As the race for The White House heats up, it’s looking increasingly likely that the biggest threat to Hillary Clinton’s bid for the US Presidency will in fact be Hillary Clinton.
On the GOP side, Donald Trump has thus far proven to be "gaffe proof", as a series of vitriolic attacks against everyone from Mexicans to war heroes has only served to increase his lead over rivals, prompting some to brand the incorrigible billionaire the "Teflon Don", after the late New York crime boss John Gotti. Fortunately for Hillary, Trump’s popularity has further splintered an already divided Republican party, and in the eyes of some commentators, this makes the road (back) to The White House that much easier for Clinton.
That is unless the controversy surrounding her handling of classified e-mails mushrooms into a bigger public relations nightmare than it already is and as we noted late last month [6], it now looks as though it won’t be easy for the presumed Democratic frontrunner to shake accusations that she violated protocol.
"It's not that Donald Trump needed help in his juggernaut campaign across the GOP presidential primary, but the flamboyant billionaire got an unexpected present from the WSJ which may have just crippled the chances of his biggest democrat competitor as well, Hillary Clinton," we wrote, introducing a WSJ piece which cited [7] an internal government review showing that the former Secretary of State, "sent at least four emails from her personal account containing classified information during her time heading the State Department." Here’s more from McClatchy [8]:
The classified emails stored on former Secretary of State Hillary Clinton’s private server contained information from five U.S. intelligence agencies and included material related to the fatal 2012 Benghazi attacks, McClatchy has learned.
Of the five classified emails, the one known to be connected to Benghazi was among 296 emails made public in May by the State Department. Intelligence community officials have determined it was improperly released.
Revelations about the emails have put Clinton in the crosshairs of a broadening inquiry into whether she or her aides mishandled classified information when she used a private server set up at her New York home to conduct official State Department business.
While campaigning for the 2016 Democratic presidential nomination, Clinton has repeatedly denied she ever sent or received classified information. Two inspectors general have indicated that five emails they have reviewed were not marked classified at the time they were stored on her private server but that the contents were in fact "secret."
That last passage is critical. Having a security clearance comes with a certain amount of responsibility and those who are privy to potentially sensitive information are expected to exercise good judgement.
In other words, whether or not the information carried a giant red "top secret" stamp isn’t the relevant question, nor is "no harm no foul" a legitimate after the fact defense.
And that, apparently, is the difference between a Clinton and say a Manning or a Snowden - that is, holding Hillary (or any other member of what Jimmy Carter would call [9] America’s "political oligarchy") to the same standards as everyone else turns out to be an uphill battle.
Here’s Peter Van Buren writing for Reuters [10] with more on what’s wrong with Clinton’s defense.
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What everyone with a Top Secret security clearance knows – or should know
In the world of handling America’s secrets, words – classified, secure, retroactive – have special meanings. I held a Top Secret clearance at the State Department for 24 years and was regularly trained in protecting information as part of that privilege. Here is what some of those words mean in the context of former Secretary of State Hillary Clinton’s emails.
The Inspectors General for the State Department and the intelligence community issued astatement saying Clinton’s personal email system contained classified information. This information, they said, “should never have been transmitted via an unclassified personal system.” The same statement voiced concern that a thumb drive held by Clinton’s lawyer also contains this same secret data. Another report claims the U.S. intelligence community is bracing for the possibility that Clinton’s private email account contains multiple instances of classified information, with some data originating at the CIA and NSA.
A Clinton spokesperson responded that "Any released emails deemed classified by the administration have been done so after the fact, and not at the time they were transmitted." Clinton claims unequivocally her email contained no classified information, and that no message carried any security marking, such as Confidential or Top Secret.
Yet even if retroactive classification was applied only after Clinton hit "send" (and State’s own Inspector General says it wasn’t), she is not off the hook.
What matters in the world of secrets is the information itself, which may or may not be marked "classified." Employees at the highest levels of access are expected to apply the highest levels of judgment, based on the standards in Executive Order 13526. The government’s basic nondisclosure agreement makes clear the rule is "marked or unmarkedclassified information."
In addition, the use of retroactive classification has been tested and approved by the courts, and employees are regularly held accountable for releasing information that was unclassified when they released it, but classified retroactively.
It is a way of doing business inside the government that may at first seem nonsensical, but in practice is essential for keeping secrets.
For example, if an employee were to be handed information sourced from an NSA intercept of a foreign government leader, somehow not marked as classified, she would be expected to recognize the sensitivity of the material itself and treat it as classified.
In other cases, an employee might hear something sensitive and be expected to treat the information as classified. The emphasis throughout the classification system is not on strict legalities and coded markings, but on judgment. In essence, employees are required to know right from wrong. It is a duty, however subjective in appearance, one takes on in return for a security clearance.
"Not knowing" would be an unexpected defense from a person with years of government experience.
In addition to information sourced from intelligence, Clinton’s email may contain some back-and-forth discussions among trusted advisors. Such emails are among the most sensitive information inside State, and are otherwise always considered highly classified.
The problem for Clinton may be particularly damaging. Every email sent within the State Department’s own systems contains a classification; an employee technically cannot hit “send” without one being applied. Just because Clinton chose to use her own hardware does not relieve her or her staff of this requirement.
Some may say even if Clinton committed security violations, there is no evidence the material got into the wrong hands – no blood, no foul. Legally that is irrelevant. Failing to safeguard information is the issue. It is not necessary to prove the information reached an adversary, or that an adversary did anything harmful with the information for a crime to have occurred. See the cases of Chelsea Manning, Edward Snowden, Jeff Sterling, Thomas Drake, John Kiriakou or even David Petraeus. The standard is "failure to protect" by itself.
