Old and busted: You can trust Hillary Clinton with national security. New hotness: National security protections are so overrated! With the FBI probing the data trail from Hillary’s secret e-mail server and more than 300 e-mails flagged as possibly containing classified material, the strategy now is to claim that the material was overclassified from the start. Longtime Clinton defender David Brock told Politico that he wants to push the idea that classification is “elastic,” a term that has suddenly popped up more than once in the media of late.
In another Politico piece, Matthew Miller claims that the “real Clinton e-mail scandal” is classification itself. He claims that the appearance of classified material in more than 300 e-mails out of 6,000 is “far less scandalous than the headlines make it appear,” and that the true failure is overclassification of material that should be in the public domain:
As a former Department of Justice official who regularly dealt with classified information, I am glad a team of officials from the FBI, the intelligence community and other agencies is not currently reviewing every email I sent and received while I worked in government. If they did, they would likely find arguably classified information that was transmitted over unclassified networks—and the same thing is undoubtedly true for other senior officials at the White House, the State Department and other top national security agencies.
The sheer volume of information now considered classified, as well as the extreme, and often absurd, interpretations by intelligence officials about what is and is not classified, make it nearly impossible for officials charged with operating in both the classified and unclassified worlds to do so without ever mixing the two.
From the intelligence community’s perspective, the border between these two worlds looks like a brick wall. Many intelligence officials spend their entire day working inside so-called Sensitive Compartmented Information Facilities, designed to be impenetrable to eavesdropping, and using only separate, classified email systems to communicate with others in government. In these hermetically sealed environments, there is no need to ever sort through the differences between classified and unclassified information.
But for officials charged with dealing with the public, the media and other governments, the lines become much harder to draw.
This glosses over a couple of very important points. First, the proper way to reclassify material is to have the issuing authority review it. That duty does not fall to the Secretary of State or her aides, but to the agencies that produced the data, and their direct chain of command, all the way to the President. Not even Congress can declassify material, at least not directly. Users of this material have a positive responsibility to protect it, are briefed constantly on how to handle it while it remains classified, and face severe consequences for violating those protocols and laws, most definitely including prosecution when it involves willful violations or gross negligence (18 USC 793, especially in (f)(1), the application of which is not limited to classified material).
Second, while much of the e-mails flagged (so far) are classified at Confidential and Secret levels — where overclassification is a chronic issue — two e-mails contained information that the issuing agencies considered Top Secret and compartmented. That data came from the NSA and other signals intelligence operations, including satellite-gathered data. Those kinds of information carry high classifications for very substantial reasons, including the protection of our methods of collecting it.
Finally, all of this starts and ends with the exclusive use of an unsecured and unauthorized communications system located in Hillary Clinton’s house, effectively an unauthorized retention of classified material (a crime under 18 USC 1924). There is no valid reason for a federal official with compliance requirements not just for secure transmission of sensitive materials but also with the Federal Records Act to conduct official business through a home-brew server. It was a deliberate attempt to circumvent both responsibilities, and largely succeeded at the latter until the existence of the server became public. As a result, the State Department made numerous misrepresentations in courts in response to FOIA demands that involved communications from Hillary and her team that were required to be part of the public record.
Classifications are not “elastic” either, not to those who handle the material, and especially not when it comes to signals intelligence. They are required to handle it according to the markings no matter what they personally think of its necessity. If Hillary and her staff had a problem with the classification levels cited, then they should have requested a review of the material — and there is no indication that anyone ever did. Even if they had, Hillary and her team were still were required to comply with the laws and protocols while the material was still classified.
Overclassification may be a problem, but it’s not this problem. This problem is that a high-ranking public official secretly evaded legitimate constitutional oversight from Congress and the courts with this e-mail system, which recklessly endangered US national security for four years to service her own personal motives.
This is a pathetic attempt at spin, especially given the progression of defenses that have been offered over the last six months. The RNC’s James Hewitt notes the moving goalposts of Hillary defenders:
— James Hewitt (@JamesOHewitt) August 19, 2015
John Boehner sent out a fact check this morning by e-mail debunking this same claim:
Myth: “I had not sent classified material nor received anything mark classified.”
FACT: First, Clinton claimed in March that “I did not email any classified material to anyone on my email. There is no classified material.” Conveniently, after it was discovered that her email did, in fact, include classified information she claimed that “I did not receive anything that was marked as classified.” We know this “marked as classified” trick is a complete and total ruse, having debunked it here and here. As Clinton well knows, whether the information was marked or not matters little. Because writing classified intelligence information into an unclassified email does not make the information unclassified. It’s still classified. And it doesn’t excuse the fact that the classified information itself is still included in your emails in the first place. Those who have security clearances are responsible, and liable, for following proper procedures and the law.
Get ready for more spin down the road. Hillary’s defenders are nothing if not elastic.