Earlier today, the FBI released its investigative notes on the Hillary Clinton e-mail scandal, including its notes on their interview of Hillary in June. It makes for an interesting read, and a couple of eye-popping moments. For instance, agents showed Hillary the e-mails containing information that investigators had verified had been classified at the time of transmission, including Top Secret/SAP — programs so sensitive that even their names were classified. According to pages 26-7 of the first part of the 302, Hillary told them that she believed that the information wasn’t classified, and was not a problem even if the data had gotten into the hands of foreign governments:
Say what? The TS/SAP classification relates to material so sensitive that only Cabinet-level officials and their designees can create these programs. According to the guiding document, Executive Order 13526 Section 4.3, the basis of creating and applying an SAP classification for a program is:
(1) the vulnerability of, or threat to, specific information is exceptional; and (2) the normal criteria for determining eligibility for access applicable to information classified at the same level are not deemed sufficient to protect the information from unauthorized disclosure.
And the need for SAP designation has to be exceptional to normal classification criteria:
(1) Special access programs shall be limited to programs in which the number of persons who ordinarily will have access will be reasonably small and commensurate with the objective of providing enhanced protection for the information involved.
The EO also includes this in the notes:
(oo) ‘‘Special access program’’ means a program established for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.
In other words, the need to protect information classified Top Secret/SAP is even higher than it is for Top Secret information. The same EO defines Top Secret as “applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security” [emphasis mine].
In the same interview, Hillary acknowledged that her role included compliance with all classification processes. According to this same EO, only the producing agency can classify information downward, and then any dispute over whether information was damaging has to be resolved either by the originating agency or the Information Security Oversight Office (ISOO). Neither of those happened — Hillary apparently just decided that the TS/SAP data wasn’t classified entirely on her own.
Next, let’s look at the SECRET/NOFORN designation. Executive order 13526 states that Secret applies to information whose exposure would “cause serious damage to the national security.” NOFORN, according to the DoD, applies to “intelligence which an originator has determined meets the criteria of Reference (k) and which may not be provided in any form to foreign governments (including coalition partners), international organizations, foreign nationals, or immigrant aliens without the originator’s approval” [emphasis mine]. Again, it appears Hillary disregarded this provision and decided on her own that this SECRET/NOFORN intelligence would cause no damage, even though it wasn’t her call to make.
That is not “extreme carelessness.” That is gross negligence, chargeable under 18 USC 793(F), the more so because of the responsibility vested in the office of Secretary of State to ensure that protections are properly applied to national-security-sensitive information. If the FBI thinks this vindicates their decision not to press the case, they are very much mistaken.
Update: I’m sure this had nothing to do with intent, either:
This is crazy. 3 weeks after NYT publish Clinton email server story, there was a big wipe of her emails conducted pic.twitter.com/tlO0KJWYgz
— Chris Cillizza (@TheFix) September 2, 2016
Update: How can Hillary claim to know better about proper classification than the originators of classified information when she doesn’t even know how material gets classified?
Clinton told FBI agents she could not remember ever receiving any training for how to preserve federal records or treat classified material.
“Clinton could not give an example of how classification of a document was determined,” the FBI wrote in its notes.
“Clinton did not recall receiving any emails she thought should not be on an unclassified system,” the FBI wrote.
And this is jaw-dropping:
“Clinton stated deliberation over a future drone strike did not give her cause for concern regarding classification,” the notes said.
It didn’t cross her mind that information on upcoming military operations might be classified? Yes, let’s make this woman Commander in Chief!
Update: “Wiped? Like, with a cloth?”
Clinton thought the "C" denoted classified information had something to do with alphabetical order pic.twitter.com/015OmckALZ
— Chris Cillizza (@TheFix) September 2, 2016
Update: Here’s an important point to remember about Hillary’s claims of ignorance on classified markings. She served on the Senate Armed Services Committee from 2003-9, a panel that routinely handles classified information of practically every level. Are we to believe that Hillary never got briefed on the meanings of classified markings and the procedures required to protect classified information during that entire time?