We have been closely following the Clinton email scandal and this morning additional information was leaked on the 22 “top secret” emails withheld by the States Department An official is quoted as saying that some of those emails contained “operational intelligence” and jeopardized “sources, methods and lives.” While I agree with the Clinton campaign that these leaks are themselves problematic (both in terms of their timing and their disclosures from an ongoing investigation), I have long maintained that this was a serious scandal and that Clinton’s evolving defense does not track with national security rules or procedures. I consider the decision to use exclusively an unsecure server for “convenience” to be a breathtakingly reckless act for one of the top officials in our government. I am also deeply concerned about the level of “spin” coming from the campaign that is misrepresenting the governing standards and practices in the field. Much of what has been said in defense of Clinton’s use of the email system is knowingly misleading in my view.
In addition, Rep. Mike Pompeo, R-Kan., who sits on the House intelligence committee, “suggested the military and intelligence communities have had to change operations” due to the presumption that Clinton’s emails were compromised.
Since this is in a long-standing field of practice, I have been watching the scandal unfold with particular interest. I have previously noted that the decision of Clinton to use a personal server showed incredibly bad judgment that put classified information at risk. The defense that the information was not marked, which the campaign has been using recently, does not address the fundamental issues in the scandal.
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. Indeed that understanding was formally agreed to by Clinton when she signed the “Classified Information Nondisclosure Agreement,” or SF-312, which states that “classified information is marked or unmarked classified information, including oral communications.” 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. Classified oral communications are not “marked” nor would classified information removed from secure systems and sent via a personal server. Likewise, classified oral communications that are followed up with emails would not be “marked.” 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.
What is equally curious is the decision by Clinton to double down in the last town hall and reject the claim that she used “poor judgment” in using an unsecure system. To say that you decided to risk confidential and classified communications for “convenience” is hardly a compelling case for someone who is running on her national security and foreign affairs experience.
The reason Mrs. Clinton set up her own server was that all the Secretaries of State who had just come before her had done the same thing. Why she chose to ignore that the rules had changed is a mystery.
I look forward to seeing the actual results published instead of being leaked on a daily basis. Is there a “there” there? I know that the folks with CDS will swear there is regardless of the evidence or outcome of all this.
I do think the Republicans have their timing a bit off. Former and future felon Darrell Issa, (who began his career as an arsonist and car thief), has admitted outright that his entire purpose in holding hearings has been to damage Mrs. Clinton. I’m surprised they didn’t plan to wait until she won the nomination and then go into assault mode. If she drops out now, either Bernie or Biden will just take it in a straight sweep.
Oh, and Karen, do you have any real evidence that President Obama exposed Dr. Afridi? Because everything I can find says the Pakistani secret service found him on their own.
The amount of self-deception required to convince one’s self that Hillary did nothing wrong is astounding.
Clinton’s Emails: A Criminal Charge Is Justified
Hillary’s explanations look increasingly contrived as evidence of malfeasance mounts day by day.
By Michael B. Mukasey
Jan. 21, 2016 6:32 p.m. ET
Excerpt:
No criminality can be charged against Mrs. Clinton in connection with any of this absent proof that she had what the law regards as a guilty state of mind—a standard that may differ from one statute to another, depending on what criminal act is charged.
Yet—from her direction that classification rules be disregarded, to the presence on her personal email server of information at the highest level of classification, to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge—it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.
This is the same charge brought against Gen. David Petraeus for disclosing classified information in his personal notebooks to his biographer and mistress, who was herself an Army Reserve military intelligence officer cleared to see top secret information.
The simple proposition that everyone is equal before the law suggests that Mrs. Clinton’s state of mind—whether mere knowledge of what she was doing as to mishandling classified information; or gross negligence in the case of the mishandling of information relating to national defense; or bad intent as to actual or attempted destruction of email messages; or corrupt intent as to State Department business—justifies a criminal charge of one sort or another.
But will it be brought? That depends in part on the recommendation of FBI Director James Comey, a man described by President Obama, at the time the president appointed him, as “fiercely independent.” If no recommendation to charge is forthcoming, or if such a recommendation is made but not followed by the attorney general, what happens then?
Would the public stand for it? My guess is not. However, my guess is also that we won’t be put to that test because our public officials will do their duty.
http://www.wsj.com/articles/clintons-emails-a-criminal-charge-is-justified-1453419158
R.B.,
One thing is absolutely clear: She was required by law to use the State Department system for State Department work…..period. Everything else follows from that.
What happened when Obama bragged about how we caught Bin Laden by using a doctor who took his blood sample while giving vaccines?
Well, now polio is on the rise because the locals no longer trust vaccination efforts, and the doctor was imprisoned and tortured.
There are very good reasons for keeping some details classified. My own father would never reveal any formerly classified information unless I can present to him proof that it has become unclassified. “I can neither confirm nor deny”…
Gen Petraeus was criminally charged, sentenced to probation, fined 6 figures, resigned from the CIA, and was in very real danger of losing one of his four stars after a lifelong successful career in the military. All this for the mishandling of classified information. He made a terrible decision and was punished for it.
Clinton mishandled classified information, deliberately, for years , lied about it, and then tried to cover the crime by wiping her server clean.
The law should apply the same to everyone.
I do not believe that she used a personal email server for “convenience.” What was convenient about maintaining your own server and having to use another company to back it up, instead of just using the State email that was required?
The only plausible explanation is to control any information on her correspondence she would have to turn over. Having weathered several scandals that could easily have been career-ending, she wanted control of the narrative of any future, unforeseen missteps.
And she would have reason to believe she could break the law in order to do this, because we do not hold our government responsible. Voters will use the “yeah but” reasoning to keep voting for corrupt politicians. We have not given politicians any reason to believe they will be held accountable.
Our Duopoly does not seem to produce the best leaders. On the one hand, the Democrats have a Socialist who thinks a 90% tax rate is not too high. On the other, they have a corrupt Establishment politician who’s also beholden to special interests. The Republicans have someone who calls female journalists bimbos and thinks their period is relevant to their job performance.
Ugh. Maybe this will create an opportunity for other parties to actually have a chance.
Karen – if you have worked with enough females their cycle is important to the job, unless you are doing line work. I have had female managers who made it very apparent when they were having their period. It affected them and their staff.
Re: Olly
Think that is the problem, there is no clear protocols and “unequal” enforcement. Each agency has it’s own system and cherry-picks which violators it will punish (unequal enforcement is a 14th Amendment violation also covered under federal criminal statutes).
According to the “Thomas Drake luncheon” video in March 2013 at the National Press Club (www.press.org), only a small handful of top managers even have the authority to classify a small percentage of documents – apparently most people that do the classifying really don’t have that authority to do so. Most documents don’t meet the secrecy standard.
Using a Fred Flintstone analogy: it appears that an agency “Grand Poobah” makes up the rules and enforcement as they go along.
Regardless of the means of transmitting classified information, following established protocols should never be optional. For the umpteenth time, no one is above the law.
Re: Ken Rogers @1:40pm today
Great words of wisdom by James Madison. Thanks for posting!
Email and electronic communications has never been secure means of communication and may never be in the future. Any really important information and legitimate secrets should never use email.
Most (not all) so-called “classified” information probably isn’t legitimate, that’s why they use email.
Paul & Darren…Exactly
FBI’s Clinton email probe expands to public corruption track….FBI Kills 2 birds with 1 stone.
The FBI investigation into Hillary Clinton’s use of private email as secretary of state has expanded to look at whether the possible “intersection” of
Clinton Foundation work and State Department business may have violated public corruption laws.
This new investigative track is in addition to the focus on classified material found on Clinton’s personal server.
The FBI agents are investigating the possible intersection of Clinton Foundation donations, the dispensation of State Department contracts and whether regular processes were followed.
Although potentially damaging to her political prospects, with her connections, Hillary can probably expect to ‘scape serious whipping by the DOJ insofar as criminal charges are concerned.
Now, if she were a whistleblower, e.g, Bradley Manning, rather than a loyal member of the USG Elite, like David Petraeus, that would be a whole ‘nother story:
“Retired General, Ex-CIA Chief David Petraeus to Receive No Further Punishment
By Phil Stewart and Idrees Ali, Reuters
31 January 16
“U.S. Defense Secretary Ashton Carter has decided not to impose further punishment on David Petraeus, a former U.S. military commander and CIA director who admitted sharing classified information with his mistress, according to a letter seen by Reuters.
“The short letter was sent by Stephen Hedger, the assistant secretary of defense for legislative affairs, and the decision is in line with an Army review.
“Petraeus resigned as head of the CIA in 2012 after it was revealed that he was having an affair with his biographer, Army Reserve officer Paula Broadwell. When he pleaded guilty to mishandling classified information, a court document signed by Petraeus and prosecutors said that in 2011, Petraeus illegally gave Broadwell access to official binders.
“In April, the retired four-star general was sentenced to two years of probation and fined $100,000, but was spared prison time after pleading guilty to mishandling classified information.
“The Pentagon could have sought to further reprimand Petraeus under military law.”
http://readersupportednews.org/news-section2/318-66/34927-retired-general-ex-cia-chief-david-petraeus-to-receive-no-further-punishment
The bottom line is that Hillary Clinton used during these times exclusively a personally hosted email system. In other words she received all email concerning state department business through this server. It is absurd to think that a person having a cabinet level position in the state department will never receive any email that is classified.
Of course she received and sent material having classified content. For her to say otherwise means she is either a liar or a fool–perhaps both.
Let’s put it another way. How about everybody at the state department be given the free option to have their own mail server at home and use it for departmental email? Would this be just as acceptable as Hillary claims her example to be? Nearly everyone would say no. But pose this comparison to Hillary Clinton’s supporters, they will excuse her behavior nevertheless. Regular employees who did this would be hauled into an interrogation room, fired, and charged criminally.
Remember people, it was a hacker that broke into the email one of Clinton’s aids that brought this entire matter to light. Does anybody think that the clintonemail.com server wasn’t compromised by a foreign state or other hackers?
The entire affair shows not only Hillary Clinton’s criminal lack of judgment, but how was it for years that her illegal email system was tolerated? Someone should have redflagged the matter as both a breach of national security laws, violations of public records acts, and other standard procedures.
I suspect Hillary Clinton is not the only one who the FBI is going to bring up in its investigations. There are going to be numerous people who aided her in this who too violated the law. And, I from what I understand is going on, it is probable Hillary Clinton is being investigated for public corruption as well.
This entire affair is not going to end well for Hillary Clinton.
Darren – on the Public Corruption charges there may be state charges available if the DoJ chickens out. The FBI could just turn over all their files to the state where the Clinton Foundation is incorporated.
@R.B.
1, February 1, 2016 at 11:14 am
“Democracy itself cannot exist with fraudulent and excessive secrecy, so maybe this is an opportunity to fix this unAmerican system while freeing our brave and loyal whistleblowers! We would steer closer to James Madison instead of following the path of Cold War leader Erik Honaker.”
Are you referring to this James Madison, aka the “Father of the Constitution”?
“Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.
“War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.
“In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people.
“The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.”
(Emphasis mine)
http://scholars-stage.blogspot.com/2010/10/james-madison-on-war-and-liberty.html
That James Madison?
She will say she didn’t know like her hubby pulled the “is, is” routine and nothing will happen. If her party was interested in the good of the nation they would distance themselves from her now but they won’t.
@Don de Drain
1, February 1, 2016 at 12:06 pm
“More to the point of my first comment above, when Prof. Turley has three posts on this topic in the week leading up to the Iowa primary, it looks like Prof. Turley is gunning for her.”
To be fair, JT’s multiple comments on this issue seem to have been legitimately occasioned by important new information’s having come to light regarding Clinton’s emails while Secretary of State.
In my case at least, I’ll need to see additional evidence that he’s “gunning” for her.
Anyone that wants the real deal should watch the video of the Thomas Drake luncheon at the National Press Club in March of 2013 (www.press.org).
Drake was an intelligence expert on these matters and separates fact from fiction on classification matters. Drake was kicked out of government for being too loyal to his oath of office.
Let’s put this in perspective. If an individual obtained a gun illegally, shot someone who was at his/her door delivering pizza and then dumped the gun in the lake, would we be arguing whether this was a legitimate case of self defense?
Clinton illegally used a private email server for all of her State Department business. Her gross negligence in properly securing ALL communications through that server was only possible because what she was doing was already illegal and without proper information security protocol provided by government agencies. Her pathetic and incompetent attempt to defend her illegal actions by asserting the communications passing through her illegal server were not marked classified would be akin to claiming the ammunition used in the hypothetical example above was at best legal to own.
I don’t care what your political leanings are but if you find yourself defending her at this point clearly demonstrates a blatant lack of objectivity and worse, a clear disregard for national security.
Paul, thanks for the info, I didn’t know that. So presumably (I obviously didn’t follow the case), General P. got in trouble because even though the g.f. had a secret clearance, she wasn’t entitled to the particular info…..I’m assuming that even people with high security clearances can only receive classified info on a ‘need to know’ basis and can’t discuss it with other cleared people unless authorized…..Also, since General P spent his career in the military, I would think that security measures would be far more understood and ingrained in him than someone like HC who is a political appointee. Rather like JT, now that I think about it…who says he has had a t/s clearance since Reagan, before many of us were born, so if he slips up, Hell, throw the book at him!! LOL.
Sometimes the reactions to an event are even more telling than the event, itself. Take Bernie the Bolshevik, for example, who is running against the ole gas bag, claiming that he is beholden to no one and only concerned about the little guy. While he foams at the mouth and flails his hands, as he speaks about the impending REVOLUTION, he suddenly morphs into a shy, reserved schoolgirl when confronted with a question about these emails. It is, truly, a sight to behold. Just the other day, during an interview on Meet the Press, after muttering something incoherent about the REVOLUTION and free everything for everyone, the announcer asked The Bern for his take on the mounting evidence against his opponent, Hillybilly. If one ever mistakenly believed that he had an ounce of credibility or that he was, at least, a genuine and honest individual, who truly was a man of the people, steadfastly upholding his ideals, one need only watch as he refuses to comment upon the email issue. Note, he won’t go so far as to say it’s ludicrous, and, mind you, he won’t dare claim that it’s baseless. Suddenly, the man of the people, who, was just moments, earlier, ready to stroke out about the banks and medical care, clams up into a shy, retiring Geisha girl, too meek to utter a comment about the massive breach of national security and the Secretary of State responsible for said breach. His only response that he could manage to garble was something about people wanting him to attack his opponent and how he was going to remain mum on the topic. Really, Bernie? You are going to ignore crimes committed by the Secretary of State against this country? Where did all of that fire and brimstone go? Man of the people? Oh, you mean you’re a MAN OF THE CLINTON’S PEOPLE, who is an old political animal, hedging his bets for the impending doom. Ah, yes, the squeeky, clean old Bolshevik, who isn’t controlled by any group or corporation because he gets lots and lots of small donations, from the PEOPLE, where the average donation is $27. See, when everyone shells out a paltry $27, he is also not answerable to that mysterious everyone, either. It cuts both ways, as he has no accountability to the average Joe, as well. His obvious duplicitous behavior has exposed him for exactly who and what he is–an old political hack with no ethical or moral compass. No wonder he has survived in politics.