We’re going to get a little deeper into the way classified material and its disclosure is handled here, but stick with the details. They show the cleverness of Clinton’s people in manipulating existing processes to mask classified material contained in her emails.
FOIA in Theory
In theory, all U.S. government documents, including Clinton’s emails, are subject to release under the Freedom of Information Act (FOIA). A classified document can still be, in theory, declassified and released, perhaps after enough time has passed that the information is no longer sensitive, as in the case, for example, of WWII messages about planned invasions and the like.
However, the FOIA provides for nine specific exemptions, conditions under which information can be withheld, classified or not. The full list is here, but we’ll focus on just two in the context of the Clinton emails: B1 and B5.
B1 is simple: the document contains properly classified material and cannot be released until the material is declassified, if ever. A no-brainer example would be a list of undercover CIA agents. That is never going to see daylight.
B5 refers to deliberative process, the details of how the government makes policy, the back-and-forth principals receive, the “how” of how decisions are made. Such information does not necessarily have to even be classified, and marking it as B5 does not in any way imply it is classified.
The theory behind the existence of B5 is that advisors need to be able to share advice fully and frankly, throwing out at times odd ideas, playing devil’s advocate, and the policy maker free to engage in a full discussion of options, without concern that all that messy process will become public. Some in government also feel exposing the processes by which decisions are made assists America’s adversaries.
B5 is near-constantly misused by government to block information that should be released, but we’ll stick with theory for the time being.
Changes in Clinton Email Exemption Categories
Reports suggest at least four Clinton emails had their exemption markings changed to a category that shields the content from the public, in what some believe is an effort to hide the true extent of classified information on the former secretary of state’s server.
The emails in question were originally redacted under exemption B1, meaning the information in them was withheld because that information was properly classified. The impact of that on Clinton was two-fold: it confirmed that the emails held classified contrary to her claims, and it set up release of the information simply by someone with the authority to declassify it.
Changing the exemption to B5, which was done by State Department lawyers (more below), removed the stigma of classified material in unclassified emails. Perhaps more importantly, it placed the authority of release on State itself. The Courts have long upheld the right of agencies to withhold B5 exempted information indefinitely, meaning State could deep-six the information in those emails forever.
See what they did there?
The process by which the Clinton emails were remarked, if true, speaks to additional naughty acts, centered again around State’s primary political troubleshooter, Patrick Kennedy.
According to congressional testimony, at least one of the lawyers in the State Department’s Office of the Legal Advisor, where the changes were made, is Catherine Duval, who also handles the release of documents to the Benghazi Select Committee. She previously was the attorney in charge of the Internal Revenue Service’s email production to Congress. And small world; Duval once worked for the same firm as Clinton’s private attorney, David Kendall.
Anyone see any pattern here?
Fox News was told there were internal State Department complaints that Duval’s work, and that of a second lawyer also linked to Kendall, created a conflict of interest during the email review.
The disagreement between some State employees and Duval over the changed exemption markings grew so heated that a final decision had to be kicked upstairs.
Pat Kennedy, Again
Now wait for it — that decision made upstairs, in favor of Clinton, the B5 exemption, was made by Undersecretary of Management Pat Kennedy, State’s own pointman briefing Congress on State’s proper handling of the entire Clinton email affair. Kennedy is also very likely the most senior State official under the secretary to have approved her use of a private email server.
Judicial Watch is now seeking a deposition of Kennedy in a case scrutinizing Clinton aide Huma Abedin’s status as a special government employee. “All these issues fall under his responsibility,” Judicial Watch said.
Asked to respond to the allegations, a State Department official added that the lawyers do not have the final say on the codes, emphasizing it is a “multi-step review.”
Indeed, a multi-step review, albeit one that ends with Pat Kennedy.
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