Photo courtesy of Hillary Clinton for President

Emails Were “Born Classified” According to Federal Policy
| published August 21, 2015 |

By R. Alan Clanton Thursday Review editor

One of the noticeable fixtures of the ongoing controversy over email accounts used by Hillary Clinton during her tenure as America’s top diplomat has been the reliably loyal position which U.S. State Department officials have taken regarding their former chief.

State Department spokespersons have sometimes delicately skirted the issue of whether Clinton was in direct violation of State’s own policies regarding emails and correspondence, just as they have been generally supportive of her version of events—including her ongoing contention that no classified information or top secret material was sent or received using the now infamous private email account, or using the privately crafted server.

Both Clinton and her former colleagues at the State Department have stressed numerous times that more recent classifications stamped onto past correspondence are the result only of current interpretations of past data—and do not represent examples of Clinton or anyone else violating fundamental rules regarding national security and sensitive information.

But Reuters and other news organizations—in consultation with a variety of security experts—have concluded that no such blanket permission ever existed within the carefully crafted rules set down by the U.S. State Department’s own policies pertaining to correspondence.

In fact, even a layman’s reading of State Department rules shows that its own policy is to consider all transactions, correspondence, and transfers of data to be classified from the get-go. In other words, those emails were all classified unless otherwise released or cleared.

“It’s born classified,” explained J. William Leonard, once the chief of the U.S. Information Security Oversight Office (ISOO), an agency which helps to establish the guidelines and protocols regarding top secret or sensitive information, especially as it relates to emails and other electronic communications. Leonard served in the White House during the administrations of Bill Clinton and George W. Bush, and also managed the National Archives & Records Administration.

Leonard told Reuters and other reporters that at the level in which Clinton worked—a top cabinet-level role as the nation’s top diplomat—all correspondence is inherently classified at the instant it is sent or received, and to assume otherwise is not only a direct violation of U.S. government policy, but also dangerous. He called the State Department’s soft-peddling on the topic “blowing smoke.”

On Thursday of this week, Reuters found at least 30 emails from a small sampling dating from 2009 in which “classified” or “top secret” were included in the classification established by the State Department at the time the correspondence was sent. Two weeks ago, the Inspector General for the intelligence community found between two and four emails in which “top secret” or “classified” were stamped. At least two of these emails included satellite intelligence. But neither Clinton nor anyone at the State Department acknowledged that the emails in fact contained anything truly classified, and a dispute broke out between branches of government over both the semantics of “classified” and who—in fact—was responsible for sending or receiving those emails. In fact the State Department has politely dismissed the findings of the Inspector General.

For journalists and the average American, this has created a fog of sorts over what is meant by terms like “top secret” or “classified” or “sensitive,” but Leonard says that such fine-distinctions are merely prevarications. In Clinton’s role as Secretary of State, all emails must be presumed sensitive and classified, period.  And the use of her privately managed email account was, in this sense, an immediate violation of governmental policy.

The FBI, in the meantime, has taken possession of the server which once resided in the Clinton home in Chappaqua, New York. That server is now at the center of the media storm over how Clinton managed her emails during her tenure at State. Mystery still surrounds some aspects of the server’s life, but what is known is that it was installed in the Clinton residence shortly before she took over at State. The server was connected online through a local internet provider, and most of Clinton’s emails passed through that server during that period. Later, after Clinton left her post at State, the server was wiped clean by Clinton staff, then—perhaps months later—the server was again purged by a tech firm in New Jersey. The server then migrated west to Denver, where it was installed in the small offices of Platte River Networks.

Last week, Platte River staff turned over the server to the FBI. Forensic analysts with the FBI will try to reconstruct the life of that server, but it is unclear how much success IT experts will have in tracking who had access to it over time, or how they gained that access. Though it has been careful to characterize its investigation as “non-criminal,” the FBI wants to know if the server was in fact as secure as Clinton and her staff have indicated, or if the machine was penetrated by outside hackers—in particular foreign eyes. Clinton has offered no evidence that the server was protected in any manner other than the most cursory forms of anti-virus protection, and she and her staff have maintained that the server was inherently safe because it was installed in the Clinton home, which was at all times under the protection of the U.S. Secret Service.

Though Clinton has repeatedly sought to deflect and diffuse the controversy as partisan politics and as part of a Republican witch hunt, the driving force behind the current fracas has been several news organizations—including the Associated Press and Reuters, along with reporters for several major networks. Speaking to reporters in Iowa and again in Las Vegas, Nevada, Clinton has been both dismissive and irritable as the questions about her email account and the server have come in rapid-fire succession. Clinton become visibly angry in Las Vegas this week when reporters pressed her on the issue of her emails, insisting that her use of the server was “legally permitted” under the circumstances, and waving aside the brouhaha as entirely of the media’s making.

“Nobody talks about it other than you guys,” Clinton said in response to a last question on the subject tossed out by a reporter as the press conference ended.

For her part, she has maintained all along that the use of the private email account was strictly a matter of convenience and simplicity—it required no complex account changes to the use of her Blackberry device nor to computers at the Clinton home. She has also balked at the notion put forth by some Republicans in Congress, especially those on the Senate Committee investigating the terror attacks in Benghazi, that her private email account and the off-site server were meant as a way to avoid transparency or accountability. In emails sent last week by the Clinton campaign to Clinton’s supporters and donors, campaign staffers have stressed that Hillary Clinton has broken no laws, nor has she violated government policy.

But Clinton’s use of the private email account seems—on the face of it, at least—in direct violation of the Federal Records Act, originally written in the late 1950s, but updated and amended on several occasions to adjust to changing technology. The Federal Records Act was retooled in recent years to ensure that correspondence by government officials is tracked, sorted, collated and filed properly—and for a variety of reasons, not just accountability. Such records, especially at the cabinet level, may be of critical importance not just for the accurate record-keeping and for the history books, but also to guarantee the sort of transparency required of a government in a democracy.

In the spring, the White House said officially that it knew nothing of Clinton’s exclusive use of the privately-crafted email account. But this also proved false: numerous emails later surfaced in which David Axelrod and Rahm Emanuel—early in the new administration of Barack Obama—each requested staff clarification as to exactly what email address Clinton would be using as a top member of Obama’s cabinet. The tone of the emails from Axelrod and Emanuel seem to circle what now seems an obvious target: why isn't the Secretary of State using a government-managed email account?

Since those revelations have come to light, the White House has largely distanced itself from the Clinton campaign and further questions regarding the email account and the homebrew server. When reporters have asked for clarification or amplification of earlier White House claims that it did not know how or why Clinton chose to use the private email account, administration spokespersons demur, or dodge the issue altogether. In the meantime, the issue has moved steadily into the realm of the FBI and other governmental bodies.

Multiple lawsuits have been brought—some by independent or conservative watchdog groups, others by media organizations—using the Freedom of Information Act as leverage to push the U.S. State Department into swifter action. A group called Judicial Watch, a conservative watchdog group, has essentially accused the State Department of deliberately stalling and dragging its feet. When the State Department originally crafted a plan to release Clinton’s emails in small packets every 30 days, a Federal judge presiding over some of the lawsuits issued an order insisting that the State Department move more quickly.

Clinton has agreed to the release of about 30,000 emails sent or received during her tenure at State, but has acknowledged deleting another roughly 31,000 which she says contained only personal information. This week another Federal judge—one appointed by then-President Bill Clinton in the 1990s—ordered the State Department to work with the FBI to recover as many emails as possible from the private account, and to attempt to extract any emails from the now-wiped server. In a hearing on Thursday, U.S. District Judge Emmet Sullivan indicated that if “this employee had followed government policy” none of the time-consuming legal fracas would be necessary. Those in the room understood that the “employee” the judge referred to was Hillary Clinton.

Sullivan also wants to understand how neither the State Department nor the White House disallowed Clinton from her maintenance of a private, unsecured email account, despite strict Federal policies regarding the security of such correspondence. Sullivan has pressed attorneys for the Justice Department to make sure that State accounts for how it managed the issue of Clinton’s “personal” versus “work” emails, and he has also asked that forensic experts examine the server for evidence that outside parties gained access to Clinton’s emails.

The complexities of communicating in a digital world make security and safety sometimes difficult. The State Department’s own rules, which are found in its Foreign Affairs Manual and other standard handbooks for employees, direct that State Department workers and managers maintain the utmost care when handling any materials labelled as “classified,” “secret,” and “top secret.” The current dust-ups between agencies indicate that not everyone in the U.S. government is in total agreement as to exactly what these classifications sometimes mean.

What is clear is that Clinton chose, for the sake of personal convenience (we’ll assume her explanation is the honest one), the use of a demonstrably unsecure form of official communication in defiance of Federal guidelines, and then made the decision personally to pick and choose what correspondence to keep and what to toss aside. And neither anyone at the State Department nor at the White House had the backbone or the will to confront what they must have surely known was a careless pattern of high level communication in a dangerous digital world.

Related Thursday Review articles:

Server May Yield More Problems for Clinton; R. Alan Clanton; Thursday Review; August 19, 2015.

Denver IT Firm Regrets Clinton Contract; R Alan Clanton; Thursday Review; August 20, 2015.