Fox News and NBC are reporting that Congress has been informed that Hillary Clinton’s unsecure home server contained information classified at levels higher than previously known, including classified Top Secret/Special Access. That would represent some of the most sensitive information to U.S. intelligence. I have held a TSSCI clearance since the Reagan Administration and I am again astonished by the remarkably bad judgment in the use of this server. In dealing with this type of information, it is generally restricted to SCIF and other highly restrictive access rules. Indeed, the limitations impose restrictions that have many of us grumbling constantly about the time and travel needed to deal with such documents in a safe and secure manner. CNN is reporting that “several dozen” new emails have been identified at the high classification level.
The Special Access material does not appear to be the same two Top Secret emails identified earlier among the hundreds of classified emails found on the server.
Charles McCullough, the intelligence community’s inspector general, said in a letter to the chairmen of the Senate intelligence and foreign affairs committees that he has received sworn declarations that cover “several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET and TOP SECRET/SAP information.”
Now here is the kicker. NBC says that one official involved in the investigation said that the special access program in question was so sensitive that McCullough and some of his aides had to receive clearance to be read in on it before viewing the sworn declaration about the Clinton emails.
Clinton has insisted that “I never sent classified material on my email, and I never received any that was marked classified.” The key of this spin is again the word “marked.” 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. I have had a TS/SCI clearance since Reagan due to my national security work and have lived under the restrictions imposed on email and other systems. The defense is that this material was not technically classified at the time that it was sent. Thus it was not “classified” information. The problem is that it was not reviewed and classified because it was kept out of the State Department system. Moreover, 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. For example, there is not a person standing next to the President with a classification stamp in the Oval Office. However, those communications are deemed as presumptively classified and are not disclosed absent review. Under the same logic, the President could use a personal email system because his text messages by definition are not marked as classified. This is the whole reason that Clinton and others were told to use the protected email system run by the State Department. We have spent hundreds of millions of dollars to secure such systems.
The fact that an email was not marked classified could be a defense to a criminal charge but it does nothing to address horrendous judgment shown in using a private email system exclusively as one of the top government officials (and a chief target of foreign intelligence).
The presence of the highest classified material on the server would magnify the scandal further for Clinton, who has run on her experience and judgment in the national security area.
Clinton campaign spokesman Brian Fallon responded to the story with the same point that nothing was actually marked classified: “This is the same interagency dispute that has been playing out for months, and it does not change the fact that these emails were not classified at the time they were sent or received. It is alarming that the intelligence community IG, working with Republicans in Congress, continues to selectively leak materials in order to resurface the same allegations and try to hurt Hillary Clinton’s presidential campaign.