Hillary Clinton has insisted throughout the ongoing email scandal on two points repeated as a virtual mantra: there was no classified material sent on her unsecured personal email system and she was in total compliance with the law. I have questioned both points and noted that she is really saying that no “marked” classified material was sent (a less than compelling argument) and she is speaking of federal criminal laws as opposed to the clear official policy not to use such personal servers. It appears clear that some of this material was indeed classified and, as I discussed this week on NPR, the policy against doing what she did was clear and strong at the time of her tenure at State. Now, United States District Court Judge Emmet Sullivan has weighed in with comments this week that Clinton clearly did violate State Department policy and that violation caused much of the difficulty in retrieving her communications while in office.
What is now clear is that Clinton used her personal server exclusively (something that is extremely rare) and that she conducted official business of State over the unsecured system (including the transmission of material now deemed classified).
I have previously discussed why that explanation is less than compelling, particularly for anyone who has handled sensitive or classified material. As I discussed earlier, virtually anything coming out of the office of the Secretary of State would be considered classified as a matter of course. As Secretary, Clinton received the highest level of intelligence and there is always a concern that second generation discussions will be influenced or reveal such information. That is why State Department people are asked to conduct official business on the secure system. Most high-level communications are treated as classified and only individually marked as classified when there is a request for disclosure. You do not generate material as the Secretary of State and assume that it is unclassified. You are supposed to assume and treat it as presumptively classified. Otherwise, there would be massive exposure of classified material and willful blindness as to the implications of the actions of persons disregarding precautions.
The policy referenced by the Court was evident in a communication that out under Clinton’s name to all State Department employees that warned them to “[a]void conducting official Department business from your personal email accounts.” There is also a 2005 department manual covering the transmitting of information that is “sensitive but unclassified.” The manual said that department-related email should go through servers authorized by the department.
In the latest hearing on the Freedom of Information Act lawsuit, Judge Sullivan noted “We wouldn’t be here today if this employee had followed government policy.” The Court noted that the failure to comply with clear policies had complicated the State Department’s ability to respond to requests for records. He further ordered the server (which was only recently turned over by Clinton after months of refusal) to be examined for any response emails. That server was reportedly wiped clean before it was turned over by Clinton staff members though it may be possible for some of the material to be retrieved.
The Justice Department and State Department have been opposing all efforts to secure the information. Justice Department lawyer Peter Wechsler argued that the open records law normally doesn’t allow for searches of government officials’ private accounts, but Judge Sullivan said that this was a different situation because “there was a violation of government policy” and “We’re not talking about a search of anyone’s random email.”
In the FOIA lawsuit, Judicial Watch is seeking records about the employment arrangements of longtime Clinton aide Huma Abedin, who served Clinton’s deputy chief of staff at the State Department but later moved to a part-time position while also doing private consulting work.
A tense moment arose when Wechsler said he did not know whether the FBI was actually in possession of Clinton’s server or thumb drives. “You’re a Justice Department attorney?….You can’t tell me? . . . I need to get an answer . . . We’re tiptoeing on the head of a pin because there’s only one government.”
“Mishandling Classified Information
Executive Order 13526 and 18 U.S.C Sec. 793(f) of the federal code make it unlawful to send of store classified information on personal email. Casey Harper at The Daily Caller delved into this angle:
“‘By using a private email system, Secretary Clinton violated the Federal Records Act and the State Department’s Foreign Affairs Manual regarding records management, and worse, could have left classified and top secret documents vulnerable to cyber attack,’ Cause of Action Executive Director Dan Epstein said in an email to reporters.
‘This is an egregious violation of the law, and if it were anyone else, they could be facing fines and criminal prosecution.”
http://www.ijreview.com/2015/03/264655-3-federal-laws-hillary-may-violated-secret-email-accounts/
Ross … if Bush 43 ruined it for whistle-blowers, how did I manage to be one in DOD & DA (successfully) three times under his watch? Of course I didn’t use “public” means, I used my Congressional Representative who did his job and kept my confidence…to this day in fact. I try to not use the name “Snowden” or “Manning” in civil conversation…they both had access they should never have had in the first place and took advantage for personal reasons. I assure you, from personal experience that there really are ways to do it without public venue….if your goal to correct a wrong, stop it cold, not just publicity. I corrected wrongs, law-breaking and misappropriation, without a shred of publicity. Show me the real corrections either of the punks actually effected? They’re just punks, so I blame their managers and overseers. They should all be sacked. Lazy or corrupt IT DBA’s are the real problems….when they fail to vet Roles & Permissions as I’ve said before. Only in that sense were either of the punks scapegoats.
Paul Schulte:
The Bush Administration systematically destroyed all (non-public) channels of reporting waste, fraud and abuse for legal whistleblowing. Snowden saw innocent citizens, like yourself, being harmed and Snowden took a supreme loyalty oath to uphold the U.S. Constitution and stop that practice which harmed people like you and me.
Furthermore since World War Two, U.S. Supreme Court Justice/Attorney General Robert Jackson helped create the legal precedent of the “Nuremberg Defense” used for Nazi war criminals. That legal precedent means that subordinates (prison guards, etc) won’t be protected with a “just following orders” legal defense for committing war crimes.
In other words laws of war legal precedent required Snowden, Manning, Kiriakou and others to stop his superiors if they were committing war crimes.
If the Bush Administration had not destroyed that non-public whistleblower path, there wouldn’t have been so many LOYAL whistleblowers like Snowden in the first place. There was also Monica Goodling and the violations of the Hatch Act where they tried to purge federal agencies.
Ross – I am in a non-fiction book club with a retired intelligence officer who used to command the places that Snowden was at. If Snowden had download material for his first place and then sent it to Wikileaks I could support him being a whistle-blower. However, he then went to Hawaii, where my friend tells me the security is not as tight, and downloaded even more material. At this point he is a traitor.
We know at this point that Hillary sent classified material to Sidney Blumenthal. I am not sure if that makes her a traitor or an idiot.
I am most amused by the recent revelation by Clinton folk or a message marked “unclassified”…problem is the marking is in the wrong place (above the addressee name)…WTF is going on? Many years in DOD/DA and I never saw a classification marking in that location, but what do I know, eh?
MENA Arkansas– was Bill Clinton using his governor’s powers to help the CIA engage in felonious drug smuggling? I’m sure he got the files scrubbed when he was pres, but, here we have a glimpse into his wife’s action in office, which shows her cavalier disregard for the law and national security.
I hope democrat primary voters find a better candidate. Then again her political machine is good at faking signatures and stuffing the primary ballot box so who knows, she may get it after all. Republicans are probably praying that she wins it. Trump could crush her in a general election. People are sick of arrogance like hers. I would vote for Biden over her any day of the week. Or even Bernie Sanders. ABH– anybody but Hillary.
Thanks for the link!