In Political Press, Hillary Clinton Gets Subjected to the Thomas Drake and Jeffrey Sterling Standard

clintonpodium_600_1[First posted at ExposeFacts.org]

The political press is abuzz with news that the State Department (State IG) and Intelligence Community Inspectors General (ICIG) have asked the Department of Justice to review whether the Department’s handling of the personal email from Hillary Clinton was proper. The story was first reported in sensational fashion by the New York Times, revised somewhat overnight, and then reported in more measured form — making it clear that Clinton herself is not being investigated — by the Associated Press this morning.

The report has put the practice of retroactive classification of information — of the type that convicted Jeffrey Sterling and DOJ tried to use to convict Thomas Drake — at the forefront of presidential politics.

The referral to DOJ arises out of State IG’s review of the use of private emails and the response to Freedom of Information Act requests for Clinton’s email. After consulting with the ICIG, State IG reported that a number of the emails reviewed so far, including one released to the public, included classified information. The ICIG criticized State for using retired foreign service officers with extensive FOIA experience to review Clinton’s email before release, rather than conducting an interagency process (though according to a response from Patrick Kennedy, the CIA and ODNI had already approved the arrangement).

The referral pertains to State’s actions, not Clinton’s. “[T]he referral doesn’t suggest wrongdoing by Clinton herself,” AP noted. None of the emails in question were marked as classified when she sent them and one of them — pertaining to the FBI’s investigation of the Benghazi attack — was not classified at time she received it. Nevertheless, this news has led to a flurry of stories implicating Clinton in a potential DOJ investigation.

Clinton supporters are dismissing this as election year frenzy. The former DOJ Director of Public Affairs, Matt Miller, even tweeted, “If you examined the entire email [account] of any senior official, someone in [government] would later argue something was classified. Absurd standard.”

But Clinton is not the first this has happened to. After all, DOJ attempted to use five retroactively classified documents to convict Thomas Drake on Espionage charges; once DOJ had to admit that fact, their case against Drake fell apart.

And the only hard evidence DOJ presented that Jeffrey Sterling had improperly handled classified information were documents seized from his home that had nothing to do with the nuclear program he was accused of leaking. When the government introduced three of those documents under a silent witness rule limiting what Sterling’s lawyers could ask about them, CIA’s top classification official admitted they had not been classified as secret at first.

“When originally classified were these documents properly classified as secret,” the prosecution asked of the three documents.

“They weren’t,” [CIA Chief of Litigation Support Martha] Lutz responded.

“But they are now properly classified secret?”

“Yes,” Lutz answered.

The defense team made statements revealing that these documents offered instructions on how to dial rotary phones to call into CIA headquarters, hardly a cutting edge secret. Nevertheless, those documents were a key piece of evidence used to send Sterling to prison for 42 months.

Clinton deserves a good deal of criticism for using personal email that has made it more difficult to access via FOIAs. But retroactively classified information should no more be used to prosecute her — in reality or in the press — than Drake and Sterling.

When asked about the double standard via email, Drake did not join the frenzy. Rather, he described “having really bad flashbacks” given the calls to criminally investigate the former Secretary of State because release of the emails put “unauthorized classified information … in adversaries’ hands.”

Perhaps there’s room for agreement here. Via email, Miller noted, “the entire classification system is a mess: overly complex, riddled with ambiguity, and used at times for inappropriate reasons. And because of that you get perverse outcomes.”

Secretary Clinton surely should have made her emails more secure and accessible, via the formal FOIA process, by using official email. But that doesn’t mean retroactively classified information should be used against her anymore than it should be used against Drake and Sterling.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. bloopie2 says:

    Load Distribution

    “None of the emails in question were marked as classified when she sent them and one of them — pertaining to the FBI’s investigation of the Benghazi attack — was not classified at time she received it.”
    .
    I’m confused about the procedure here. Is it the email (message) that is classified, or is it the information in the message that is classified? Or, is the word properly used both ways – when an email contains classified information or is on a sensitive subject, it also is classified? So when you send an email, are you supposed to review it before you hit “Send”, and if you determine that it contains classified information (or that it is inherently of a classified nature), are you supposed to type “Classified” at the top or in the Subject line? And if you don’t, is that a crime? And if someone sent Hillary an email that was (improperly) not marked “Classified”, who’s to blame there?
    .
    It seems, overall, like a rather loosey-goosey marking process – not clean-cut like producing a written report over a period of months, for example. Another pitfall, I guess, of the instant communication ability that email and the digital world provide. To what standards are people held in such cases? Same as in the days of print? Hardly seems fair.

    • jerryy says:

      Adding to the headache, unless the email is sent only along encrypted channels or the contents have been themselves encrypted, (preferably both) the message will have at various times been out in the open for the careful perusal of the listening bystanders.

  2. orionATL says:

    why is this issue being raised now by two seperate ig units (state and dod) ?

    the co-ordinated actions suggest blatant collusion.

    is this a serious issue, e.g., for security ?

    what is the official rationale in each department ?

    who are the officials in each dept or in the white house most directly responsible for insisting the ig’s take up this issue ?

    which congressgoobers are behind pushing the ig’s to action ?

  3. Stephen says:

    Secretary Clinton surely should have made her emails more secure and accessible, via the formal FOIA process, by using official email. But that doesn’t mean retroactively classified information should be used against her anymore than it should be used against Drake and Sterling.

    I’d be careful with that term “retroactively classified”. That expression implies that the material in question was NOT regarded as classified at the time it was sent to Clinton and only assessed as such later.
    .
    I point that out because MSNBC host Chris Matthews had the NY Times reporter for that article on the phone a night or so ago for an interview about this matter and the way the reporter explained it to Matthews the material emailed to Clinton was ALREADY regarded as classified. It was just not marked as such.

    • bloopie2 says:

      Good comment, but that takes me back to my original question. Who decides what is classified, and when? Who “regarded” it as classified? How was she supposed to know, if it had not been “marked”? Etc. It’s a bad, even unworkable system, when you look at the relative ease of retransmitting information via email.

  4. Stephen says:

    Secretary Clinton surely should have made her emails more secure and accessible, via the formal FOIA process, by using official email.

    I suspect the problem is not just a matter of whether the server itself is secure but whether the system it used to send and receive email is secure. Thee is also the question of how Clinton herself accessed the email on that server. Was it via a web-based front-end like (say) Hotmail uses or was it via some other process like POP or IMAP or the one Microsoft’s Outlook uses? One reason why that matters is because using a web-based front-end keeps the mail itself on the server but POP, IMAP, and Outlook bring the mail from the server and store a copy on the user’s local hard drive. That copy would, in the absence of special software, be stored in plain text. And an easily transportable plain text format at that. (Albeit Outlook’s .PST files can be gigantic in size.)
    .
    Moreover, standard POP talks to an email server using non-encrypted passwords. If you want encrypted passwords with POP you need to set up the server to use TLS.
    .
    But even using TLS is not the same as using encrypted email. That is, the password may be encrypted but not the email text itself being communicated between the server and the user’s client software.
    .
    And that encryption issue is a separate issue to the one of whether the email traffic between the Clinton email server and the State Department email server was itself encrypted or not.
    .
    All in all Hillary Clinton’s email problem is a potential mess of her own making.

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