Reclassification is no excuse

    ClintonmicFor nearly a year Hillary has been claiming there was no classified information on her unsecured home-based email server.  Now that a number of double-secret emails have been found on it, she puts forth two excuses: 1) the information wasn't so classified when she received it and 2) there's an ongoing inter-agency dispute over the proper classification.

    Even if both are true, Clinton still showed remarkably poor judgment in maintaining so many tens of thousands of emails in Chappaqua.  First, as discussed previously, she violated the plain language of the Code of Federal Regulations which, as of 2009, required government officials using a non-government email address to preserve their emails on their agency's recordkeeping system.  Second, as a long-time government insider, she had to know that information is routinely reclassified - sometimes at a higher level.  For this reason, even absent 36 CFR 1236.24 (Oct 2, 2009), Clinton should have made sure all of her government emails were secured at the State Department.


    Hal I thought about this conundrum

    I recall when Cheney handwrote that thing about Valerie Plame.

    I dunno, where is the motive for Hillary?

    I dunno.

    Should we re-examine messaging?




    Hal, as I've mentioned this before and you ignored it, I'll paste the complete text from EmptyWheel's site - that's - she's the progressive's best legal reviewer on complicated issues from the Manning leaks to the government security dragnet etc. Please read & tell me what the overriding important factors are, and what effect they have on your claims and even the title of your post.

    [PS - must be a bad weekend at Bernie's as you realize he's probably going to lose Iowa after all]


    What Agency Is Claiming Hillary Received SAP Emails?

    Published January 20, 2016 | By emptywheel

    The political world is a-twitter over the latest in the Hillary email scandal, Fox News’ reportthat 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.

    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.


    [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.

    Yes, the story here should be our broken system of classifying documents and both the lack of transparency that comes from over classification as well as the individual lives that have been ruined through deliberate misclassification. It's one more example of an issue that's been discussed for decades with nothing being done to rectify the situation. But we're not going to have a serious discussion of that very real and important issue during a presidential election. Instead we'll just get bullshit attacks on Hillary from Sanders supporters and republicans for the next 9 months.


    "[PS - must be a bad weekend at Bernie's as you realize he's probably going to lose Iowa after all]"

    It may well be a very bad Monday for America.  I have never predicted a Sanders victory.  It will be a terrible loss for all of us if he loses.  I am typing this from Sanders headquarters in West Lebanon, NH.  I spent the day knocking on doors.  The people to whom I spoke are poor/working-class.  They live in small often dilapidated homes.  They are working 2-3 jobs.  They are afraid that they will not be able to retire securely.  They want good public schools for their kids but can't afford the higher property taxes they know they'd need to pay to get them.  There is no way that a candidate with close ties to Wall Street, who supports job off-shorers, who does not support increased social security payouts, and who attacks single-payer healthcare as too expensive could be best for these folks and they know it.  Most said they'll vote for Bernie, some for Trump, one for Hillary.  He should win New Hampshire but I fear the rest of the country will heed the call of the elites and vote as they wish.


    Congratulations on acting on your convictions.  I'm chiefly posting to try to make sure that my dismissive "yawn" comment is not read as a response to this 5 30pm post.To be precise it is a comment on your Friday  10 34pm blog that started this thread,

    Thanks Flavius.  I wasn't going to respond to the "yawn" but frankly I don't get it.  I mean why don't you think it's a big deal that Clinton held classified information on an unsecured server?  I'll add that she doesn't think Edward Snowden deserves any clemency for divulging classified information because he was acting on behalf of our country and in fact did an awful lot of good and no harm as a result.

    Hal, frankly I don't get it. Both OceanKat & I posted links (oh right, I pasted the whole article) referring to the gross overclassification of information by government - not only the opposite of transparency, but absurdities to send people to jail - and you don't say fuck all, you just continue your la-la-la happy land comments as if nothing happened.

    And at the same time, you're acting contradictory by praising Snowden for releasing classified info and trashing Hillary for *possibly* having information on a *partially secured* server. So you want both Snowden and Clinton to go to jail, or you want both to be free? Hard to have it both ways.

    Me, I see a very screwed up system and am happy to have Snowden releasing info (as he seems to have done so fairly responsibly), and see people misusing classified info with impunity that dwarfs any risk that Hillary has posed (and I see how everyone from Republicans to Bernie fans is into using any crap innuendo and cherry-picked misleading iota of data to blow up into a scandal on Hillary, so even though in general I think it's bad to have data on private servers, I also think it's dangerous to give vengeful ill-intentioned bastards free rein to traipse through any and every comment she's made over the years trying to create an explosive sound-bite. If the Republicans hadn't manufactured the Benghazi scandal, I'm sure someone on the "left" would have.)

    She was a cabinet-level official in the government whether it overclassifies or not.  It was her responsibility to abide by the classification rules unless 1) they were illegal and harming our nation, and 2) trying to improve the system from within was unsuccessful or would have been futile.  In that case, her duty was to do exactly what Edward Snowden did - blow the whistle.  She did neither.  For reasons that remain obscure, she chose to flout or was ignorant of the rules and laws pertaining to government information.  Not a tough one.  I will say this is/was not in any case the deal breaker for me.  It's just another example of using poor judgment and (possibly) the arrogance to believe the rules don't matter or don't apply to her.

    Ah yes, the "arrogance" card, up there with the "entitled", "inevitable" and "dynasty" terms. No, she just simply does what a lot of people in government do, and folks like to make it a bigger deal than needed. Yes, we have a shitty decrepit email & information & security system in the DoD (Manning), NSA (Snowden), State (Hillarygate), and everywhere else in government. 15 years after 9/11 and other infosystems are poorly protected, and there were major breaches of our supposedly "secured" State Department system, which begs the question of whose emails were safer (the answer is probably neither, because they were sending back and forth).

    But at least they weren't keeping their nude selfies on iCloud.

    I understand you don't like "arrogant" which I suggest but do not insist fairly captures Clinton's mindset.  What adjective do you believe better describes Clinton's ill-advised decision to keep all of her emails on a private server in her house and not to preserve them at the State Department as she was required to do?

    This is typical for Hal. I posted a comment about Glass Steagall in which I provided links including a quote from Elizabeth Warren admitting that Glass Steagall would not have prevented the 08 crash and Krugman's opinion that Hillary's plan for regulating Wall Street was more comprehensive than Sanders. Yet a couple of weeks later he posted, "The Secretary's stalwarts are the ones who claim the millions of dollars she's collected for giving a handful of speeches to investment bankers play no role in her decision to oppose a new Glass-Steagall. " No Hillary supporter makes that claim. There are many valid reasons to oppose a new Glass Steagall as I laid out in my comment.  Just another strawman, just another lie.

    I see no purpose or value in a new Glass Steagall. The regulation of Wall Street through an expanded Dodd Frank will be much more effective. There is a legitimate debate to be had on this issue but Hal doesn't want to have it. He's rather just make shit up to insult Hillary supporters.


    "Elizabeth Warren, the Democratic candidate for Senate in Massachusetts, sent an e-mail to thousands of her constituents, pressing to bring back the law, which she said, 'stopped investment banks from gambling away people’s life savings for decades — until Wall Street successfully lobbied to have it repealed in 1999.'"

    Per Robert Reich, Hillary's opposition to a new Glass-Steagall is a "big mistake economically because [the repeal of Glass-Steagall led directly to the 2008 Wall Street crash, and without it we’re in danger of another one."

    Andrew Sorkin apparently has Warren admitting Glass-Steagall "didn't cause 2008 but.... " though couldn't find the quote (only found this interesting column where she opposed a Deputy appointment) - perhaps she's not invincible in judgment...  (Robert Reich I like, but I certainly don't take his claims as gospel - only as a healthy side of the story)

    Update: found it (worth reading in all) - "when I called Ms. Warren and pressed her about whether she thought the financial crisis or JPMorgan's losses could have been avoided if Glass-Steagall were in place, she conceded: "The answer is probably 'No' to both."

    From Forbes (if what OceanKat linked to already weren't enough):

    Glass-Steagall was enacted in 1933 to create a firewall between commercial and investment banks: commercial banks could not underwrite or deal in securities, and investment banks could not accept deposits. The Act also restricted commercial banks from being affiliated with any company that underwrote or dealt in securities.

    But by the 1990s, the affiliation provision was widely viewed as unnecessary and even harmful to financial institutions. In 1999, President Clinton signed GLB into law. Although it left the bulk of Glass-Steagall in place, it ended the affiliation restrictions, freeing up holding companies to own both commercial and investment banks.

    There is zero evidence this change unleashed the financial crisis. If you tally the institutions that ran into severe problems in 2008-09, the list includes Bear Stearns, Lehman Brothers, Merrill Lynch, AIG, and Fannie Mae and Freddie Mac, none of which would have come under Glass-Steagall’s restrictions. Even President Obama has recently acknowledged that “there is not evidence that having Glass-Steagall in place would somehow change the dynamic.”

    As for the FDIC-insured commercial banks that ran into trouble, the record is also clear: what got them into trouble were not activities restricted by Glass-Steagall. Their problems arose from investments in residential mortgages and residential mortgage-backed securities—investments they had always been free to engage in.


    I'll second Flavius' comment but it appears a growing number of Democrats are joining others in viewing HRC as untrustworthy and Sanders as a less incompetent  choice.

    Oh we've been playing this "untrustworthy" meme for 20 years now, not "a growing number".

    Twenty years? It is a family tradition.

    Twenty years ago HRC was only known for being closely tied to sleaze and corruption. It's only since she was at State that she displayed the Peters Principle and became what Andrew Levine says she is  'a dunce and an incompetent'

    No, Hillary did not violate any law or regulation that was in effect during her time as SoS. Use of a private email was common at that level of government. Numerous Bush officials had private accounts including Colin Powell and Condi Rice. When Powell was asked what he did with the emails after he left office he said, "I just erased the whole thing." Kerry is the first SoS to exclusively us a government account. Even Jeb Bush had a private email he used during his time as gov of Fl. Of course it's only a scandal when Hillary does it.

    I believe government officials should all use a government account. I'm glad the regulations have been tightened up to enforce that. But there is still no evidence that Hillary broke any law or regulation and she shouldn't be condemned for what was fairly common before her.


    The regulation in effect on October 2, 2009, just after she took office and after Powell and Rice had served their terms, provided:

    Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency record keeping system.

    36 CFR 1236.24 (Oct 2, 2009) (emphasis supplied).

    Did Clinton preserve her emails in the appropriate agency's record keeping system?

    Latest Comments