Presidential candidate Hillary Clinton maintains she never sent classified information via email as Secretary of State, as questions arise over her instruction to have a talking points memo sent to her in 2011 by a nonsecure system after it could not be sent by secure fax. (Reuters)

George Stephanopoulos: “You know, you’ve said many times that the emails were not marked classified. The non-disclosure agreement you signed as secretary of state says that that’s really not that relevant. It says classified information is marked or unmarked classified and that all of you are trained to treat all of that sensitively and should know the difference.”

Hillary Clinton: “Well of course and that’s exactly what I did. I take classified information very seriously. You know, you can’t get information off the classified system in the State Department to put on an unclassified system, no matter what that system is. We were very specific about that. And when you receive information, of course, there has to be some markings, some indication that someone down the chain thought that this was classified and that was not the case.”

— exchange on ABC’s “This Week,” Jan. 31, 2016

Many readers continue to ask questions about Hillary Clinton’s private email setup and whether she mishandled classified information. We have looked at this issue in the past, but the reader interest spiked again after the revelation that seven email chains contained “top secret” information and would not be released.

As the saga has dragged on, Clinton’s terminology has become ever more nuanced. When she first discussed her private-email arrangement in detail last March, her staff distributed a Q&A that flatly stated that no classified material was sent or received by Clinton at her private email address. Now she says the emails were not marked classified: “When you receive information, of course, there has to be some markings, some indication that someone down the chain thought that this was classified and that was not the case.”

In the ABC News interview, she cited the opinion of Sen. Dianne Feinstein (D-Calif.), the ranking member of the Intelligence Committee: “There is no classified marked information on those emails, sent or received by me. Dianne Feinstein, the ranking member of the intelligence committee, who’s had a chance to review them, has said that this email chain did not originate with me and that there were no classification markings.” (Feinstein did release such a statement.)

So what’s going on here?

The Facts

The nondisclosure agreement

Clinton did sign a Classified Information Nondisclosure Agreement, in which she pledged to safeguard classified information whether “marked or unmarked classified information, including oral communications,” as defined by Executive Order 12958. (That was later superseded by Executive Order 13526.)

Interestingly, in that executive order, the secretary of state is given the authority to classify and declassify information at the “top secret” level. In other words, Clinton had presidential authority to decide what State Department information was classified or not.

“It is not simply that she would ‘know the difference’ between classified and unclassified information — it was up to her to make the original determination,” said Steven Aftergood, director of the project on government secrecy at the Federation of American Scientists. “This authority, however, did not extend to information generated by other agencies, such as CIA.”

(Note: A number of readers have asked about an email in which Clinton asked to have classified markings removed regarding some talking points, and have it emailed unsecured. In theory, under the executive order, she had the authority to declassify the material, since it originated in the State Department. However, a congressional official said the indications are the material ultimately was transmitted appropriately.)

Classified and unclassified systems

The State Department has both classified and unclassified systems — known informally as the “high side” and the “low side.” The classified system has tight controls, often housed in what is known as a Sensitive Compartmented Information Facility (SCIF); it is not possible to “cut and paste” from the classified system into the unclassified system. Instead, one would have to extract the information from the classified system and then reenter it manually into the unclassified system. Thus far, no one has alleged that happened.

Instead, congressional aides say, the concern centers on the fact that secret information was revealed as part of an email exchange. In at least one case, the discussion started with an aide forwarding a newspaper article; then in subsequent exchanges, aides revealed sensitive details as they discussed (for instance) the shortcomings of that public report. Ultimately the email chain ended up in Clinton’s email box. If the email chain was released, some intelligence officials believe, it would confirm aspects of a secret program.

Clinton’s private email system was designed to deal with the unclassified communications, similar to the unclassified state.gov email account. Clinton claims it was for convenience; others suspect it was to prevent reporters or political opponents from easily obtaining her emails through the Freedom of Information Act.

“The use of a home server was the original problem that spawned all of these continuing concerns,” Aftergood said. “Everything that the secretary of state does or says is potentially sensitive, even if it is unclassified, and so it ought to have been protected accordingly. The home server also complicates or undermines records management and document preservation. It was a mistake.”

Clinton’s private email system was discovered when the House Select Committee on Benghazi sought her emails at the time of the 2012 attacks and initially was told none could be found. Ironically, if Clinton had operated from a state.gov account, the inquiry would have ended once the Benghazi emails were turned over. Instead, Clinton has been forced to turn over all of her work-related emails for public release — precisely the situation she presumably had hoped to avoid.

The ‘top secret’ communications

So how could information sent on an unclassified system turn out to be “top secret”? The answer is easy — when State Department officials review it in response to a request for public release.

“State’s upgrading process is retroactive,” said one congressional aide. “It’s not a sign of wrongdoing but rather the normal process used by State under all administrations before unclassified documents are made public (usually via FOIA). Often an unclassified email will be retroactively classified to protect foreign and diplomatic communications, for example.”

Yet for intelligence officials, the Clinton controversy has exposed serious shortcomings in how the State Department handles sensitive communications, another congressional aide said. In the view of intelligence officials, State Department officials have been sending highly sensitive information on the unclassified system — with the expectation that if a FOIA request is made, department officials could then redact the emails and prevent any classified information from becoming public.

In other words, at State, the basis for classification appeared to rest more with FOIA than the president’s executive order — which some intelligence officials believe is backward.

Indeed, when State released the first batch of Clinton emails, some in the intelligence community were upset at what had not been redacted in a pair of released emails. As a result, other members of the intelligence community demanded a seat at the table as future redaction determinations were made.

The various intelligence agencies since have been arguing about what should be disclosed, with at least seven email chains (22 separate emails) — and possibly more — labeled as unfit for any public disclosure. Rep. Chris Stewart (R-Utah), a member of the House Intelligence Committee who says he has reviewed the emails, told Fox News on Feb. 3 that the emails “do reveal classified methods, they do reveal classified sources, and they do reveal human assets.” Other sources who have viewed the emails do not describe the emails as strongly, though one official said Clinton’s aides might have put their security clearances at risk.

Different government agencies often may disagree about the level of classification. One good example are the memoirs of former secretary of state Condoleezza Rice and former vice president Richard B. Cheney. Both discussed a policy debate over North Korea. Cheney mentioned traces of enriched uranium on materials obtained from North Korea — which had been reported years earlier in The Washington Post — after receiving clearance to do so from the CIA. But to her frustration, Rice was not able to mention the uranium, though she wanted to, because the State Department refused to give her clearance — even though the information was already in the public domain.

In one famous case, journalist James Bamford in 1978 received 250 pages of previously classified documents regarding a Justice Department probe of illegal wiretapping performed by the National Security Agency. Two years later, the NSA convinced a new attorney general that the information should be reclassified. The government then demanded that Bamford return the documents or face prosecution. (He published the information anyway and no charges were brought.)

Update: NBC News reported that the State Department Inspector General concluded that classified information also had been transmitted over the personal email account of Colin L. Powell and also the personal accounts of aides to Condoleezza Rice.

Markings

Finally, we come to Clinton’s excuse — that none of the emails were marked classified. This is a bit of a red herring. Anything marked classified could not be sent through an unclassified system — and officials are supposed to know enough about the sensitivity of communications to recognize material that could be considered classified under the executive order.

The executive order, for instance, says all foreign government information should be presumed to cause damage if disclosed without authorization. In reviewing Clinton’s emails, for instance, the State Department redacted every page of a private communication to Clinton from then-British Foreign Secretary David Miliband.

“It is entirely possible for previously unclassified information to be redesignated as classified, as long as it has not already been officially released to the public,” Aftergood noted. “It is also true that the question of public disclosure can drive a decision to classify information that had not been classified up to that point.”

The Pinocchio Test

Clinton is in a pickle here, largely of her own making.

The emails in question were sent on an unclassified system — as they would have been if she had followed standard protocol and used a state.gov account. Under State Department practice, a request for public release of her emails would have been subject to the same classification discussion currently underway. Any “top secret” communications would have been withheld.

However, if she did not have a private server, intelligence officials now would not be scrutinizing every single Clinton email for possible public release. That has heightened the scrutiny of what should not be disclosed — and what was discussed in the unclassified system in the first place.

The State Department’s unclassified system is not perfect — the Russians have hacked it — but Clinton’s home server was outside official control or supervision. Moreover, unlike state.gov, it did not have dedicated government security personnel responsible for it.

Clinton said, “When you receive information, of course, there has to be some markings, some indication that someone down the chain thought that this was classified and that was not the case.” But that’s only half of the story. Even without markings, officials are supposed to recognize that information passed through an unclassified system might be deemed as classified and should take steps to protect it.

The Clinton campaign has argued that some intelligence officials are now engaged in a game of overclassification. That could well be the case; it’s impossible to know without access to emails that may not be released for years. But this debate would not even be taking place without the decision to set up the private server in the first place.

Two Pinocchios

 


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