Clinton Confidential: A Close Look at the Rules That Govern What’s a Secret

The tranche of Hillary Clinton’s emails released Aug. 31 contains 150 messages containing classified information. That brings the total number to more than 200.

Let the spin begin.

“The Department does not know for sure if any information was classified at the time it was sent or received on the private email server Clinton used for work,” State Department spokesperson Mark Toner told reporters. “It’s not an exact science. When we’ve upgraded [a document’s classification], we’ve always said that that certainly does not speak to whether it was classified at the time it was sent.”

Toner’s remarks are at variance with how the classification system works.

(Full disclosure: Following the publication — during Clinton’s time as secretary of state — of my book critical of the State Department’s role in the Iraq War, the department unsuccessfully carried out termination proceedings against me. Instead, I retired voluntarily.)

There are specific rules establishing government-wide, uniform standards as to what should be classified. And though Clinton has said she sent no information via email that was classified at the time and received none marked that way, the “marked/unmarked” issue is codified in security law and regulation. What matters is the information itself, whether its potential release would harm the United States or assist its adversaries. Gold is gold, whether it is labeled or not.

In addition, if any of Clinton’s messages contained information that originated outside of the State Department, say something sourced from the CIA, then it is the originating agency alone which determines the classification of a document, not end users such as Clinton in 2010, or the State Department in 2015.

Lastly, since there is clearly information in some 200 Clinton messages that cannot be in an unclassified setting now, then it is obvious it should not have been in an unclassified setting then.

Of particular concern is that more than half of the now-classified Clinton emails consist of a special category: information shared in confidence by foreign government officials. The Department’s own regulations say this information must be safeguarded, and even require specialized markings in addition to the standard classification indicators such as “Confidential.”

It makes sense; if a foreign leader shares something, only to learn the information was available to a hostile intelligence agency on an insecure email server, she or he is unlikely to trust the United States with information in the future. In such instances, it is the source of the information (for example, direct from then-British Prime Minister Tony Blair) that is perhaps more sensitive than the information itself. Imagine the difference between “an anonymous official” calling the Afghan president untrustworthy, and Blair himself exposed as saying the same.

Asked whether Clinton followed the regulations on proper handling of foreign government information, the State Department spokesperson said, “I’m just not going to answer that question. It’s not our goal, it’s not our function.”

That is inaccurate. The State Department maintains a significant infrastructure in the Bureau of Diplomatic Security that does nothing else but monitor employees’ handling of foreign government and other classified or sensitive information. It is indeed a function of the agency.

The issue of foreign government information handling is of critical importance to the State Department, given its mandate to carry out the foreign relations of the United States; so much so that the Department argued it to help convict … Manning after [he] transferred a large number of State Department cables to Wikileaks. The State Department claimed the action significantly affected foreign governments’ confidence in exchanging information with the United States.

Manning’s leak of government files, not all classified, had a chilling effect, impeding American diplomats’ ability to gather information, a senior State Department official testified. The unauthorized releases made foreign diplomats and business leaders “reticent to provide their full and frank opinions and share them with us,” Undersecretary of State for Management Patrick Kennedy testified in 2013. “It’s impossible to know what someone is not sharing with you — and this is, in itself, I believe, a risk to the national security.”

With some irony, at the exact time the Manning cables appeared on the internet, Clinton was committing a similar act. Statute 18 USC 1924, “Unauthorized Removal and Retention of Classified Documents or Material,” sets the standard as moving classified information to an unauthorized location (a private email server) and does not require the information to actually make it into the wild (Wikileaks) for a violation to occur. It’s also the same statute, inter alia, under which David Petraeus was prosecuted.

The complexity of the classification issues regarding Clinton’s private email server are, in fact, why the decision to use one at all, in lieu of established official channels, remains an issue worthy of our attention, beyond the one of up-or-down criminality.

(Reuters.com)

This article appeared in print on page 11 of the September 7th, 2015 edition of Hamodia.