’m going to win my bet 💰‼️
Everyone’s on to VoiceforAll’s silly game and he just powers through anyway.
I sure don’t understand his pathology, but I know a good wager when I see one…
Wanna make a side bet?
As we all look forward to our great President Biden's much anticipated State of the Union address, I am so excited as a democrat to get to hear in the President's own words the whole truth regarding all the great accomplishments that are happening each and every day under his guidance. Our country is in such an amazing place right now, we as a party have so much to be proud of, unfortunately I feel like a one person cheerleading team and am the only proud democratic on this forum. Looking back through many, many comments from the so called democrats on this forum, and the majority of them are spent attacking other commentators and not propping up and pointing out all the great accomplishments of our great leader and the party he leads. I for the life of me don't understand why that is, we have so much to talk about, so much of our truth to get out there, because we all know what is actually happening and what is being reported aren't the facts, things are great in our country and we all know it. So come on my fellow democrats, get off the negativity bus and let's start talking about the awesome and amazing things President Biden, Chuck Schumer, Nancy Pelosi, Alexandria Ocasio-Cortez, Ilhan Omar, and so many, many other great democrats that have shown such dignity, so much pride, so much maturity in these last two years. I just can't wait to hear President Biden's clear, concise, truth filled, transparent, taking full responsibility speech, it just gives me goosebumps in anticipation.
As a proud democrat, I can't believe I left out the great wordsmith, our one and only Vice-president Harris, from the list of democrats that I am so proud of in my previous post. So let me just point out to all the naysayer republicans that say VP Harris isn't doing her job, from a article written today:
"Vice President Kamala Harris has helped companies direct investments outside the United States and into the economy of Central America in a move that the Biden administration claims will decrease record levels of illegal immigration.
Harris, who serves as the administration’s border czar, has frequently argued that the federal approach to border security should center upon addressing economic instability, climate change, and other “root causes” that purportedly lead to illegal immigration. She has galvanized a combined $4.2 billion in “private sector commitments to create economic opportunity in northern Central America,” according to a fact sheet from the White House."
$4.2 billion, just a drop in the bucket as far as I am concerned, after all, since our poverty rate is basically zero in our own nation and we have basically zero people looking for food, clothing and places to live in our own country, who can argue with our czar making sure we are funneling $4.2 billion to another country? Outside of sending billions and billions of dollars to fight the war in Ukraine, this is probably the second best money companies in our country have ever spent since we all know that immigrant crossings have done nothing but drop since VP Harris was appointed the border czar by President Biden. Latest figures show only 7,000 immigrants a day are crossing now, this number is so much lower than when the previous administration was in charge. So to summarize, $4.2 billion to foreign countries, only 7,000 immigrants a day crossing, yet another complete and total success story from our President, Vice-president and fellow democrats. Thanks goodness we have people like these in charge of our country.
I don’t understand Voice’s pathology either, Friedrich.
But I remember when he was “VoiceforAll,” he posted several times every day with his lists of grievances which were so evident and egregious (to him) that he told us there would be a big red wave in the midterms that would set everything right.
When that didn’t happen he was so humiliated he disappeared for months.
Now he's back with his usual list of grievances.
But he’s taking out an “insurance plan” against humiliation in the 2024 election by pretending to be a new entity with this parody of a Democrat.
A very poor parody, I might add.
But I am assuming his purpose still is to change minds.
But it seems apparent to me that this goal is greatly hindered by his weird posturing.
For anyone who doesn’t know it’s VoiceforAll speaking here, there is a serious lack of clarity over what his point of view really is.
So it’s both a sad act and weak argument for his actual political views.
I don’t have any money in the game. But I think you’re right. He’ll keep it up.
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