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Reports are starting to appear that discuss a private email server used by Democrat Presidential candidate Hillary Clinton while she was serving as Secretary of State. Not all media outlets are tracking the story, but enough are that people might wonder about whether or not they should take the allegations seriously. The answer to that question is you should. The reason why you should is significantly more complicated.
How We Got Here
On January 14, 2016, I. Charles McCullough, III sent a letter to Richard Burr (R-NC) and Bob Corker (R-TN), the chairmen of the Senate Select Committee on Intelligence and the Senate Foreign Relations Committee, respectively. That letter gives partial details of the results of an investigation in to the private email server used by then Secretary of State Hillary Clinton. In that letter, McCullough reports he received two sworn statements from a single element of the Intelligence Community (IC).
Those sworn statements suggest dozens of emails contained classified information. The information was determined by that element of the IC to be at the CONFIDENTIAL, SECRET, TOP SECRET, and Special Access Program (SAP) levels of classification.
The second half of the letter details the State Department’s non-response to a request to use a classified computer system for review of documents solicited under a Freedom of Information Act request. Finally, the Office of the Inspector General (OIG) was, at the time of the letter, still assessing issues with a request for the State Department Freedom of Information Act (FOIA) office to seek inter-agency classification expertise in applying FOIA exemptions.
The last half of the letter isn’t particularly important, in as much as it’s the OIG reporting on some tangentially associated topics to the email server itself. However, the characterization that “dozens of emails” containing classified information from a single member of the IC were on Secretary Clinton’s email server is super important.
McCullough was nominated by President Obama in 2011, and confirmed unanimously for the newly created position of overseeing 16 intelligence agencies and the Director of National Intelligence, Inspector General of the Intelligence Community. The confirmation took place on November 7, 2011, when the Democrats were in the majority in the Senate.
Since the report was delivered, the number of emails with classified information in them has ballooned to over 1,000. As recently as January 26, former House Majority leader Tom DeLay told the New York Daily News the following:
I have friends that are in the FBI, and they tell me they’re ready to indict, they’re ready to recommend an indictment.
DeLay joins former Attorney General Michael Mukasey in calling for charges to be brought against Clinton. The FBI cannot indict Clinton or her staff without a federal grand jury being convened and bringing charges against Clinton’s staff or Clinton herself.
Classified IT and Networks
Secure IT is a huge topic full of extremely dry nomenclature and process document jargon, so I am going to try and distill it down to its essence.
Each entity of the United States government that has a need to protect certain pieces of information assigns a classification to that information. Those classifications come in several flavors—CONFIDENTIAL, SECRET, TOP SECRET, and SAP are commonly used among many entities in the US government. These classifications have a hierarchy based on the amount of damage to the United States, or its interests, dissemination of the information could cause. For example, SECRET information could cause more damage than CONFIDENTIAL information; TOP SECRET information could cause more damage than SECRET information; and so on.
Each classification level is a world unto itself in terms of requirements for IT and network resources. The most important requirement when discussing IT and networks in classified environments is the computer systems and networks at different levels are air gapped, meaning a person cannot move information from one classification level to another classification level, up or down, without moving the data to a piece of media, or manually copying the information from one system to another system by, for example, writing information from a classified computer system in a notebook and typing the information into an email on an unclassified computer system.
Everyone who obtains security clearance is trained regularly on the procedures for safeguarding classified information, taking information from a higher classification level to a lower classification level, and the consequences for violating the rules and regulations for safeguarding classified information.
What Was Done Was Done Deliberately
We don’t know yet who is ultimately responsible for putting classified information on Clinton’s private server, and there’s every possibility we’ll never know. That said, whoever did put the classified information on Clinton’s server did so knowingly. As I mentioned above, someone had to take many deliberate steps in order to get just one piece of classified information into a single email. According to the letter on January 14, there are dozens of emails that contain classified information. According to new information, there are thousands of emails that contain classified information.
Among the emails the State Department released in January was an email thread with then Secretary Clinton where aid Jake Sullivan promised to give Clinton “tps,” possibly short for talking points, about a topic that’s been redacted, presumably for security reasons. In that thread, Clinton responds to Sullivan she’d not received the talking points yet. Sullivan responds to Clinton the staff was having difficulty sending a secure fax, but the staff was working on it.
In response to that message, Clinton says, “If they can’t, turn into nonpaper w no identifying heading and send nonsecure.”
It would appear, if the contents of the email are accurate, Secretary Clinton herself directed members of her staff to violate security procedure for at least two elements of the IC of the United States.
It is at this point we have to detour away from the server itself and in to United State Code, Title 18, Section 793.
Gathering, Transmitting, or Losing Defense Information
Title 18, Section 793 of US Code is the section of United States law that criminalizes unauthorized disclosures of classified materials. You can read the exact words of the section for yourself, but the most relevant subsections are b, c, and d.
Classified information was copied. We know this because classified systems are air gapped from the “nonsecure” systems Clinton references in one of her emails.
Classified information was transmitted and received at least dozens of times, according to the AIG report from January 14 to thousands of times, according to reports from later in January.
The best case scenario for Secretary Clinton is these violations are the result of a directive given in a time of high stress, where the staff who received the directive went far beyond the intent of the directive to commit massive numbers of ill-advised acts. Based on the volume of violations, I personally find the best case scenario hard to swallow.
The worst case scenario is staff members of the State Department violated the Espionage Act dozens to thousands of times as directed by then Secretary of State Hillary Clinton.
Theoretically, a federal grand jury could sort all this out by hearing the evidence presented and determining whether indictments are warranted.
The Dodging from the Clinton Camp Stinks of Guilt
A State Department official, in response to a call for comment by CNN, said the following:
I’m not going to speculate about whether the document being discussed was classified. Generally speaking, I can say that just because a document is sent via a secure method doesn’t mean that it’s classified. Many documents that are created or stored on a secure system are not classified.
It is true not all documents created or stored on a secure system are classified; however, it is also true secure system policies generally require all documents created on a secure system to be appropriately marked. Furthermore, it is generally a violation of security policy to remove markings from a document unless authorized by information security personnel.
Clinton’s assertion classified information on the email server was not classified at the time it was sent does not hold weight, either. Documents do not become classified at the wave of a wand. Documents become classified based on the classification of the data that appears in the document. Information becomes classified based on guidance from a governing document maintained by information security personnel.
If the current discussion was about an isolated piece of information—a code name, a target, the identity of an intelligence asset, etc—then it might be possible a guidance document for classifying that isolated piece of information hadn’t been written when the information was sent to Secretary Clinton. However, given that the number of emails with classified information is somewhere in the dozens to thousands range, it’s highly unlikely the status of all of that information was pending when it was sent.
And even if that were the case, the proper thing to do from a national security perspective would have been to err on the side of caution, and wait for a secure fax to become available.
Finally, the idea I. Charles McCullough is conspiring with Republicans in congress to discredit Clinton feels desperate. An Obama appointee confirmed unanimously by a Democratic majority Senate to oversee the IC in the United States suddenly turns “traitor” to conspire with congressional Republicans to discredit the Democratic front-runner for President of the United States (POTUS)?
I don’t buy that, either.
Fit to be POTUS
There are few possibilities going forward. Either Secretary Clinton had classified information on her email server, or directed staff members to violate security policy, or both, or neither. If a grand jury is convened, and indictments are brought Clinton or her staff, Clinton’s credibility as a person who can safeguard the people of the United States at home and abroad is completely destroyed. How could anyone trust a Commander in Chief who can’t even treat classified information properly? It’s not out-of-bounds to say anyone who mishandles classified information or who ordered staff members to mishandle classified information is unfit for the office of POTUS.
If, however, the classified data does not exist, or the emailed directive to remove markings and send classified data nonsecure is being taken out of context, a grand jury is convened and provides no indictments to anyone, the political backlash against Republicans in congress should be swift and brutal. I will be one of those lashing back.
Ultimately, I hope a grand jury is convened and the evidence provided, so this messy and embarrassing chapter of the current election cycle can end and We, The People can return to the business at hand, selecting the person best suited to lead America.