What Agency Is Claiming Hillary Received SAP Emails?

The political world is a-twitter over the latest in the Hillary email scandal, Fox News’ report that there were emails sent to Hillary classified at the Special Access Program level. To Fox’s credit, Catherine Herridge liberated the letter itself.

To date, I have received two sworn declarations from one IC element. These declarations cover several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET, and TOP SECRET/SAP levels. According to the declarant, these documents contain information derived from classified IC element sources. Due to the presence of TOP SECRET/SAP information, I provided these declarations under separate cover to the Intelligence oversight committees and the Senate and House leadership.

Note, the letter makes clear that those reporting Hillary had two SAP emails may not be correct: Charles McCullough’s letter doesn’t say how many emails were SAP and how many were CONFIDENTIAL. And the letter is conveniently written in a form that can be shared with the press without key information that would allow us to test the claims made in it.

For example, one critical detail in assessing claims about classification pertains to which IC element claims Hillary received SAP email.

That’s relevant because some agencies have more credibility in their classification claims than others. If this is CIA making the claim, for example, we should assume it’s bogus, because CIA — and its Chief of Litigation Support, Martha Lutz — routinely makes bogus claims.

I described, for example, how Lutz shamelessly claimed documents dating to 1987 on dialing a rotary phone were appropriately retroactively classified SECRET after 2006 to back the only piece of evidence admitted at trial that Jeffrey Sterling mishandled classified information.

Martha Lutz, the CIA’s Chief of Litigation Support and the bane of anyone who has FOIAed the CIA in the last decade, was on the stand, a tiny woman with a beehive hairdo and a remarkably robust voice. After having Lutz lay out the Executive Orders that have governed classified information in the last two decades and what various designations mean, the government introduced four documents into evidence — three under the silent witness rule — and showed them to Lutz.

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

“They weren’t,” Lutz responded.

“But they are now properly classified secret?”

“Yes,” Lutz answered.

[snip]

[T]he defense explained a bit about what these documents were. Edward MacMahon made it clear the date on the documents was February 1987 — a point which Lutz apparently missed. MacMahon then revealed that the documents explained how to use rotary phones when a CIA officer is out of the office.

That’s a big part of why Sterling is sitting in prison right now: because Lutz was willing to claim, under oath, that a 28-year old document on dialing rotary phones still (rather, newly) needed to be protected as SECRET.

But it’s not just this one case: pretty much everyone who has FOIAed CIA in recent years has a Martha Lutz story, because the agency has such a consistent history of making transparently false classification claims to hide CIA’s activities, even those that are widely known.

Just as an example, the torture program was (and possibly the still-classified aspects continue to be) a SAP.  Keep that — and the many publicly known details, such as that Alfreda Bikowsky was central to some of the biggest abuses about torture, that CIA managed to bury in the Torture Report not because they’re secret but because having them officially discussed puts CIA at legal risk — in mind as everyone wags around that SAP label. If CIA is making the SAP claim, the claim itself should be suspect, because there’s such an extensive history of CIA making such claims when they were transparently bogus. Earlier in this FOIA, CIA claimed that Hillary’s staffers could only learn about the Pakistani drone program from classified information, when you’re actually better off learning about such things from Pakistani and NGO reporting; in the end McCullough sided with CIA, not because it made sense, but because that’s how classification works.

I’m on the record as thinking Hillary’s home brew server was an abuse of power and really stupid to boot. But I’m also really hesitant to make blind claims from unnamed Original Classification Authorities on faith, because the record shows that those claims are often completely bogus.

Hillary receiving a SAP email may say terrible things about her aides. Alternately, it may reinforce the case that the CIA is an out-of-control agency that makes ridiculous claims of secrecy to avoid accountability. We don’t know which of those things this story supports yet.

Update: Told ya.

The Central Intelligence Agency is the agency that provided the declarations about the classified programs, another U.S. official familiar with the situation told POLITICO Wednesday.

The official, who spoke on condition of anonymity, said some or all of the emails deemed to implicate “special access programs” related to U.S. drone strikes. Those who sent the emails were not involved in directing or approving the strikes, but responded to the fallout from them, the official said.

The information in the emails “was not obtained through a classified product, but is considered ‘per se’ classified” because it pertains to drones, the official added. The U.S. treats drone operations conducted by the CIA as classified, even though in a 2012 internet chat Presidential Barack Obama acknowledged U.S.-directed drone strikes in Pakistan.

The source noted that the intelligence community considers information about classified operations to be classified even if it appears in news reports or is apparent to eyewitnesses on the ground.

Update: I meant to link this earlier. It’s a complaint submitted to ISOO from Katherine Hawkins detailing all the things CIA kept classified in the Torture Report that aren’t, or were improperly classified.

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.

10 replies
  1. bmaz says:

    Indeed. Also think it notable that the actual wording in the Herridge liberated document specifically provides yet another slippery dodge:

    …these documents contain information derived from classified IC element sources.

    Which could be about anything really, from NYT articles, to NGO reports, to Emptywheel blog reports. Because everybody who was anybody was trafficking in discussion of topics involving “information derived”.
    .
    Was Clinton stupid for having that personal server setup? No question. Criminal? Well, there is certainly nothing compelling in the least to that end yet. Not to mention Clinton’s security appears to have been as effective as State’s. But that is yet another issue.

  2. orionATL says:

    i think this country would benefit enormously from having a woman as president. looking at other nations in europe, asia, and latin america, it is extraordinary that we have never been even close to having a woman as president.

    i think secretary clinton would be, at least, a competent president, likely an excellent one, which is more than can be said for our last two presidents (at least), perhaps the last five.

    generally speaking, the reason i expect her to be a very competent president is her very long experience participating in and observing the work of the political executive, work which is very different from legislative or judicial work. specifically, the reason is her personal tendency to focus on working with groups with differing opinions and goals to create a useful outcome. i have to say also, sexist as it is, that i think women’s work in politics and a presidency, because of the way they approach conflict, is likely to be at least equal to and likely superior to that of men of equivalent experience.

    all the above is preface to saying:

    – the hillary clinton email “scandal” is now, and always has been, a witchhunt to damage clinton politically.

    republican representative kevin mccarthy said as much while referring to republican rep. trey gowdy’s politically motivated benghazi-cum-private server “investigation”. the reason for the investigation was transparent: to destroy the strongest democratic candidate, leaving the party severely weakened in the 2016 presidential race (gowdy needed have bothered; the democratic party is perfectly capable of fucking itself up. )

    – after the release of more than 50,000 pages there is no reason to believe clinton systematicallly and intentionally was careless about or dismissive of classified communication rules. the operational concept here is “tendency”. there was no tendency to violate the rules.

    now i want to say something that is patently obvious but which no one seems willing to say (perhaps because it is so realpolitik):

    in washington between 2008 and 2012 it would have made no sense at all to trust the security of ANY government computer network. do i need remind readers of the long, long, long history of break-ins to government computer networks? e. g., obama’s, clinton’s state dept passport history accessed in 2008.

    given clinton’s own prominence and her association with her husband (how terribly unfortunate), clinton’s decision to have a private server may have seemed wise at the time but may end up damaging her, most prominently among the twittering class (in that respect we are fortunate – one-person-one-vote applies to the twittering class as well as the rest of us) . be that as it may, clinton made the private server decision in 2009 and now her problem is to deal with it politically. political decisions are risky :)

  3. CTuttle says:

    Mahalo, Marcy, for once again delving into the weeds on this contentious topic…!

    Btw, all the Facebook pups are sharing your excellent Q&A with Mimesis Law…!

    wmd1 and I, are admins for a closed group of about 105 FDL pups, if any of y’all are on FB, or interested in joining…! (Jim…?) ;-)

  4. orionATL says:

    former secretary of state hillary clinton set up a private email network to manage her personal and official communications when she came into office. after she left office the existence of the private network was disclosed in a nytimes article which prominently featured possible criminal activity on clinton’s part.

    big scoop for the times’ washington bureau, right? wrong. that the article depicted a pseudo-scandal with a focus on dereliction or criminal behavior led to its being severely criticized by media insiders and eventually by the nytimes’ omnsbudswoman, margaret sullivan. the likelihood the story was part of a political attack on democratic party strength did not go unnoticed.

    here’s a sample of the criticism:

    http://www.newsweek.com/hillary-clinton-emailgate-312784?piano_d=.
    .

    http://publiceditor.blogs.nytimes.com/2015/07/27/a-clinton-story-fraught-with-inaccuracies-how-it-happened-and-what-next/?_r=0
    .
    http://www.newsweek.com/hillary-clinton-new-york-times-emails-357246?piano_d=1
    .

    http://www.nytimes.com/2015/08/02/public-editor/new-york-times-hillary-clinton-coverage-public-editor.html

    .

    http://www.theatlantic.com/politics/archive/2015/07/when-the-paper-of-record-fails-to-keep-the-record/399752/
    .
    in the emptywheel post above, ew has pointed out, as she has previously, that some organizations in the ic (intelligence community) are notorious for claiming that a document that even discusses circumstances surrounding a matter that has bern classified must be considered themselves retroactively classified. this inanely restrictive approach to classification would, for example, make any discussion of the diplomatic consequences of a drone strike difficult to conduct unless you had super-secure communications equipment, the kind of equipment cia director brennan, for example, also does not use on his personal phone.

  5. orionATL says:

    the media stoning of secretary clinton, her reputation and competence, most reminds me of the media trashing of democratic presidential candidate al gore’ person during the 2000 presidential campaign.

    that trashing helped lead the nation to president g. w. bush, thence to a wholely unnecessary invasion and war with iraq, thence in turn plowing the ground and sowing the seeds for the explosion of islamic armed aggression we have experienced after bush went home to paint dogs.

    you remember, right? gore said he invented the internet. ha. ha. ha. what a liar. had the twittering class been invented, they would have had a field day with that one. ha. ha. ha.
    twits!
    .

    in 2000 the new york times was also responsible for helping the stoning of gore’s reputation. in particular, nytimes columnist maureen dowd. i’m no fan of dowd. i think she may have had one of the most vacuous minds ever a political analyst has had. but she was much admired for her lush style of writing, pointedly sarcastic, funny, polished. for months dowd never tired of pointing out that gore was effiminate. or that he wore brown corduroy slacks or shirts she would never have bought for her husband (had she ever had one).

    the new york times’ dowd seems also to have had a thing about secretary clinton over the years – 21 of them to be exact.

    here is an article from media matters, a publication that supports clinton. i’ve heard other organizations were approached to write the story – the rnc, for example, or ariadne huffington’s huffington post, or the trump campaign, but for whatever reason they declined:
    .

    http://mediamatters.org/blog/2014/06/18/the-numbers-behind-maureen-dowds-21-year-long-c/199752

  6. omphaloscepsis says:

    As one example of the gulf between Al Gore’s public image circa 2000 and the truth, here’s what Vint Cerf said about Gore and the Internet:

    https://nettime.org/Lists-Archives/nettime-l-0009/msg00311.html

    A follow-up by another author:

    https://nettime.org/Lists-Archives/nettime-l-0010/msg00000.html

    “Politicians usually liked to pose by grand projects (dams, new freeways, youth centers, spacecraft) but Al Gore would pose by a router because he understood what it was going to mean in the near future.”

    In case that author is unfamiliar:

    http://boingboing.net/2008/05/22/steve-cisler-digital.html

    The truth is out there. It’s just obscured.

    • orionATL says:

      yeah, the truth is so easy to obscure, especially with fast-moving video, but it IS out there IF one has a skeptical mind and a working bullshit detector.

    • orionATL says:

      i just read the vint cerf piece. it makes me sad to think what this foolish country missed in leadership. we voted for a visionary and ended up with a chimp (excuse me, chump).

      we are 16 years past 2000 and still shoveling the shit and trying to get a leg up from that election – katherine harris manipulating the florida voter registry and, later, florida votes, the “brooks brothers'” staged riot, and the unforgiveable partisanship of antonin scalia in gore v bush.

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