Hillary Clinton’s Server and Sensitive Compartmented Information
Clinton's wanton disregard for the rules had predictable consequences.
Hillary Clinton received the highest levels of classified information on her personal server because she skirted the law.
The NYT (“F.B.I. Tracking Path of Classified Email From State Dept. to Hillary Clinton“):
F.B.I. agents investigating Hillary Rodham Clinton’s private email server are seeking to determine who at the State Department passed highly classified information from secure networks to Mrs. Clinton’s personal account, according to law enforcement and diplomatic officials and others briefed on the investigation.
To track how the information flowed, agents will try to gain access to the email accounts of many State Department officials who worked there while Mrs. Clinton was secretary of state, the officials said. State Department employees apparently circulated the emails on unclassified systems in 2009 and 2011, and some were ultimately forwarded to Mrs. Clinton.
They were not marked as classified, the State Department has said, and it is unclear whether its employees knew the origin of the information.
The F.B.I. is also trying to determine whether foreign powers, especially China or Russia, gained access to Mrs. Clinton’s private server, although at this point, any security breaches are speculation.
Law enforcement officials have said that Mrs. Clinton, who is seeking the 2016 Democratic nomination for president, is not a target of the investigation, and she has said there is no evidence that her account was hacked. There has also been no evidence that she broke the law, and many specialists believe the occasional appearance of classified information in her account was probably of marginal consequence.
A spokesman for Mrs. Clinton said in a statement on Friday that she “took the handling of classified information very seriously.”
“She always received classified materials in secure settings, either by phone, videoconference, on paper or in person,” said the spokesman, Nick Merrill. “If, however, some material unknowingly ended up somewhere on the State Department’s unclassified email system, we want to continue to be as helpful as possible in getting to the bottom of that.”
[…]
This week, the inspector general of the nation’s intelligence agencies, I. Charles McCullough III, informed members of Congress that Mrs. Clinton had “top secret” information, the highest classification of government intelligence, in her account.
Some of that information, according to a memorandum the inspector general sent to the heads of the Senate and House intelligence and judiciary committees, may have come from a program called Talent Keyhole, which relies on satellite intercepts of conversations or imagery data. The program involves some of the most secure information in the intelligence agencies’ computer systems.
Specifically, the inspector general told members of Congress that two emails should have been classified as top secret, with one of them designated “TOP SECRET//SI//TK/NOFORN.” Officials familiar with the nomenclature said that “SI” stood for “special intelligence,” usually indicating an intercepted communication, and that “TK” was routinely used as an abbreviation for Talent Keyhole, showing that the communication or an image was obtained from a satellite.
AP (“AP EXCLUSIVE: Top secret Clinton emails include drone talk“):
Neither of the two emails sent to Hillary Rodham Clinton now labeled by intelligence agencies as “top secret” contained information that would jump out to experts as particularly sensitive, according to several government officials.
One included a discussion of a U.S. drone strike, part of a covert program that is widely known and discussed. A second conversation could have improperly referred to highly classified material, but it also could have reflected information collected independently, U.S. officials who have reviewed the correspondence told The Associated Press.
Still, it’s looking increasingly likely the issue of whether Clinton mishandled classified information on her home-brew email server will have significant political implications in the 2016 presidential campaign.
Clinton, who has been seen from the outset as the front-runner for the Democratic nomination, agreed this week to turn over to the FBI the private server she used as secretary of state. And Republicans in Congress have seized on the involvement of federal law enforcement in the matter as a sign she was negligent in handling the nation’s secrets.
On Monday, the inspector general for the 17 spy agencies that make up what is known as the intelligence community told Congress that two of 40 emails, in a random sample of 30,000 messages that Clinton gave the State Department for review, contained information deemed “Top Secret,” one of the government’s highest levels of classification.
While neither of the emails was marked classified at the time they were sent, they have since been slapped with a “TK” marking, for “Talent Keyhole,” suggesting material obtained by spy satellites. And they also were marked “NOFORN,” meaning information that can only be shared with Americans with security clearances.
The two emails got those markings after consultations with the CIA and other agencies where the material originated, officials said. Some officials said they believed the designations were a stretch — a knee-jerk move in a bureaucracy rife with over-classification.
Big Tent Democrat argues that all of this absolves Mrs. Clinton:
The idea that an email discussing a news article could be deemed “Top Secret” is ludicrous of course. But the IC is nothing if not ludicrous when it comes to classification issues.
[…]
Let’s review this again – (1) Clinton did not transmit the sensitive information herself and (2) nothing in the emails she received makes clear reference to communications intercepts, confidential intelligence methods or any other form of sensitive sourcing.
Frankly, this puts Clinton completely in the clear. This story SHOULD be over as far as Hillary is concerned. IS that true for other State personnel? I think so. But there can be no doubt as to Clinton.
While it’s certainly true that there’s an IC tendency to over-classify, a discussion within the IC about details of a news story could very well be legitimately highly classified. A discussion of how the reporters could have known the details could quite easily slide into sources and methods.
Beyond that, as noted in the lede, the key issue here is that Clinton’s wanton disregard for the rules that apply to everyone else in government is to blame here. Had she followed protocol and received her emails on her government account—as does everyone else who deals with classified information—rather than setting up a private server under her own control and funneling all of her communications there, there would be no issue. This is all the result of that bad act. It is, among others, the very rationale behind the protocols.
To use an analogy, if you’re driving your car 25 miles per hour over the speed limit or while intoxicated, you’re very much liable for the consequences of an accident that otherwise wouldn’t be your fault. By breaking rules put in place to enhance safety, you’re showing reckless disregard for safety. That you had no intention of causing anyone harm and were merely serving your own convenience or pleasure doesn’t absolve you of the foreseeable consequences of that conduct.
That said, based on the evidence publicly available now, it’s unlikely any real harm to the national security came from Clinton’s actions. She should be censured for breaking the rules but criminal prosecution would be a wild over-reaction here absent some compelling new evidence.
The fact that she’s a legitimate—if not the leading—contender to be the next president of the United States makes all of this rather awkward. Ordinarily, the chief punishment for this sort of breach would be to take away the offender’s security clearance or at least degrade said clearance. It would, of course, be unthinkable to deny the president access to any and all intelligence they desire, both from a chain of command standpoint and given their role as the ultimate decisionmaker. If the American public doesn’t find this disqualifying (and, even one who’s far from a fan of Mrs. Clinton, I’m not sure that I do) then there will and almost certainly should be no real consequence to her actions.
Really? I’d bet there are a lot of people who truly believe in the national security of America who would be reluctant to include the identity of their friends, coworkers and sources in classified documents that might end up in a Clinton Whitehouse. It’s more that just technical secrets, there are lives at stake and everyone in that community knows how Clinton thinks about the people doing the work of the United States in harms way.
In the end, someone committed felonies, a lot of them. The investigation and prosecution of those individuals will persist or if suspended remain hanging over Clinton’s record.
My main problem with all of this is not so much her private server but as a former member of the intelligence community I don’t really think classified documents should be emailed period.
It’s also impossible. Classification authority flows from the President down as it’s an executive program. What that means is that the President is the ultimate authority when it comes to determining what is and isn’t classified. Denying a President access to classified information would be the bureaucracy usurping Constitutional Executive authority.
So these weren’t actual classified emails but emails that should have been classified based on the information contained in it. So the main thing you’re accusing HC of is that she didn’t recognize a Keyhole image when she saw one, as compared to one from a commercial provider.
@Ron Beasley: Is this why Microsoft suddenly brought out version 10 ?
I think big picture Ron has a point-classified documents on email probably isn’t the best way to keep them secure.
As for Clinton she gets a pass because she’s Hillary Clinton. No way is this Justice department going to charge her with a crime even if they find criminal responsibility on her part.
At this point the only people who will get a say are the voters and the democratic machine for whatever reason seem to have crowned her the nominee. Democratic voters should take note.
@Just Me: You and Ron discussing it makes me wonder how hard it would be to hack a fax machine known for transmitting classified info.
It’s amazing to me those satellites can hone in and gather info on those cookie recipes. That’s technology!!
Can anyone provide a couple of facts?
– Did the House (or any subcommittees) subpoena Clinton’s email server, and if so when?
– Did the DOJ (or FBI) request or subpoena Clinton’s email server, and if so when?
@Tillman: When I worked for the DIA in Germany classified documents were delivered by couriers. .
@Mu:
I’m not accusing her of anything to which she hasn’t already admitted. I don’t have any reason to think that she did anything wrong in the receipt or handling of these emails. Any problem flowed from the original sin of doing her official business on a private server vice her government account. That’s the entire point of the post.
I am not a fan of HRC, but I did live through the nineties when a consensual heterosexual relationship between adults was made into a constitutional crisis. I know that HRC has been investigated a zillion times for lots of stuff without any findings. Please note that I am not saying that there was no wrongdoing in Whitewater or Travelgate, etc, but nothing substantial was ever proven. Benghazi has been investigated seven, eight, nine times, and it’s a big zero. This post says that someone inappropriately sent something to her which doesn’t sound like much of a smoking gun to me.
Was there some genuine wrongdoing by HRC here? Who can I trust to tell me? So much of American political discourse is delivered by crimson faced, neck vein distended spittle fleckers that I need a Virgil to guide me to understanding.
Sigh. This is where the people who are harping on this fail. AT the time HRC set up her server, there was no rule, regulation, law, protocol or guidance that required HRC or any government employee to receive emails only on their government account. Now should there have been such a rule? Sure, and such a rule was established in 2014-AFTER Clinton left office. But you, Doug, and others will just not acknowledge that Clinton did not break the rules, because there WAS no such rule. To use your analogy its as if someone was driving 75mph down a highway with no speed limit, and later the state established a 55 mph limit. You can’t go back and attack the driver for speeding back in the days before the speed limit was established. That’s a logic fail that you guys won’t acknowledge, because then you can’t blame Clinton for anything. Man, come October it’s going to be funny to see Gowdy try to blame Clinton for a law passed after she left office. Unfortunately, James, for you, Doug, and Gowdy, the arrow of time flies in only one direction.
Another unacknowledged and inconvenient fact: Former SoS Colin Powell also used private email to conduct government business-as did Presidential contender Jeb Bush when he was Governor Of Florida.I haven’t heard either Doug or you say one word about this. Now as a liberal, I have lots of questions about Powell and Jeb Bush emails. I sure would like to go through Jeb Bush’s emails around November 2000 or Powell’s emails September 2002-March 2003. Guess what , I can’t, because Powell and Jeb deleted those emails. And none of the Clinton haters have said a mumbling word about those deletions. Funny that.
James, the harping of you and Doug about this is a prime example of the Clinton Rules.
The Clinton Rules means that the Clintons are presumptively guilty of some violation, which the pundits then go on to condemn the Clintons for even when no such violation exists. It’s absurd, because then objective observers, even those which aren’t Clinton fans (such as myself), feel that they have to defend the Clintons in the name of objective reality and logic. This is frankly, something I would prefer not to be doing. I find it absurd to be instructing lawyers and Phds on matters of elementary logic, and principles such as the wrongness of condemning people for retrospective violations of laws. But then, such are the Clinton Rules.
As FDR used to say, ho-hum. Was there a rule against using a private server when Clinton started her term as Secretary of State? Was she the first Secretary of State to use a private email server? What harm to the US flowed from her use of a private server? As far as I know, the answers are negative. So ho-hum again.
I read this post shortly after learning that Jeb Bush is open to the use of enhanced interrogation techniques, aka torture. That’s not a big thing to the press and to most online bloggers. To me, it is. So I suggest that Matthew 23:24 is pertinent. For people of my ethnicity reading this post, that’s the verse about straining out gnats and swallowing camels.
@stonetools:
This has never been about illegality, of which there is none to be found in her actions.
It has, from the outset, been yet another branch of the “we have got to find something – ANYTHING – to use against those damn Clintons!!” machinations that began back in the 1990s. For the modern day Republican, opposition research is his/her primary goal. Governance (outside of initiatives bought and paid for by campaign contributors anyway …) runs far down the list of important ways to utilize their time.
You won’t see discussions of the apparently hundreds of thousands of emails sent via private email accounts (on servers controlled by a private entity / political party, no less) during the Bush administration (and for exactly the same reason as Clinton, no less) because IOKIYAR.
What you are seeing here, and in the numerous prior pieces on here which endlessly explore the same subject, is just the latest installment of “I can’t believe that b*tch is likely to be our next president”.
@James Joyner:
Yep. As much as I can tell, the debate about classified info in her email is really argument between agencies about who and how should classify materials. If she was using a .gov email, a non-classified system ,same debates would happen but they would not concern anyone in the media or the poltiical world. In other words, unlike, say, Benghazi, there really is something Hillary did wrong, and she should blame herself for when it gets exploited by her oppponents.
@HarvardLaw92:
The one thing that bothers me as someone passionately devote to her becoming president, is that she should have predicted all this when she set up the mail server. This kind of short-sightedness is problematic, to say the least.
@JKB:
‘
Yes- that time she sent out lesbian assassins to kill the Benghazi diplomats was a terrible breach of trust between her and the American people.
@humanoid.panda:
Actually, there really isn’t. Federal law criminalizes the knowing release of classified materials to a person or persons who are not authorized to view them. It does NOT criminalize sending classified materials via email. No illegality happened here.
Departmental policy might have been violated, except that the DoS policies which were in effect at the time didn’t prohibit her actions either.
What she’s guilty of, if anything, is playing politics. She didn’t want her emails being mined by opposition research during the presidential bid she knew way back then that she intended to pursue, so she walled them off. Subsequently turning the entire load over to the State Department was a masterstroke – it then has to review all of them and decide which can be released and which must be kept private, while she gets to assert (accurately, no less) that she’s held nothing back and if there are delays, well, those incensed reporters should ask the folks over on C Street why that’s the case.
She didn’t break the law. She didn’t violate DoS policy. She played politics. It’s unseemly, nothing more, but as I noted above, unseemly is all that they’ve been digging for from the outset.
Gowdy is a blowhard, but he’s also a pretty decent lawyer, and he knows that legally this goes nowhere – which is why he wants a closed hearing. He’s trying to control the narrative for POLITICAL PURPOSES, not oversight purposes. This has never been about uncovering illegality. It has never been about uncovering policy violations. It has, from day one, been about finding material which can be spun to harm the opposition.
@humanoid.panda:
She did. She had two crappy choices – use governmental servers, and have her every word being poured over by opposition researchers for years prior to her second run, or do what she did and weather the political fallout.
Had I been her political adviser (or indeed her attorney), I would have advised her to do exactly what she did. It was the least bad option.
@humanoid.panda: “The one thing that bothers me as someone passionately devote to her becoming president, is that she should have predicted all this when she set up the mail server. This kind of short-sightedness is problematic, to say the least.”
I think she knows by now (and knew by then) that whatever she did in any arena would be used by her enemies to trash her, and so she decided to do what worked for her and let them all spin their little hearts out.
Unless you can honestly tell me you believe that A) anyone really cares about this (other than those members of State and CI using it to continue their war with each other and B) that absent this the Republicans would not have come up with another ludicrous attack and C) the New York Times would not have treated that absurdity as a civilization-ending scandal, then I believe you might want to rethink your position here…
@humanoid.panda:
You misspelled “when she became Secretary of State.” The moment she became SoS, she put a bull’s eye on her back and ensured that the Republicans would come gunning her for her whatever she did. Had she used a .gov address for her emails, the Republicans would still be trying to make a scandal out of what are at worst minor technical violations of the rules of handling classified information- rules that are probably violated by some government employee every other day or so. To use the highway driving analogy again, this is the equivalent of Clinton sometimes driving 60 miles per hour in a 55mph zone. Now you can cluck your tongue and say that Clinton should always observe the speed limit, especially when she knows that the cops are gunning for her, but in reality everyone occasionally speeds.
The no real consequence here wil be the slight increase in polar ice cap melt because of the all the bloviating and hot air.
I ask this question out of ignorance: How is this different than what Thomas Drake was rigorously prosecuted for? Wasn’t Drake charged with mishandling classified information?
@Keith:
No, Drake was charged with willfully retaining classified materials which he was not authorized to possess under 18 U.S. Code § 793(e). Clinton has never been accused of possessing classified information which she was not authorized to possess. Indeed, given her role as SoS and a cabinet member, I’d have to imagine that there is little, if anything, in the body of communications generated by the DoS, or other materials for that matter, that she wouldn’t be permitted to see.
That’s rather rich coming from someone who excuses the war crimes of the Bush Administration…
And who should they get behind? Bernie Sanders? Martin O’Malley? Obviously Democrats want to win the White House so most of them are backing the person they think has the best chance of doing that…
@JKB:
Would you be so kind as to point out the specific federal statutes which you believe were violated, and by whom?
Thanks
@HarvardLaw92:
Wrong !=illegal. Using private email is a bad procedure, a bad example for a principal in an organization, and even worse, it was a stupid thing to do when knowing you will be runnning for president and the other side is gunning for you.
“It is not a crime. Worse: it is a blunder.” [Ascribed to Napoleon..]
@HarvardLaw92:
I’ve had some experience with FOIA requests, and believe me- it takes a looooong time for researchers to get access to principal documents. Additionally, she already delivered her work pertinent emails- meaning they will be available to oppo researchers. Now, if she kept a private email and used it in parallel to her official one, no doubt some wingnuts would demand access to it, but it would go nowhere, because even our media wouldn’t have latched into that.
@Stonetools:
In all probability, they would never learn of this, because the New York Times doesn’t report on this, because the whole things gets handled by the federal bureacracy in an utterly boring way.
” To use the highway driving analogy again, this is the equivalent of Clinton sometimes driving 60 miles per hour in a 55mph zone. Now you can cluck your tongue and say that Clinton should always observe the speed limit, especially when she knows that the cops are gunning for her, but in reality everyone occasionally speeds.”
Again, using private emaii for official purposes is simply bad procedure- it’s simply not equivalent to some minor violation.
The Clinton rules are real, for sure, but here’s the thing: Benghazi failed to stick because the public got that in the end, there is no there there. The e-mails caused real damage (hopefully, just transitory) because the underlying issue is real, even if legally everything is ok.
@humanoid.panda:
We’re not talking about FOIA requests. We’re talking about internal requests from members of Congress. The sad truth about modern government is that oppo research now begins on the inside and flows outward.
They’ll EVENTUALLY be available, when DoS gets around to deciding which ones can be released and which ones can’t. She hasn’t prevented it altogether so much as she has dramatically shortened the period of time in which it can be analyzed and potentially used against her. She’s playing dodge Congress and beat the clock, and the longer she drags it out, the more it begins to look like Republican members of Congress are on a witch hunt. It’s all about the optics, on both sides of the fence.
I agree that in a perfect world, what she did is bad practice, but we don’t live in a perfect world. Sadly, if anyone intends to ever run for office again after leaving an appointee role, this sort of tactic is a necessary evil.
@wr: “Unless you can honestly tell me you believe that A) anyone really cares about this (other than those members of State and CI using it to continue their war with each other and B) that absent this the Republicans would not have come up with another ludicrous attack and C) the New York Times would not have treated that absurdity as a civilization-ending scandal, then I believe you might want to rethink your position here…
”
A. No, I don’t think that anyone really cares, but her favorability number did take a hit. I don’t think its a major deal, but its the kind of slip up Obama, to cite one example, would have NEVER committed.
B. Of course they would- but not all republican scandals break out like this, because usually they are pure BS- not BS mixed with elements of fact.
C. The NYtimes had definitely been malicious in the way they treat this scandal, but compare it to Benghazi, where, with some exceptions, the media avoided falling into the rabbit hole, and Hillary’s standing took no hits. Again, the difference is that the reasonable person can see that Hillary did nothing wrong in Benghazi, but was sloppy and careless here.
@humanoid.panda:
Note: this is exactly the same reasoning which results in Wall Street traders not discussing sensitive (read: insider) information on their work phone lines or via their work email – because by law those interactions have to be recorded and maintained for regulatory scrutiny. Those discussions happen instead at lunch, or when one steps out of the building, on one’s private cell.
The difference is that the traders actually may be violating the law, She didn’t, but both of them are playing cover your behind.
The point I made about Obama is worth reiterating IMO: yes, Hillary didn’t do anything illegal, and yes the GOP would have blown antything into a scandal and so on. Yet, can anyone imagine Obama losing the primary ,and getting a State Secretary post as consolation prize, and then creating the same set-up?
@humanoid.panda: “The e-mails caused real damage (hopefully, just transitory) because the underlying issue is real, even if legally everything is ok.’
So our new standard for Hillary Clinton is that it’s never enough to follow the law, she’s got to live up to regulations that won’t be issued for another two years? How could any humn being live the life you are demanding of her?
@HarvardLaw92: While I see your point, I have to take panda’s side on this point. You have conflated “wrong” and “illegal;” whereas panda seems to be noting “wrong” as in “foolish” or “shortsighted.”
On that point, Hillary’s choice, considering the history between herself and “the vast right-wing conspiracy,” was wrong.
@humanoid.panda: I have no answer to your Obama hypothetical, except to say that it’s pretty early to be turning him into the cartoon character of perfection that the Republicans have fashioned from the corpse of Ronald Reagan.
@wr:
Again- we are not talking about some abstract issue. We are talking basic protocol: you don’t use private email for business. Do you think she would have let any of her senior campaign advisors do that?
@wr: Obama is not a carbon copy of perfection, but he is excedingly good in containing Republican poop flinging.
@HarvardLaw92:
Respectfully, there was a third choice: Carry two devices.
Keeping personal e-mails and professional correspondence separate is a very good, even obvious, idea for someone with the kind of political enemies a Clinton should anticipate. To do that they can’t be on the same server and she has to use a separate device because the one she uses for government work a hostile Congressional committee could demand all the records for without going to a judge.
It looks more like her set-up was the result of consulting a techie, and the question asked was “Can you make it so I only have to carry one device?”
“Sure!”
You mean like Colin Powell, right? Seriously – stop it with this stupid shit.
@HarvardLaw92: As a lawyer you would have advised the Secretary of State to not follow standard government IT procedure in the handling of State Department documents because it might have been politically inconvenient? How are we ever supposed to take anything you say seriously again? I mean, we don’t know exactly what happened yet, but you’re claiming to be a lawyer, and you’re saying that the Secretary of State should treat IT protocols and clearances as suggestions? That’s insane. That’s got to be a thing you’re saying to make a political point on a message board, and / or you don’t understand what you’re talking about. That’s nonsense.
@humanoid.panda:
Heh, you are a trusting soul. The Republicans would have found out about it, the NYT would be wringing its hands, and the same process by which minor violations because full blown faux scandals would engage. The private server adds more spice, but there certainly would be a ” scandal.”
Bad procedure that was followed by Powell, Jeb Bush, and God knows how many Republican officials until just the other day. How come there are no “scandals” associated with them?
The underlying issue became a scandal, because it’s Clinton, and only because it’s Clinton. I believe it will be transitory-forgotten the next time the Reublicans can come up with some other “scandal”.
@humanoid.panda:
I can imagine the Republicans brewing up different scandals for Obama-as indeed they did.
Now I understand that Clinton did this unorthodox procedure in an attempt to shield herself from Republican scandal mongering-an attempt that failed. I think you are naive to think that the Republicans would not have generated a scandal out of her personal emails had she followed your preferred procedure. It would have been a different scandal. But there would have been a scandal, as sure as yesterday’s sunrise.
I’ve read through this long comment thread, and nobody seems to be talking at all about the key fact, which is that the emails in question were not marked as classified in any way, much less TS/SI/TK.
Anyone who received such emails, marked at that level, and retransmitted them without their markings is in deep tofu.
Any original classification authority who generated those emails and failed to mark them is in deep tofu.
People who received the incorrectly marked emails, and handled them according to their markings, are not implicated. At all. That includes (apparently) Hillary Clinton. Especially if there was nothing in the content of the emails that seemed to indicate a specific intelligence source.
And I’m sorry, James’s argument that she did everything according to the book for the way the emails were marked when she received them, but she’s somehow massively culpable for receiving (unclassified) emails at all on that system, is just nonsense. Any transmission of such materials over any unclassified system is equally bad at that point — there’s no difference between an official .gov system and Joe Schlabotnik’s personal server. (Sorry, @HarvardLaw92, you’re wrong here. Transmission over an insecure system is deemed to be a “negligent release” of the information. It’s a security violation, whether the information is actually intercepted by uncleared personnel or not.)
@DrDaveT:
It’s a policy violation under EO 13526. That having been said, as an agency head, it’s questionable whether she could be even held accountable for conveying classified information – presuming she even knowingly did so to begin with – when her role at the time gave her the authority to declassify it if she felt it justifiable to do so – but it’s not a violation of federal law.
At most, it’s grounds for revocation of her current security clearance (which presumably she retained), which would be a moot point if she’s elected (since she’d just be given access to everything again as a sitting president). Further personnel action is also moot, given that she’s no longer employed. Speaking from a legal standpoint, which I think is the more salient context, she’s in the clear.
@Pinky:
As a lawyer, I would have advised my client regarding what was in her best interest. I would have told her “this is not illegal. It may (stress MAY) violate policy (as noted, as an agency head she had the authority under EO 13526 to declassify information), which is a matter you need to discuss with the president, but if you plan to run again, it’s in your best interest to control opposition access to your communications for as long as possible.”
You guys are apparently proceeding from the standpoint of “well, that should be illegal”. Tough noogies – it isn’t, so if she accepts the potential personnel consequences of the proposed course of action (about which she would have been advised by me beforehand) – or negates them either through discussion with the president or her own status as an agency head – then we’re good to go.
People have this sense of confusion where the attorney/client relationship is concerned. My job is to protect the interests of my client, which in that scenario would be Clinton as an individual. I can’t (and you’ll note, in this scenario would not) advise them to take actions which I know to be illegal, but beyond that, my advice is structured to advance my client’s interests. If I can advance those without breaking the law, then any tactic available to me in that regard becomes fair game.
@Just ‘nutha ig’rant cracker:
Understandable. Her actions have a political downside, and some people find them objectionable. She would have to take that downside into account when deciding whether to pursue them. That having been said, for a lawyer (at least this one anyway), wrong does = illegal. Everything else short of “wrong” is a matter of risk / reward analysis. I get paid to stretch that everything else to the breaking point in furtherance of my clients’ interests without going over the line into actual illegality, and I’m paid as well as I am because I’m quite good at it, so approach what I’m saying here in that context.
@Ron Beasley: But we’ve been using electronic means to transmit classified information for decades! We didn’t have email in my day (1984-92) but we had SKU telephone lines, digitally encrypted radio, and the like. I’m not sure why SIPR is inherently worse. It’s just unpractical to gather everyone in a SCIF every time you want to have a discussion, especially when you’re talking with ambassadors and combatant commanders in far-flung locations.
@HarvardLaw92: I think you’re off base here. First, few are arguing that she violated criminal law here, merely that she blatantly disregarded accepted security procedures. Second, even if she had the authority to classify and declassify some information, it doesn’t follow that she wasn’t required to treat information that remained classified according to accepted protocols.
Other than that, yes, we’re in basic agreement: She’s not going to be punished criminally for this, she doesn’t have a security clearance to revoke at present and, if she were to get elected, she’d of course have clearance. So in that sense, yes, what ultimately matters to her is the political fallout.
@stonetools:
Republicans will always blow up scandals. However, for Obama, those never breached the walls of their compound. Why do you think?
@HarvardLaw92:
@DrDaveT:
I am fully cognizant of that fact, and I think the media is doing a hack job by obscuring that point. However, politically speaking, Hillary’s use of private e-mail created the murkiness that allows the media and the Republicans to confuse the issue.
@stonetools:
I am sorry, but the idea that if Hillary was using a .gov email, a disagreement between STATE and the intellegence IG about the level of classification of an email someone sent to her would reach the NYtimes front page, requires the same sort of thinking that makes republicans whine about “liberal bias.”
@James Joyner: ” First, few are arguing that she violated criminal law here, merely that she blatantly disregarded accepted security procedures. ”
Actually, the leading candidate for the Republican presidential nomination has repeatedly declared that she committed multiple felonies.
@humanoid.panda: “Again- we are not talking about some abstract issue. We are talking basic protocol: you don’t use private email for business. ”
She did exactly the same things that both her immediate predecessors in the position did — and that the Republican congressmen leading the investigation and the Republican former governor of Florida currently running for president did.
Perhaps the “basic protocol” isn’t quite the same for our highest political leaders as it is for corporate vice presidents. And sure, it suck there are different rules for the powerful — but it’s ludicrous to insist that even though our entire ruling class follows this set of rules, Hillary has to obey those set for cubicle workers.
@James Joyner:
Exactly my point. In a race where the eventual choice is going to be between her and whomever the current clown car in the GOP offers up as a damaged candidate, the political fallout gets neutered to varying degrees depending on the constituency in question. The people this is most likely to resonate with were never going to vote for her under any circumstances, so who cares what they think about it. The longer it drags out, the more it motivates those who are inclined to vote for her to see this as a witch hunt. I like her chances. It was a worthwhile gamble.
@humanoid.panda:
See above
@humanoid.panda:
Actually, it involves remembering NYT coverage of the Clintons since 1992, but whatever.
@HarvardLaw92:
This. A hundred times this. Clinton did the smart thing and there was nothing ethically wrong with it, and certainly nothing legally wrong.
Why did Bill Clinton lie about Monica Lewinski? Because the Republicans lawyers who were investigating were walking out of court every frickin’ day and illegally leaking every word to the press. There’s a hundred examples of the Republican sleaze such as this. And a thousand examples of sleazy Republican operatives hovering up every scrap of information and twisting and turning it so it shows up in the press. Heck, look at what jus happened with the classification fiasco and “criminal” investigation that some sleazy Republican operative misinformed the NY Times with. Nothing there, an out right lie, but splashed across the news. Look at the Benghazi email and diplomatic letters letters, scoured over and then individual sentences and fragments of sentences selectively leaked by sleazeball republican aides with no chance for Hillary’s people to respond because the hearings were “confidential”. She had no good choice and she chose the least bad one. She knew that people like James would feel there blood pressure rise and view it as confirming every bad thing they “know” about her. And she knows that the fact that Jeb Bush did literally the exact same thing will not even register on James.
She made the right choice and it was ethical.
@MarkedMan: Well, no, she made the wrong choice and it was unethical. Politically expedient, perhaps, but flouting all of our rules for dealing with sensitive communications.
I don’t know the particulars of Jeb Bush’s email habits as governor but am rather sure he wasn’t dealing with sensitive compartmented information, on account of Florida doesn’t have any. State-level secrets aren’t he same as “state secrets.” Additionally, he was leaving office at essentially the same time she was coming in.
We’ve gotten much more savvy in understanding the implications of using personal email for sensitive business and implemented much tougher protocols starting around a decade ago. Indeed, when Colin Powell was in Clinton’s post, there was apparently no modern communications system in place and he started them on the road to implementing one.
@James Joyner:
Could you provide some sort of citation to the rules she flouted? As far as I’ve been able to uncover so far there were no rules at State counter to her practice until after she left. Are you aware of any specific protocols that were written at the time she was at State that she violated?
@Grewgills:
I’ve asked him that before, and there has been no response, because there CAN be no response. The rules he is talking about are the made up ones that he, Doug, and others think SHOULD have been there. Or the rules that were written AFTER she left office.
Note that he mentions Colin Powell without mentioning that Powell himself violated these supposed “rules”. Presumably, the excuse is that email was just so new in 2004 in a way it wasn’t in 2009, which is of course ludicrous.
As to Jeb!:
@stonetools: @Grewgills:
ABC News:
From Politifact:
So, again, she knowingly and deliberately flouted the rules and policies surrounding communications. Is it criminal? No. But it certainly wasn’t ethical or normal conduct.
James, I realize you and I are not going to agree on this. From my perspective, you are fixated on Clinton but dismissive of Bush doing the exact same thing because you “know” Clinton has sleazy ethics, and you “know” that Bush is no more or less sleazy than any other politician.
@MarkedMan: In this case, I’m “fixated” on Clinton because she flouted the letter and spirit of the rules for handling classified information. It has never occurred to me that state governors were in the federal security loop and had similar duties for safeguarding classified information, although I’m prepared to be persuaded otherwise.
@James Joyner:
What I’m taking from this is that the two pertinent rules at the time were if you used a private email/server, you were required to turn those emails over to be archived and preserved on official servers. HRC did so; what’s the problem? If she did it now, she’d be breaking the rules that were to be established in 2012, after she left office. But at the time, what she did didn’t even break the rules that I can see.
@Blue Galangal:
She did so years later, after her practices were called into question and after having ample time for her people to expunge emails she deigned not to turn over. That’s the problem. Additionally, as noted in the piece above, the rules were written with the expectation that officials primarily use their official account and only use their personal accounts when necessary due to exigency. She simply refused to use the .gov account at all, conducting her business 100% not only on a non-government account but under her own personal domain. If she used, say, a Gmail or Verizon account, the emails would have been discoverable. Here, they were completely immune from scrutiny to the extent she wished. That’s light years different than what any of her predecessors did.
@James Joyner:
Colin Powell was a state governor?
You keep ducking this, to the point that it can only be deliberate. Hillary Clinton did not do anything that Colin Powell did not do before her. If it was unacceptable and sleazy for Clinton, then surely it was even more unacceptable and sleazy for Powell, who did not have a precedent the way Clinton did.
Right?
If not, you need a whole new category of
straws to grasp atargument for your position.@DrDaveT: While I grant that Powell enjoys something of a halo effect vice Clinton in my eyes, the fact of the matter is they operated in completely different climates. Here’s Powell’s description:
WaPo expands:
The practice of carrying smartphones began around the time Powell became Secretary and really didn’t explode until after he left office. The rules really didn’t get codified until late in his tenure. They were institionalized well before Clinton took office and she deliberately circumvented them by not only using a non-government account but actually running her email off a private server so that only she had access to the record. There’s really no comparison here.
Anybody that has worked with Classified information before knows what Clinton did was wrong. Yes, I know. Not illegal wrong but violations of policy nevertheless. What’s even more discouraging is we have people in this thread excusing this because it makes sense in the context of the violators future political aspirations. Really?!?!? So the citizens of this country have to expect less transparency of their Officials because they have political futures to protect? That’s some primo bootlicking in my book.
Federal Government IT policy regarding the processing of classified information has been virtually the same for years. I can guarantee that no one at the DOS advised her that this was a compliant course of action. Jeb Bush?!?!? How the heck did he get into the conversation. States handle their own information differently. Jeb Bush as Florida Governor did not deal with any Federal Gov’t classified information. He’s not cleared to have access–he’s not a Federal gov’t official. However he acted as Commander of the Florida National Guard is moot because those Forces, until mobilized, are not under the control of the POTUS or DOD.
When are people going to stop being water carriers when “their guy/gal” screws up? Im about sick of the “the other guy did it too” as an excuse for behavior not in the best interest of the Country. Politicians screw up all the time–why is it so hard to say “my team blew it” then hold them to a higher standard? Americans ought to have an issue with their State secrets being hosted on a private network that’s not subject to generally accepted practices of Data security–especially in this era of extremely sophisticated data thieves. Im not even surprised that DOS IT allowed this…anybody with any familiarity with the Fed Gov’t umbrella of Agencies knows that from an HR perspective the DOS is analogous to Mississippi—hence Americas over- reliance on the Military for Foreign Policy.
The bottom line is she violated established IT security policy regarding how classified data is transmitted and stored….for future Political considerations. If you receive Classified data and do not report the spillage…that too is a violation of guidelines. End of story. All the gobbledegook about Opposition Research or [Insert Hated Bush cohort] did it too—its Bullshit frankly. No sense in whining about quality of the political class if the only people you want to hold accountable are from “the other side”.
@Pharoah Narim:
And this is where the CDS comes in. As I understand it an actual Florida law was in effect that mandated Bush use the official email service but he used his private one instead. He didn’t turn over the records until many years later when the Clinton “scandal” broke. He sorted through the emails and decided what needed to be turned over and erased the rest. You know, basicallywhat Clinton did.
But this doesn’t even register. Clinton may or may not have broken a regulation. Bush certainly broke the law. But somehow it doesn’t matter because… I don’t know. The whole national security is a dodge because to date we only know that Bush used his personal email to discuss classified info, when he used it to talk about FL Nat Guard troop deployments in war zones.
I concede I may be blind on this issue. But try as I might I can’t see anything other than when Clinton does something it is always proof of her evil intents and sleaze. But when a Republican does it, it literally doesn’t even register.