State Department Says It Will Take 75 Years to Release All Requested Clinton Emails
The State Department this week, apparently with a straight face, defended its claim that releasing all the emails sought by the Republican National Committee (RNC) would take 75 years.“It’s not an outlandish estimation, believe it or not,” spokesman Mark Toner told reporters. “It’s an enormous amount of FOIA [Freedom of Information Act] requests,” he added. “Very broad and very complex.”
The RNC has sued the State Department seeking all emails to or from Clinton’s former chief of staff, Cheryl Mills, senior adviser Jacob Sullivan and undersecretary for management Patrick Kennedy from 2009 to 2013. The State Department has claimed that the result would yield roughly 1.5 million pages of documents that it and other federal agencies would need to go through page by page.
The Department claimed in a court filing last week trying to kill the RNC lawsuit that the emails are “complex” and include “classified documents and interagency communications that could have to be referred to other agencies for their review.”
Because the State Department expected that it could process roughly 500 pages per month, processing all 450,000 pages would take 900 months, or 75 years.
FUN POINTS:— If Clinton had not used her private server while in office, any FOIA requests for her documents would have been processed all along from 2009 forward, instead of being clumped into a huge pile just months before the election. If blocking FOIA was indeed her goal (it was), she did an excellent job.
— Also, that bit about “classified documents and interagency communications that could have to be referred to other agencies for their review” is kinda noteworthy given that any emails to and from Clinton traveled via unclassified means. But whatever.
— Lastly, it is sort of quaint that State’s estimated processing time seems based on the assumption that however many people are now working on the FOIA review will not increase despite increased demand and despite the delays being caused by Clinton’s own decision to not use official email.
I gotta say, State is really betting the farm, the cow and the corn on this one, hoping Clinton is elected and that most of this will just fade away, or really be sucked down a 75 year long tunnel as the Republicans hold hearings until the end of time. Because a Republican administration would basically at this point gut the State Department and turn the main building into a Trump mini-mall.But wait, seriously, 75 years? How the hell can a spokesperson say those things without a room full of reporters throwing their pens at him?
BONUS: But it’s just a fishing expedition, says every Hillary supporter. To which one must consider saying, f*ck you. The Freedom of Information Act requires the government to turn over records for whatever purpose. There is no part of the Act that allows anyone to judge the reason for the request, so just go away and shut up, because you’ll vote for her even if she skins a puppy alive on the Jimmy Fallon show. The rest of us still are in possession of our critical thinking skills for the time being.
Graphic courtesy of friend of the blog Mac Beaulieu
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Intel Agencies: Clinton Emails Match Top Secret Documents
Clinton supporters, erroneously, make much out of the idea that of the many, many emails that passed through her private server, none were “marked” classified. They claim that, when in fact thousands of those same emails are indeed now marked classified, that is just after-the-fact Washington squabbling.
So this new information — that America’s intelligence agencies now say the contents of some of those unmarked emails match the contents of their own classified documents — is a big deal. It also suggests just how Clinton’s unclassified server came to be loaded up with classified material.
Several agencies have told Congress that Hillary Clinton’s home server contained some emails that should have been treated as TOP SECRET because their wording matched sections of some of the government’s most highly classified documents. These reports are the first formal declarations by intel agencies detailing how they believe Clinton violated government rules when highly classified information in at least 22 email messages passed through her unsecured home server.
So how this all work?There is no physical connection between the U.S. government’s unclassified and classified systems; you absolutely cannot email a document from the dark side to the light. Properly configured, classified systems should not allow for removable media, to lessen the chance for information transfer (one of the reasons Chelsea Manning was able to smuggle out so much classified was because his computer was not properly set up, and included a DVD burner. We still don’t know how Ed Snowden got his documents out.)
Given these restrictions, the way anyone can move information from one system to the other is what’s called “sneakernet,” after the athletic shoes. You print out a marked, classified document, and then retype the parts you like into the unclassified system. You of course do not add the marking — TOP SECRET — because that would be like robbing a bank and then sticking a sign on your chest saying “Attention Cops, I’m the Guy Who Just Robbed a Bank.” Including the classification markings would be admitting to a crime.
So that is why Clinton’s emails had no classification marking on them even though the contents of those emails contained information that was indeed classified at the time it was transmitted. That is why the emails are a big deal, no matter what smokescreen Hillary wants to throw up.As secretary of state, Clinton had access to America’s most sensitive information, the same things on her server now with their classification restored.
If the Department of Justice allows it that no one goes to jail over this, then someone should go to jail over that.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Understanding Why the Clinton Emails Matters
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 a statement 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.
The key issue in play with Clinton is that it is a violation of national security to maintain classified information on an unclassified system.
Classified, secure, computer systems use a variety of electronic (often generically called TEMPESTed) measures coupled with physical security (special locks, shielded conduits for cabling, armed guards) that differentiate them from an unclassified system. Some of the protections are themselves classified, and unavailable in the private sector. Such standards of protection are highly unlikely to be fulfilled outside a specially designed government facility.
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 unmarked classified 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. Adversaries would very much like to know America’s bargaining strategy. The value of such information is why, for example, the NSA electronically monitored heads of state in Japan and Germany. The Freedom of Information Act recognizes the sensitivity of internal deliberation, and includes a specific exemption for such messages, blocking their release, even years after a decision occurred. If emails discussing policy or decisions were traded on an open network, that would be a serious concern.
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.
None of these laws, rules, regulations or standards fall under the rubric of obscure legalities; they are drilled into persons holding a security clearance via formal training (mandatory yearly for State Department employees), and are common knowledge for the men and women who handle America’s most sensitive information. For those who use government computer systems, electronic tools enforce compliance and security personnel are quick to zero in on violations.
A mantra inside government is that protecting America’s secrets is everyone’s job. That was the standard against which I was measured throughout my career and the standard that should apply to everyone entrusted with classified information.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Hillary Clinton Emails Said to Contain Classified Data
Here’s the story behind the drive by the Inspector General of the State Department and the Intelligence Community Inspector General for the Justice Department open a full investigation into Hillary Clinton’s use of a private email account while she held the position of secretary of state.
Government investigators discovered classified information on the private email account that Hillary used while secretary of state, stating “unequivocally” that those secrets never should have been stored outside of secure systems.The inspectors general of the State Department and the nation’s intelligence agencies said the information they found was classified when it was sent and remains so now. Information is considered classified if its disclosure would likely harm national security, and such information can be sent or stored only on computer networks with special safeguards. The inspectors have not revealed which of Clinton’s emails contained classified data, though the State Department has redacted portions of email it has released, and the FBI demanded data in some emails pertaining to the security situation in Libya be withheld.
Clinton has said for months that she kept no classified information on the private server that she set up. Her campaign said Friday that any government secrets found on the server had been classified after the fact.
There are multiple holes in Clinton’s latest set of excuses.
To begin, she has stated there was nothing classified on her server. It appears now there was. The source is not a partisan attack dog, but the State Department’s own inspector general and the intelligence community. She violated national security, which require cleared individuals, such as Hillary, to protect sensitive information. Exposing classified data is a crime; that is what Chelsea Manning and Edward Snowden are accused of doing. It does not matter if the info can be proven to have reached the media or an adversary, the crime is the exposure itself, not the results.A person in Hillary’s position, and certainly with her claimed experience in government, should know what is and is not classified, sensitive or otherwise needs to be protected. In my own 24 years with the State Department, I saw that almost everything that reached the secretary’s office needed to be classified, either because of the contents itself, or because it was part of the tiny fraction of information that bubbled up that high. Of all the issues in the world, an adversary knowing what the secretary was personally focused on, or how the data was being presented to her, was valuable in its own right.
Some/much of the information Hillary was dealing with originated within her inner circle, particularly email sent between her and her closest advisors that helped shape her decisions. It is the originating person that is charged inside State with assigning a classification. If Hillary’s staff did not assign a classification, well, then one was not technically included with the data. But that’s a fudge; it is the data itself that matters, with or without a label, and as part of the responsibility for holding a clearance a person is expected to make judgements to protect information. Hillary knew how sensitive the information was at times. It is a veneer of deniability.
There have also been multiple public cases where the government has taken action against individuals because they “should have known unclassified” data “should have been classified” and thus protected. Google up those of TSA’s Robert MacLean, NSA’s Thomas Drake and, sadly, my own. All of us were punished, fired or threatened with jail over the alleged release of unclassified data that the government deemed ex post facto should have been considered classified. This is not speculation, it is precedent.
Criminal? Maybe. Irresponsible? Likely. Not very presidential? Certainly.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Did Spam Filtering Service Have Full Access to Clinton Emails?
A researcher says the commercial spam filtering service Hillary Clinton used for her personal email server had full, unfettered access to her messages. A person at the company — or someone who could hack into the company — could read and save any of her messages.
Marc Perkel tells us that “Hillary Clinton used a spam filtering service MxLogic to filter her spam and viruses. What this means is employees at MxLogic, now owned by McAfee (which has been bought out by Intel), had full access to all her State Department email in unencrypted form.”
Perkel explains email from the Internet is routed by DNS records called MX records which are used to look up where to deliver email. When someone uses an external spam filtering service they point their MX records to that service and all email for that domain goes to the spam filtering service first. They clean it and forward the good email on to the recipient.”
So, without such a filtering service, your email goes from You straight to Me. When I sign up for such a service, your email goes from You to the MxLogic Company to Me.
Setting things up is pretty easy, once you sign up for the filtering service. McAfee says “activation starts with a simple mail exchanger (MX) record redirection.” That redirects emails from you to them, and then them to me.
Exposing Clinton’s Technical Details
Did Hillary use the services of MxLogic/McAfee? Perkel says yes, that the MX records for clintonemail.com are:
clintonemail.com. 7200 IN MX 10 clintonemail.com.inbound10.mxlogicmx.net.
clintonemail.com. 7200 IN MX 10 clintonemail.com.inbound10.mxlogic.net.We know that Clinton’s server was fully unencrypted for her first three months of overseas travel. It is unclear exactly when after that encryption was employed, but it does not matter. McAfee had to be able to read the email messages to filter them. So a message might have been encrypted into McAfee, and it might have left McAfee encrypted, but inside the company it was visible. A company employee could have accessed it. A foreign intelligence service could have planted someone inside the company. Someone could have hacked into McAfee from outside.
Now one of the ways all this could be quickly checked and parsed through is to examine the header information on Clinton’s emails, the technical stuff you usually don’t see when you open a message (but it is in there.) Oh, wait. You can only see that information if you have the actual electronic email. If someone prints the message out, as Clinton did in delivering 55,000 pages to the State Department, the technical information is lost forever. In that sense, Clinton did not deliver her actual records to State as required by law, just partial copies.
Now if someone — anyone — who received an actual Clinton email and has it electronically would share that with some responsible technical people, much would be revealed. Someone with access should also look to see if Guccifer leaked full headers with Sidney Blumenthal’s email from the Clinton server.
Is Clinton Secure?
So how secure is Clinton’s email server? Well, first of all, the log-in page is still online. Go here and let me know if you get in, please. Keep in mind this may be considered felony hacking and you could go to jail for a long time, so don’t do it.
But in addition to that, let’s see what security company Qualys’ online server security checker does with Clinton’s rig. Here are the results. Oops! She got only a “B,” with lots of technical stuff marked as “weak.”
One recalls Clinton in her press conference stating that her server was in a location guarded by the Secret Service. However, researcher Perkel claims to have evidence that the server is at a commercial facility, and not in Clinton’s home or another known location guarded by the Secret Service.
To be fair, all of the information above pertains to the current state of Clinton’s email server. We do not know much about the state of the server during her four years as Secretary of State. It does seem funny to think, however, that there was any reason to downgrade security at any point. That does not make sense, especially since until recently all of the State Department emails were still on the server.
Important Note
Trying to figure out these details is at the edge of my own limited technical knowledge, so I invite readers to clarify, debunk or support all this.
It also seems that large media companies who can pose questions to Clinton have smart IT personnel. It remains a source of great frustration that these significant issues are being raised exclusively in non-mainstream forums. THE INTERCEPT, WIRED, NEW YORK TIMES — where are you?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
State Department Emails Reveal How Unqualified Clinton Donor Was Named to Intelligence Board
Emails recently released by the State Department give more information on how a securities trader and big-money Clinton donor was appointed by her office to the International Security Advisory Board (ISAB), a group that advises the Secretary of State on nuclear weapons and other security issues.
According to the State Department’s own website, members are “national security experts with scientific, military, diplomatic, and political backgrounds.” The current members show a lot of generals, ambassadors and academics.So it seemed odd to ABC News that Clinton felt that Rajiv K. Fernando, above, qualified for the group, since his background is in high-frequency stock trading and Internet “ventures.” He has donated heavily both to the Clinton Foundation, Hillary Clinton’s two presidential campaigns, and the Obama campaigns.
The newly released emails show he was added to the panel by then Clinton chief of staff Cheryl Mills. ““Raj was not on the list sent to [the Secretary of State]; he was added at their insistence” reads one 2011 email from Wade Boese, Chief of Staff for the Office of the Under Secretary of State for Arms Control and International Security, to a press aide.Fernando’s appointment even confused some staffers, the emails reveal. One press aide wrote internally, “it appears there is much more to this story that we’re unaware of,” and “it’s natural to ask how he got onto the board when compared to the rest of the esteemed list of members.”
That press aide wrote in a separate email: “We must protect the Secretary’s and Under Secretary’s name, as well as the integrity of the Board. I think it’s important to get down to the bottom of this before there’s any response.”
— Fernando declined to comment at the time, and promptly resigned from ISAB.
— The Clinton campaign declined to comment. Why did she decline to comment on a person she hand-selected to advise her? If it’s all just a witch hunt, say so, and explain why.
— The State Department put out a statement saying the ISAB is meant to reflect “a balance of backgrounds and points of view.” Including apparently unqualified points of view. That’s diversity, Clinton-style!
BONUS: Raj Fernando is a superdelegate for Clinton!
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clinton Team Never Really Reviewed Emails Before Deletion
Oh, this just gets worse.
The Process as Stated
Here is how Clinton described the “process” by which her own staff determined which of the 60,000 emails on her personal server were work-related, and thus turned over to the State Department for even further review, and which were not work-related and deleted.
I am very confident of the process that we conducted and the e-mails that were produced… I have absolute confidence that everything that could be in any way connected to work is now in the possession of the State Department… My direction [was] to conduct the thorough investigation to err on the side of providing anything that could be possibly viewed as work related.
The image created was one of completeness, and complexity, of interns and lawyers, perhaps Clinton herself for the tough calls, working their way painstakingly through four years worth — 60,000 messages — one-by-one, always erring on the side of caution to ensure a complete record before things were (perhaps) forever deleted.
But like seemingly everything else connected with the Clinton speech and the email server, it was all a fudge. What she said was not what really happened.
The Process in Reality
According to David Von Drehle of Time, the process used was actually as follows:
She commissioned a review of the 62,320 messages in her account only after the Department — spurred by the congressional investigation — asked her to do so.
And this review did not involve opening and reading each email; instead, Clinton’s lawyers created a list of names and keywords related to her work and searched for those. Slightly more than half the total cache, 31,830 emails, did not contain any of the search terms, according to Clinton’s staff, so they were deemed to be “private, personal records.”
And then deleted.
More Questions
So instead of answering any questions, Clinton’s actions only create more. Would someone in the media please acquire some brass and ask Clinton:
— Give us the list of keywords and names.
— Question why XYZ was not on the list, as appropriate.
— If someone’s full name was “William Jefferson Clinton,” was a search also run on “Bill,” “William J. Clinton” and the like? Did they run searches for “WH” and “White House,” “ISIS, IS, ISL, Islamic State, Daesh”?
— Ask if the keyword search process was set up to catch “Obama” as well as “Obbama” like Google, or only exact matches, like Microsoft Word does. Upper and lower case? Names as part of email addresses?
Other issues with even a decent keyword search done fairly are that people don’t always write emails in complete, referential sentences. Sometimes they write things like “I hope the press never hears about that thing from yesterday” or “As I told you on the phone, time to act” that can be critical when matched against events and other information.
Jeez, everyone who has ever watched a gangster movie knows they say things like “We’re gonna have to pay a visit to our friend in Yonkers” before they put out a hit.
Get It?
You get it. Running a keyword search is not a process that could create “absolute confidence” on a potential world-leader scale. Claiming it does is prevarication of the worst kind, deliberate manipulation of expectations and words. There is no basis on which to trust, not even a decent feint at creating trust. Just smoke and mirrors and misdirection.
Here it is in a clearer way: No one looked at more than 30,000 emails before they were deleted. No one.
There is a crushing certainty to Clinton’s supporters, and I hear that from many of them in explicit terms, that eliminates doubt. It troubles me greatly. Because if you people keep dismissing these signs of what is headed our way with silly tropes like “everybody does it” and “it’s a partisan attack,” we are all going to pay for it.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Clinton Precedencies and Mar-a-Lago Search
It always ends up back with the Clintons, doesn’t it? The laws Trump may be charged under at Mar-a-Lago appear to have been violated by both of the Clintons, yet the two were never searched, never mind charged and prosecuted. Any action against Trump must account for that to preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest.
The more obvious case involves former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries which potentially held evidence. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState, and maintaining control over what records became part of the historical archive post-tenure.
Clinton seems to have violated all three statues Trump was searched under:
— 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information” says “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation…” This law is part of the infamous Espionage Act of 1917. Parts of the Espionage Act also includes a gross negligence standard, meaning a prosecutor does not have to prove specific intent in all cases. That Clinton’s server was compromised strongly speaks to the question of injury to the United States.
— 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record…” is a no-brainer for Clinton, given that she destroyed thousands of emails, physical hard drives, and handheld devices.
— 18 U.S.C. §§ 1519, The “anti-shredding provision” which imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.” Clinton destroyed much of the data during an investigation into her communications, satisfying intent. Her overall intent was to block FOIA requests, and might speak to intent to impede or obstruct some investigation that required the full diplomatic record be made available.
Absent a trial no one can say conclusively Clinton was guilty of what Trump is likely to be charged with, but the basic elements are there. That is not the point anymore anyway. The point is that if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it risks being seen as partial and political. Any further action against Trump and certainly any prosecution of him must address why Hillary was not searched and prosecuted herself. Fair is fair, after all.
And then there’s Bill Clinton. Bill made a series of some 79 audio tapes from 1993-2001 with a historian inside the Oval Office, sometimes recording his thoughts and decision making, other times directly recording his phone calls. He kept the raw tapes himself after a book was published in 2009, actually storing them in a dresser drawer inside the White House residence. Judicial Watch sued Bill for the tapes claiming they were presidential records and had to be made available to the public through the National Archives, aka NARA, and that the Archives needed to seize the tapes. Clinton argued they were personal records outside the control of NARA.
In directly contravening what is happening with Trump, the court ruled in 2012 “NARA does not have the authority to designate materials as ‘presidential records,’ and NARA lacks any right, duty, or means to seize control of them.”
Judicial Watch argued the Clinton tapes should have been included among the presidential records transferred to the Archivist at the end of the Clinton presidency, but Bill retained them in his personal possession when he left office and refused to produce them for use by Judicial Watch nor hand them over to NARA, considering them his own property just like the underwear and socks he stored the tapes among in his dresser. Judicial Watch lost the case and never appealed, and the tapes presumably remain with the Clintons.
As with the Hillary case, any prosecution of Trump for dispossessing presidential records must address the precedent set in the Bill Clinton case, i.e., the simple assertion by Bill that the tapes were his personal property. More significantly, going forward on the Trump case the DOJ must address the court’s decision in the Bill Clinton case that “NARA does not have the authority to designate materials as presidential records, and NARA lacks any right, duty, or means to seize control of them.” In other words, for what Trump had in his possession to be government records, someone would have had to designate them as such. The court in Judicial Watch v. NARA said NARA could not make such a designation, and the FBI certainly is not legally the one to do it. Could it be the president himself designates when a record is official and when it is personal?
Sort of. It appears a president’s discretion on what are personal vs. official records is far-reaching and solely his, as is his ability to declassify or destroy records at will. Per Judicial Watch, “under the statutory scheme established by the Presidential Records Act (PRA) the decision to segregate personal materials from presidential records is made by the president, during the president’s term and in his sole discretion… Since the president is completely entrusted with the management and even the disposal of presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.”
Now to be fair there is a fair amount of case law trying to define more clearly what is a presidential record and what is a personal record. There are also mechanisms to try and resolve differences of opinion between a president and NARA. But none of those mechanisms are criminal, and none seem to involve physically seizing documents under a search warrant. It is clear the PRA does not bestow on the president the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review. But NARA on the other hand cannot do so either. The battleground under the PRA is the courts, not the back rooms at FBI headquarters.
If Trump were to designate a record as personal, not presidential, and NARA disagreed, it appears the standard mechanism (as shown in the Bill Clinton case) would be to go to court to redesignate the record. Step One (as in the Bill Clinton case) is not for the FBI to seize the record acting as some Solomon-like neutral party between the president and NARA. The bottom line is Bill Clinton was able to hold on to his audiotapes as personal records, and the tapes were never seized by the FBI under threat of the Espionage Act.
Any attempts to move the Trump case forward as a criminal one will first need to explain how it differs from the Bill Clinton case. If DOJ can’t do that — as well as differentiate Trump from Hillary Clinton and her server — then they have no basis to claim they are enforcing the law without fear or favor. It will be just plain old political hackery, using the criminal justice system to defeat Trump when the electoral system will not. That’s Third World stuff, skippy.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Was It All Just Pilot Error? IG Report Says No Political Bias Found in FBI Investigation of Clinton Email
What everyone will agree on: Comey and the FBI interfered with the election. What everyone will not agree on: Everything else.
It will be easy to miss the most important point amid the partisan bleating over what the Department of Justice Office of Inspector General report on the FBI’s Clinton email investigation really means. While each side will find the evidence they want to find that the FBI, with James Comey as Director, helped/hurt Hillary Clinton’s and/or maybe Donald Trump’s campaign, the real takeaway is this: the FBI influenced the election of a president.
In January 2017 the Inspector General (IG) for the Department of Justice, Michael Horowitz (who previously worked on the 2012 study of the Obama-era gun operation Fast and Furious), opened his probe into the FBI’s Clinton email investigation, including statements by Comey made about that investigation at critical moments in the presidential campaign. Horowitz’s focus was always to be on how the FBI did its work, not to re-litigate the case against Clinton. Nor did the IG plan to look into anything Russiagate.
In a damning passage, the 568 page report found it “extraordinary and insubordinate for Comey to conceal his intentions from his superiors… for the admitted purpose of preventing them from telling him not to make the statement, and to instruct his subordinates in the FBI to do the same… by departing so clearly and dramatically from FBI and department norms, the decisions negatively impacted the perception of the FBI and the department as fair administrators of justice.” Comey’s drafting of a press release announcing no prosecution for Clinton, written before the full investigation was even completed, is given a light touch though in the report, along the lines of roughly preparing for the conclusion based on early indications. We also learned Comey ironically used private email for government business.
Attorney General Loretta Lynch herself is criticized for not being more sensitive to public perceptions when she agreed to meet privately with Bill Clinton aboard an airplane as the FBI investigation into Hillary unfolded. “Lynch’s failure to recognize the appearance problem… and to take action to cut the visit short was an error in judgment.” Her statements later about her decision not to recuse further “created public confusion and didn’t adequately address the situation.”
The report also criticizes in depth FBI agents Peter Strzok and Lisa Page, who exchanged texts disparaging Trump, and then moved from the Clinton email to the Russiagate investigations. Those texts “brought discredit” to the FBI and sowed public doubt about the investigation, including one exchange that read “Lisa Page: “[Trump’s] not ever going to become president, right? Rights?! Peter Strzok: “No. No he’s not. We’ll stop it.” Another Strzok document stated “we know foreign actors obtained access” to some Clinton emails, including at least one secret message.”
Page and Strzok also discussed cutting back the number of investigators present for Clinton’s in-person interview in light of the fact she might soon be president, their new boss. Someone identified only as Agent One went on to refer to Clinton as “the President” and in a message told a friend “I’m with her.” The FBI also allowed Clinton’s lawyers to attend the interview, even though they were also considered witnesses to a potential set of crimes committed by Clinton.
Page and Strzok were among five FBI officials the report found expressed hostility toward Trump before his election as president, and who have been referred to the FBI’s internal disciple system for possible action. The report otherwise makes only wishy-washy recommendations, things like “adopting a policy addressing the appropriateness of Department employees discussing the conduct of uncharged individuals in public statements.”
Attorney General Jeff Sessions indicated he will review the report for possible prosecutions. The IG previously referred former FBI Deputy Director Andrew McCabe for possible prosecution after an earlier report found McCabe leaked to the press and later “lacked candor” when speaking to Comey and federal investigators. Sessions fired McCabe him in March 2018.
But at the end of it all, the details really don’t matter, because the report found no political bias, no purposeful efforts or strategy to sway the election. In aviation disaster terms, it was all pilot error. An accident of sorts, as opposed to the pilot boarding drunk, but the plane crashed and killed 300 people anyway.
The report is already being welcomed by Democrats — who feel Comey had shattered Clinton’s chances of winning the election by reopening the email probe just days before the election — and by Republicans, who feel Comey let Clinton off easy. Many are now celebrating it was only gross incompetence, unethical behavior, serial bad judgment, and insubordination that led the FBI to help determine the election. No Constitutional crisis. A lot of details in those 568 pages to yet fully parse, but at first glance there is not much worthy of prosecution (though IG Horowitz will testify in front of Congress on Monday and may reveal more information.) Each side will point to the IG’s conclusion of “no bias” to shut down calls for this or that in a tsunami of blaming each other. In that sense, the IG just poured a can of jet fuel onto the fires of the 2016 election and walked away to watch it burn.
One concrete outcome, however, is to weaken a line of prosecution Special Counsel Robert Mueller may be pursuing. To say Comey acted incompetently during the election, albeit in ways that appear to have helped Trump, does not add to the argument he is otherwise competent, on Russia or any other topic. An FBI director willing to play in politics with an investigation is simply that, an FBI director who has abandoned the core principles of his job and can’t be trusted. Defend him because it was all good natured bad judgment doesn’t add anything healthy to the question of competency.
Mueller has just seen a key witness degraded — any defense lawyer will characterize his testimony as tainted now — and a possible example of obstruction weakened. As justification for firing Comey, the White House initially pointed to an earlier Justice Department memo criticizing Comey for many of the same actions now highlighted by the IG (adding later concerns about the handling of Russiagate.) The report thus underscores one of the stated reasons for Comey’s dismissal. Firing someone for incompetence isn’t obstructing justice; it’s the boss’ job.
It will be too easy, however, to miss the most important conclusion of the report: there is no longer a way to claim America’s internal intelligence agency, the FBI, did not play a role in the 2016 election. There is only to argue which side they favored and whether they meddled via clumsiness, as a coordinated action, or as a chaotic cluster of competing pro- and anti- Clinton/Trump factions inside the Bureau. And that’s the tally before anyone brings up the FBI’s use of a human informant inside the Trump campaign, the FBI’s use of both FISA warrants and pseudo-legal warrantless surveillance against key members of the Trump team, the FBI’s use of opposition research from the Steele Dossier, and so on.
The only good news is the Deep State seems less competent than we originally feared. But even if one fully accepts the IG report’s conclusion all this — and there’s a lot — was not intentional, at a minimum it makes clear to those watching ahead of 2020 what tools are available and the impact they can have. While we continue to look for the bad guy abroad, we have already met the enemy and he is us.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Those Damn Emails
In they end, the emails mattered. How much they mattered — how many votes went to Trump, how many would be-Clinton supporters stayed home, how many voted third party — we’ll never know.
Clinton supporters were surprised the emails mattered at all, because they had been fed a regular and often fully-factually wrong diet by the majority of the media. There was some good reporting on what the emails meant, and how classification works, but it was almost all on right-of-center websites Clinton people did not read, and blithely dismissed as biased when the sites were brought to their attention. And yeah, sometimes things got a bit too partisan in tone, but the facts were also there.
After holding a security clearance for some 23 years, I tried, for some 18 months, to write as intelligently as I could about the damn emails. I tried to explain, in detail, what the whole thing meant, and that it was a significant problem for Clinton. Not bragging, just telling. If you’d like to read back through what I’ve had to say and judge yourself, here it is. There’s a lot there, so if you just want a taste, here.
But I do want to make this as clear as possible, so…
— All (not insignificant) questions of legality aside, the emails were about judgement, epically poor judgement. Clinton skirting/violating all rational thought and rules to set up a fully independent email server unprecedented in scope and scale, bypass federal records laws and the requirements of the Freedom of Information Act, and establish no oversight on the flow of classified information, is not the level of judgment a president must display. Yeah, I know, Trump, but this is about why Hillary Clinton emails mattered and whether anyone likes it or not Trump is the president-elect in part because of the emails.
— The most basic tenant of the classified world is that you simply do not expose classified material on an unclassified system. That’s why classified systems exist. This is at the “duh” level. Opinions differ on what should be classified, over-classification is a big problem, yada yada, but those issues are not resolved by circumventing the classified world. To more than a few voters, that seemed obvious. It also again speaks to judgement. There were many experts who explained this, but it seems most Clinton supporters listed to John Oliver instead.
— Nobody (the Republicans, the FBI, etc.) created any of the core mess except Hillary Clinton. She then seemingly took every chance to dig the hole deeper, shifting her explanations, allowing information to drip drip drip out over the length of the campaign, and all the rest until everything collapsed around the pathetic human wreckage of Anthony Weiner.
— As an added problem, “the emails” in many voters’ minds became shorthand for a range of issues related to trust, ethics, and propriety, including the Clinton Foundation, pay-for-play, and the Goldman-Sachs speeches.
— Clinton’s opponents inside and outside the government took advantage of the emails — kinda what opponents do — but none of that would have been possible if Clinton had not created all of this herself. Take this campaign, put up Sanders or Biden instead of Clinton, subtract out all of the negatives associated with the emails, and run a little thought experiment on how many votes that may have been worth.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clinton the Victim, FBI-Email Edition
Hillary Clinton has shape-shifted through a list of personas this election, trying on different roles to see if any might stick with the public.
She’s settled on the one to ride into November 8: victim.
A Woman of Many Faces
Her first role was as “woman,” hoping to sweep up roughly 50% of the electorate in a single empowering noun. As with Obama, she hoped to mobilize a huge swath of voters who wanted to participate in electing the first
Blackfemale president. Didn’t go mainstream. Grandmother, same. Competent life-long government person, hmmm, cut both ways, many people wanted a change. Third Obama Term, meh, took some steam out of Bernie’s campaign but not much more. Killer of bin Laden, sorta worked in one debate, dragged on into an SNL skit cliche through the others.When the first news of the emails came out in March 2015. Hillary didn’t really have a persona for that, mumbling about no classified, then about not wanting multiple devices, prevaricating here, avoiding there. She tried blaming Colin Powell, then the State Department’s creaky IT infrastructure.
Until she nailed it: She was the victim of a conspiracy.
The VictimThe sources of that conspiracy shifted, back and forth, to and from “the Republicans,” lots of Putin, some “hackers,” Wikileaks, men/misogynists often looped together, oddly at times the all-to-hagiographic media, Trump the Assaulter, and now, only three months after he was her hero, James Comey, FBI Director.
And thus Hillary Clinton, the One who would empower all, chooses her last persona, the Victim.
How the “victim” thing plays out depends on how closely voters want to listen (and many Clinton apologists are more than willing not only to forgive her apparently any sin, but also to actively put their hands over their ears and sing LA LALALALALALA LA until November 8.)
The problem is that if Hillary is a victim, she is also her own villian.
But… But… Why Now?
Why is it only ten days ahead of the election that the FBI is talking about tens of thousands of more Hillary emails?
— Because Hillary had a private server and kept it a secret for six years and
— Because that server was gobbed up with classified material most of us could never judge things enough to trust Hillary and
— Because Huma Abedin did not turn over to the FBI months ago a crusty computer full of evidence connected to the previous investigation and
— Because a sexting pervert sexting with a minor had access to all those emails
Deep Inside HillaryThe broader explanation lies deep inside the psyche of Clinton.
She has had 18 months of chances to explain, or at least try to explain, the entire email saga. Instead, she avoided most questions, gave patently false answers (“I didn’t want to carry multiple devices”) and hid behind her State Department’s near-criminal slow walking of Freedom of Information Act requests to out the emails. At one point she “apologized” but insisted at the same time she did nothing wrong, at another said she took full responsibility but took none in practice, and then fell into legalese parsing of words and laws, aided by a surrogate media.
And that’s even before some of the server emails, and many of the Podesta emails, revealed connections among the Clintons-Donors-Favors-the Clinton Foundation.
So all that’s left is to cry wolf one more time and see if it sticks. Like Putin, Comey is out to get her. It’s all so unfair!
In this election cycle, ten days is a lifetime. Who knows what new information will come out, what new ways Trump will find to turn a political development in his favor into hash, and most of all, how voters will process all this. Expect the Clinton campaign to go all-in demanding its supporters vote early (before anything else emerges) and cranking up whatever crap they have left on Trump to ear-bleeding volumes.
Those Damn EmailsBut the thing that will remain are those emails.
If Clinton does win, she’ll go to her swearing in ceremony knowing any Republican left in Washington will be preparing hearings and calls for impeachment, leaving her a herculean task of accomplishing anything in her term that she can use to run for her second term.
But that’s OK; she’ll blame the opposition for disabling her, a victim once again.
BONUS: Boy does the State Department hope Clinton wins. Republicans in power will tear that building apart, taking heads and exposing emails and other evidence. State’s budget will be cut to the point where they won’t be able to afford Internet access so people can comb Craigslist looking for new jobs.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clinton, Trump, Lauer, All Lose Battle of the MSNBC CINC Forum
In the end, it was actually America who lost last night at the MSNBC Commander-in-Chief forum, because one of these people will be our president in a few months, and the other two will no doubt live forever on our TVs.
ClintonHillary Clinton dug her own hole that much deeper, failing in front of a skeptical audience of mostly military veterans to push aside any of their skepticism, or ours. Given, once again, the chance to swing for the fences and put at least some of her bad decisions and scandals behind her, Clinton went for the safe grounder every time.
Clinton came off as defensive and lawyerly.
She said her vote for the Iraq War in 2003 was a mistake but would not say in front of the assembled vets the war itself was a mistake. She added a new excuse to her litany of email excuses — none of the information typed into her unclassified system had classification headings on it (like TOP SECRET), as if someone who was knowingly typing in such information would, sure, also document the felony by adding the header. She said hundreds of people at State violated classification rules with email, so presumably she was OK doing it, too. She stressed her long years of experience handling classified without mentioning that she said “I don’t know” 40 times to the FBI in answer to questions about how to handle classified information. She noted that State’s unclassified email system was hacked, while there was “no proof” hers was also broken into, a very lame defense when her communications should have been nearly 100% on a classified system to begin with.
Clinton finished her self-mutilation by telling a veteran who questioned her handling of sensitive information: “I did exactly what I should have done and I take it very seriously, always have, always will.”
Trump
Trump then came out and did Trump, all Trump, hugely Trump, I can tell you, Trump, Trump, Trumpy Trumpster. He has a plan for ISIS, but won’t tell us what it is. He doesn’t like generals who lose. He thinks Putin is a helluva leader and Obama isn’t. He insulting female combat troops in remarks about sexual assault, and corrected a veteran with an incorrect figure about soldier suicides. Trump just kept Trumping and no one was very surprised.
Lauer
The major fail of the night was moderator Matt Lauer, to the point where #LaueringTheBar is trending on Twitter. Lauer tossed questions to the candidates and then took a nap as they answered, failing to follow-up or challenge most points. He was unable to control the length of answers given, and he allowed Clinton to violate her pledge to talk about herself and not use her answers to smear Trump. At one point Clinton actually stood in front of the seated Lauer, basically sending him off to bed while she handled the forum for awhile.
Lauer also spent far too much time fishing for faux-controversy and ignoring the stated point of the forum, to explore how each candidate would act as commander-in-chief. And so we heard about the emails, we heard a lot of Trump’s man-boy love for Putin, and we had Lauer try and bait Trump into revealing something, anything, he’d heard in his classified briefings. When a veteran in the audience asked Clinton to describe her plan to defeat Islamic State, Lauer interjected “to keep it brief” before the candidate even began her reply.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Some Important Things That Really Do Matter About Hillary Clinton
Even if everyone does it, that does not make it right. That excuse did not work for you in 6th grade when you were caught smoking in the girl’s room and it should not be accepted from a presidential candidate or her supporters in the media.Many politicians do crappy things. That is not an excuse for you to also do them. See above.
“Well, at least I wasn’t indicted” is not a very high standard for the presidency.
“There is no proof of quid pro quo.” What do you mean by proof? A notarized statement “This guy gave us money, so let’s sell him weapons?” Reality doesn’t work that way so spare us the strawman argument. Phone calls are made. Conversations happen. Minions learn quickly what their boss wants. People at the Clintons’ level rarely leave paper trails behind and when they do, they delete them before the FBI arrives to pick up the server.
If someone offers you millions of dollars for essentially no work (i.e., a speech) they are going to want something in return. If you want more money, you will need to give something to them.
“All they wanted was a meeting with the secretary to offer their views.” Sure, maybe. But in Washington the currency is closeness to power. For a wealthy person, buying just material things loses its charm after a while. They buy access, they buy the appearance of power, they buy chances to take those photos of themselves with prominent world leaders all rich people have on their walls. You look like a sap, arm candy in return for cash. Quid pro quo can mean a meeting, a visa issued, an arms deal made.
How do you feel when you find out your doctor prescribed you medication from a pharmaceutical company that paid him large speaking fees? Appearances do matter and it is likely that such money does not impact judgement.
Follow the money. Always follow the money.
If the secretary of state’s name is Clinton and the foundation receiving the money is named Clinton, they are part of the same thing.If you put classified material on an unclassified server, that is wrong. It exposes that material to America’s adversaries. Presidents should simply not do that. No one else in government has ever knowingly been allowed to do that.
There is such a thing inside the U.S. government called retroactive classification. You may not like it, and you may have convinced sops in the media to pretend with you it does not exist, but it is real. I’ll Google it for you, here, and here. Retroactive classification was tested at the Supreme Court level; see DEPARTMENT OF HOMELAND SECURITY v. MACLEAN. Someone please call CNN and pass them those links.
The Clinton Foundation as a charity has done some good deeds. But do not conflate those with its role as a money laundering tool. The two are very separate functions of the same organization. And you can have the first without the second. In fact, that’s how good charities work.
Avoiding even the appearance of unethical behavior is important. Persons throughout the government watch what their senior leaders do as signals as to what they can get away with. Leadership matters, and that means staying clean and making sure everyone sees that you are clean. You lead by example, one way or the other.
When global leaders come to wonder if you can be bought off for some “donations,” they will either lose respect for you, or want to buy you off themselves. They will not simply ignore it.
Putin could really not give a sh*t which assclown is elected president. He’ll go on acting in his country’s best interests no matter who is in the White House, as he has done through multiple administrations already. Get over yourself.
Hiding from the press and not holding press conferences seems like the behavior of a petulant six-year-old.
It is not leadership nor is it presidential to be caught as a liar and a prevaricator on a regular basis. People do not trust you; not voters, not the Congresspeople you will need to work with, not other world leaders you will have to negotiate with.
The lesser of two evils is still evil. Why do you want to knowingly vote for evil?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clinton, Wasserman Schultz and the Wheezing Corpse of the Democratic Process Revealed
Wikileaks over the last few days dumped tens of thousands of emails hacked from the Democratic National Committee (DNC) server.The disclosures of dirty tricks directed against Bernie Sanders contained in those emails are startling, and only add to the whirlpool of corruption and sleaze surrounding Hillary Clinton and the wheezing corpse of the democratic process.
There’s a lot to unpack here:— The same people on the Clinton team who made enormous efforts to claim her private email server, which operated unencrypted over the Internet for three months including during trips to China and Russia and which contained Top Secret national security data, was not hacked by the Russians now are certain that the DNC server was hacked by the Russians.
— Many in Camp Clinton and the media labeled Bernie Sanders’ supporters are paranoid when they made claims during the primaries that the DNC was working against them. The hacked emails confirm the DNC was working against them, including suggestions that the DNC find ways to suggest Sanders was an atheist to discredit him in religious areas.
— Persons who claimed many in the media, including CNN, were biased in favor of the Clinton campaign during the primaries were dismissed. The hacked emails confirm the DNC was working closely with the media to seek negative coverage of Sanders and positive coverage of Clinton.
— Politico now admits it was a “mistake” sending the DNC an article draft in advance. The writer showed the draft to the DNC even before his own editors saw it.
— Facebook admits to blocking Wikileaks links to the DNC email hack from its newsfeeds (but blames spam filters.)
— The DNC appears to have expended significantly more efforts toward defeating Bernie Sanders than they did against any of the Republican candidates.
And some more:
— Instead of focusing on the contents of the hacked emails and the dirty tricks they exposed, many mainstream media outlets headlined instead the Clinton campaign talking points that the Russians hacked the emails and released them in an effort to derail her candidacy in favor of Donald Trump. Many of the same stories suggest Trump is some sort of pro-Putin stooge.
— On 60 Minutes, Clinton refused to say intervention by the DNC to favor one candidate was “improper.” Her non-answer was edited out of the interview broadcast.
— After DNC chair Debbie Wasserman Schultz announced her resignation following this week’s Democratic convention, the Clinton campaign announced Wasserman Schultz would be hired by them as “honorary chair of Hillary’s campaign’s 50-state program to elect Democrats in every part of the country, and as a surrogate for her campaign nationally.”
— Debbie Wasserman Schultz will be replaced as DNC chair by (only now former) CNN commentator Donna Brazile. Brazile argued the pro-Clinton side of debates on CNN throughout the primary season.
— In the hacked emails, Brazile said “I will cuss out the Sanders camp!” over complaints by Sanders of inadequate representation by the DNC. In March while still employed by CNN, Brazile called Sanders’ decision to run as a Democract for the additional media exposure “extremely disgraceful.”
And very sadly:
— Bernie Sanders, his campaign sabotaged by the DNC with what were once “paranoid” accusations now proved, still endorses Hillary Clinton and will still speak at the Democratic National Convention.
It pains me to say as his once-supporter that the man has no courage. Even Ted Cruz stood up for himself in front of the Republicans in Cleveland. It is a sad day when we learn Ted Cruz has more balls than Bernie Sanders.
Those who are calling all this a coup of sorts, they’re wrong. It’s a surrender. But in the words of Hillary Clinton, what difference does it make?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Was Hillary Clinton’s Email Hacked? The Case
If you were Vladimir Putin, or President Xi of China, what would you do if you had the entire archive of Hillary Clinton’s emails, classified and unclassified, “deleted” and not, in your hands? What value to you would that be in your next round of negotiations with the president of the United States?
Unencrypted Email
Hillary Clinton traveled to 19 foreign locations during her first three months in office, inlcuding China, South Korea, Egypt, Israel, Palestine, and a meeting in Switzerland with her Russian counterpart. During that period of time her email system was unencrypted. She transmitted data over wireless networks in those countries, networks almost certainly already monitored 24/7 by intelligence and security officials. To say her email was not collected is to say the Russian, Chinese, Israeli and other intelligence services are complete amateurs.
They are not complete amateurs.
A System Wide Open to MonitoringWhile FBI director James Comey said his investigators had no “direct evidence” that Hillary Clinton’s email account had been “successfully hacked,” both private experts and federal investigators, according to the New York Times, “immediately understood his meaning: It very likely had been breached, but the intruders were far too skilled to leave evidence of their work.”
Comey described a set of email practices that left Clinton’s systems wide open to monitoring. She had no full-time cyber security professional monitoring her system. She took her BlackBerry everywhere she went, “sending and receiving work-related emails in the territory of sophisticated adversaries.” Her use of “a personal email domain was both known by a large number of people and readily apparent… Hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact.”
The FBI director was generous in his assessment. See, no hacking was really necessary.
But No Hacking was Really NeededOnline security company Venafi TrustNet has the world’s largest database of digital certificates and associated metadata, allowing it to go back in time and identify how digital certificates were used in the past, a kind of forensics capability for IT security. Here’s what they found on the clintonemail.com server, and it is not good.
Using non-intrusive Internet scanning tests routinely performed throughout by IT security teams (meaning foreign intelligence agencies have them too), Venafi learned the Clinton server was enabled for logging in via web browser, smartphone, Blackberry, and tablet. That automatically makes it vulnerable to interception, as the information Clinton was sending and receiving abroad was traveling via other nations’ web infrastructure and open-air cellular networks.
Clinton’s email log-in page was also on the web, meaning anyone who stumbled on it could try and log in, or employ the standard array of password hacking and brute force attacks against it, much like they did with your Gmail account that was hacked.
The Clinton email setup also was initially running a standalone Microsoft Windows Server, which is very vulnerable to attack, with at least 800 known trojans/spyware in existence that can steal keys and certificates. If the credentials on the server were compromised in those first three months, then the next years of encryption might have meant nothing.
How could someone have gained access to the credentials? Clinton’s most recent digital security certificate was issued by GoDaddy. Her domain’s landing page was at one time hosted by Confluence Networks, a web firm in the British Virgin Islands.
No Smoking Gun?If anyone had picked up Clinton’s emails from the airwaves or in transit over the Internet (as we know, via Snowden, the NSA does), while they were encrypted, or had acquired the encrypted versions and used the resources of a state security apparatus to decrypt them, there would of course be no forensic evidence to find. Persons working at NSA-like levels actually breaking into systems expend significant energies hiding their intrusions, and such high level “hacks” have been known to stay hidden for years.
Sure, if the standard is a “smoking gun,” there is none. But such proof is rarely available in the world of global espionage, and decisions and conclusions are made accordingly on a daily basis.
Clinton’s email was extremely vulnerable, and her decision to run it off a private server put at significant risk the security of the United States. This is not a partisan attack or a conspiracy; it is technology.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Hillary Clinton, Her Email and a Body Blow to the Freedom of Information Act
Federal Bureau of Investigation director James Comey announced that his agency is recommending no charges against Hillary Clinton for her use of an unclassified personal email server while secretary of state. Comey offered that “no reasonable prosecutor” would bring a case against Clinton.
The implications of these statements, and what happened before and after the announcement, represent what most likely represent the virtual end of the 2016 election cycle. Come November votes will be counted but the single, major, unresolved issue standing in the shadows behind Clinton is now resolved in her favor.
The director of the FBI labeled the leading contender for the presidency and her staff as “extremely careless” in their use of email, and this is generally seen as positive news by her supporters, the new standard now being not under indictment. Comey also stated that some 110 emails were classified ( at least 24 as Top Secret; one was found to be marked classified on Clinton’s server) when they were transmitted and received, an action that appears to be now inconsequential under national security laws. A New York Times tally found more than 2,000 classified emails.There was no electronic connection between the Federal government’s classified systems and Clinton’s unclassified server. This indicates that on 110 separate occasions Clinton and/or one of her correspondents retyped information from a classified format. This means any classified markings (i.e., “Top Secret”) were removed in the process. “This classified information never should have been transmitted via an unclassified personal system,” Steve Linick, the State Department inspector general, said in a statement signed by him and I. Charles McCullough III, the inspector general for the intelligence community.
The Inspectors General for the Intelligence Community have stated that some of the classified documents were marked at the highest levels to protect sources and methods used to spy on North Korea via satellite. Emails contained the names of CIA officials. There is no evidence, nor did Comey suggest, that these actions were inadvertent, accidental, occasional, incidental, or other than intentional. It was Clinton’s decision to create the email system that allowed these events to take place. Clinton herself, given her decades of experience in government, clearly could recognize highly classified material, marked or unmarked. Standard Form 312, signed by Clinton and every other security clearance holder in the government, specifically notes that the laws apply to both marked and unmarked classified material. The legality of retroactive classification has been tested at the level of the Supreme Court.)
While Director Comey maintains there was no intent, or gross negligence, by Clinton to violate the law, it is difficult to reconcile those actions and that statement.
Hillary Clinton’s earliest statements, that no classified information traversed her server, later changed to “no marked” classified information (the statement itself irrelevant) did not appear to be addressed by the FBI in the context of perjury or obstruction. In addition, Josh Rogin of the Washington Post reports Clinton’s lawyers deleted all e-mails they did not produce to the State Department and then cleaned devices in such a way to preclude forensic recovery.The standards applied in the Clinton case are at extreme variance from how classified information violations elsewhere in the government are applied. Space precludes listing examples in detail, but the cases of CIA officer John Kiriakou (served three years in Federal prison for exposing a single, unmarked unclassified business card with the name of a CIA employee) and TSA air marshall Robert Maclean (fired for exposing a text retroactively classified) stand out. Even David Petraeus, who transmitted classified information via his Gmail account to his mistress, received some minor legal punishment and was forced to resign.
There is simply no precedent to the Clinton decision. One wonders if the millions of U.S. government civil employees, military personnel, and contractors will be held to what appear to be lesser standards than previously held. That certainly wasn’t the case of Marine Major Jason Brezler, who shared classified information with colleagues in Afghanistan in to warn them about a Taliban conspirator, and was forced out of the service in response.
Director Comey spoke broadly. He did not, for example, directly address the 18 USC 1924, which states “Whoever… becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.” This is the statute under which David Petraeus was prosecuted. It is difficult to reconcile the text of that law with the fact that classified documents resided on a server (for part of the time) at a private company, connected to the internet. A private SPAM filtering service apparently also had access to the classified emails.
An important issue not addressed by the FBI is the effect Clinton’s actions had on the Freedom of Information Act.During her entire tenure as Secretary of State and for some time afterwards, State maintained it had no email records to produce in response to requests. Those statements — while technically true in that State did not control and could not search Clinton’s personal server — blocked journalists, activists, citizens, and for a time, Congress, from documents they were lawfully entitled to. The State Department says it will now require 75 years to release all of the documents currently under request.
The State Department’s own Inspector General found these actions to be in contravention of the Federal Records Act, and presents what might be seen as chilling preview of press relations and the public’s right to know for the next four years.
In addition, Clinton deleted about half of the emails from her personal server without oversight. It is unclear whether or not any of those would have been responsive to Freedom of Information Act requests, or contained additional classified information. The FBI did say emails it found in others’ Inboxes, ones not turned over by Clinton, the State Department, were work related. Clinton had previously claimed she turned over all work-related emails.
In the Clinton case, we are also left with unanswered questions about the timeline of events. Bill Clinton met with Attorney General Loretta Lynch on June 28, according to both, to make small talk about grandchildren. On July 1 Lynch announced she would accept Director Comey’s recommendation on the email case. On July 2 the FBI interviewed Clinton for several hours. On June 3, the New York times stated Clinton is considering keeping Lynch in her administration if she wins in November. On July 5 President Barack Obama and Hillary Clinton flew together on Air Force One to their first scheduled campaign. Only hours later Comey made his announcement, meaning that whatever Clinton said on Sunday was evaluated and processed in less than two days following a year of active investigation. The appearance of impropriety alone remains damaging to the image of our nation.
Few believed, right or wrong, that Hillary Clinton would face criminal charges over her handling of classified material. Yet the many unanswered questions and issues not addressed by the Federal Bureau of Investigation remain. It seems unlikely that even if the majority of voters in November see the issue put to rest, that Republicans in Congress will feel the same come January.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clinton Discussed Top Secret CIA Drone Info, Approved Drone Strikes, Via Her Blackberry
A new report in the Wall Street Journal reveals emails in which then-Secretary of State Clinton approved CIA drone assassinations in Pakistan from her unsecured Blackberry.
Top Secret/SAP MessagesThe timing and location of these strikes are considered Top Secret/SAP [special access program], in that revealing such data could allow the targeted humans to escape, and embarrass U.S. ally Pakistan, whom many believe is tacitly allowing the United States to conduct such military operations inside its sovereign territory.
At specific issue are 22 emails that were on Clinton’s private server. These messages were not publicly released, withheld entirely. However, the broad contents were leaked to the Journal by anonymous congressional and law-enforcement officials briefed on the FBI’s investigation.
Clinton’s RoleClinton’s role in approving the drone kills stems from concerns by lower State officials that the attacks’ timing and location might interfere with broader diplomatic engagement. So, from 2011 on, the State Department had a secret arrangement with the CIA, giving it a degree of say over whether or not a drone killing would take place.
Then-Ambassador to Pakistan Cameron Munter reportedly opposed certain covert operations that occurred during especially sensitive points in the U.S.-Pakistani relationship. As he later described the process “I have a yellow card. I can say ‘no.’ That ‘no’ goes back to the CIA director. Then he has to go to Hillary. If Hillary says ‘no,’ he can still do it, but he has to explain the next day in writing why.”
Clinton allegedly objected only to “one or two” attacks out of thousands.
Clinton Says None of That is TrueAs regards these emails, Clinton has said “the best we can determine” is that the emails in question consisted solely of a news article about drone strikes in Pakistan. “How a New York Times public article that goes around the world could be in any way viewed as classified, or the fact that it would be sent to other people off of the New York Times site, I think, is one of the difficulties that people have in understanding what this is about.”
However, the Wall Street Journal states the e-mails were not merely forwarded news articles, but consisted of informal discussions between Clinton’s senior aides about whether to oppose upcoming CIA drone strikes in Pakistan. When a potential strike was imminent, or if it occurred during a weekend or holiday when State Department staffers were away from government computers, the covert operation was then debated openly over unsecured wireless networks that anyone with a modicum of knowledge could intercept.
As a matter of speculation, the Russian and Chinese embassies in Washington DC likely employ people with a modicum of knowledge about wireless communications.
A Matter of Personal ConvenienceOne official said “If a strike was imminent, it was futile to use the high side [classified communications], which no one would see for seven hours.”
There is no built-in delay in classified communications. The official is likely referring to an unwillingness by Clinton’s staff to return to the office to conduct classified business on the proper system. Since there has been no suggestion or evidence that CIA officials also used unclassified systems to discuss drone strikes, one can assume they were willing to be at the office when U.S. national security issues mattered.
During Clinton’s tenure between January 2009 and February 2013, the CIA conducted 294 drone strikes that killed 2,192 people, at least 226 of whom were civilians.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Newly Released Clinton Email Was Marked Classified When It Hit Clinton’s Unclassified Server
When her use of an unclassified email server first broke in March 2015, Hillary Clinton’s earliest statements were that no classified information was sent or received.
She quickly changed her standard reply to say nothing sent or received was marked classified at the time. As recently as Wednesday of last week, she told reporters, “nothing that I sent or received was marked classified. And nothing has been demonstrated to contradict that. So it is the fact. It was the fact when I first said it. It is the fact that I’m saying it now.”(The statement is itself an outright lie. Some information — the names of CIA undercover personnel, imminent drone strikes, details on U.S. NSA sources and methods, for example — is inherently classified and does not need to be marked to restate that. In addition, many suspected classified documents that were marked as such were simply retyped minus the marker when they were sent to Hillary. Leaving the marker off does not “declassify” information, and is in fact a national security crime.)
Marked ClassifiedHowever, even Clinton’s statement that nothing was marked classified has now been proven a lie.
One of her just-released emails carries a clear classification marking known as a portion marking. That marking was on the email when it was sent directly to Clinton’s account.” Nothing done retroactively, though retroactive classification is a standard tool used throughout the government and validly changes a document.
Portion marking is used when a document contains paragraphs of various levels of classification. Paragraph one may be marked as (U) for unclassified, paragraph two as (S) for secret and so forth.
The Clinton email in question has a paragraph marked (C), which means it is classified at the confidential level. The text refers to a phone call with Malawi’s first female president.
Everything after that (C) was fully redacted before it was publicly released by the State Department. One can only guess that someone sending Clinton the information via an unsecured device forgot to delete the (C), and then in the clearance process at State the (C) portion marker was overlooked. Accidents do happen. People make mistakes.
So, you want a smoking gun? You got it.
For Hillary Supporters:It does not matter whether the classification was a high or low level one. You simply cannot include any classified information on an unclassified system. To do so is a violation of law. It does not matter if, in your opinion, whether or not he material should have been classified, or was over-classified. Clinton could have declassified it following standard procedures but did not do so (see, because you can retroactively classify something, you can also retroactively declassify something.)
But what is most significant here is that Clinton lied. Stone cold lied. There was marked classified on her unclassified server. And that does matter.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Hillary Clinton Emailed Names of U.S. Intelligence Officials, Unclassified
You can look at the source documents yourself. This is not opinion, conjecture, or rumor. Hillary Clinton transmitted the names of American intelligence officials via her unclassified email.
From a series of Clinton emails, numerous names were redacted in the State Department releases with the classification code “B3 CIA PERS/ORG,” a highly specialized classification that means the information, if released, would violate the Central Intelligence Act of 1949 by exposing the names of CIA officials.
How FOIA WorksThe Freedom of information Act (FOIA) requires the government to release all, or all parts of a document, that do not fall under a specific set of allowed exemptions. If information cannot be excluded, it must be released. If some part of a document can be redacted to allow the rest of the document to be released, then that is what must be done. Each redaction must be justified by citing a specific reason for exclusion.
But don’t believe me. Instead, look at page two of this State Department document which lists the exemptions.
Note specifically the different types of “(b)(3)” redactions, including “CIA PERS/ORG.” As common sense would dictate, the government will not release the names of CIA employees via the FOIA process. It would — literally — be against the law. What law? Depending on the nature of the individual’s job at CIA, National Security Act of 1947, the CIA Act of 1949, various laws that govern undercover/clandestine CIA officers and, potentially, the Espionage Act of 1917.
Names of CIA, NSA Officials Mentioned, Now RedactedYet Hillary’s emails contain at least three separate, specific instances where she mentioned in an unclassified email transmitted across the open Internet and wirelessly to her Blackberry the names of CIA personnel. Here they are. Look for the term “(b)(3) CIA PERS/ORG” Click on the links and see for yourself:
There are also numerous instances of exposure of the names and/or email addresses of NSA employees (“B3 NSA”); see page 23 inside this longer PDF document.
Why It Matters— These redactions point directly to violations of specific laws. It is not a “mistake” or minor rule breaking.
— These redactions strongly suggest that the Espionage Act’s standard of mishandling national defense information through “gross negligence” may have been met by Clinton.
— There is no ambiguity in this information, no possible claims to faux-retroactive classification, not knowing, information not being labeled, etc. Clinton and her staff know that one cannot mention CIA names in open communications. It is one of the most basic tenets taught and exercised inside the government. One protects one’s colleagues.
— Exposing these names can directly endanger the lives of the officials. It can endanger the lives of the foreigners they interacted with after a foreign government learns one of their citizens was talking with the CIA. It can blow covers and ruin sensitive clandestine operations. It can reveal to anyone listening in on this unclassified communication sources and methods. Here is a specific example of how Clinton likely compromised security.
— These redactions show complete contempt on Clinton’s part for the security process.
BONUS: There is clear precedent for others going to jail for exposing CIA names. Read the story of John Kiriakou.A Personal Aside: I just remain incredulous about these revelations seeming to mean nothing to the world. They’re treated in the media as almost gossip.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Memo to the President Regarding the Hillary Clinton Email Server
The following memo was written by a group of U.S. intelligence, diplomatic, and military veterans, calling on President Obama to expedite the FBI review of former Secretary of State Clinton’s alleged email security violations so the public can assess this issue in a timely fashion.Clinton’s judgement — never mind the significant question of legality — is an important criterion which Americans must consider in choosing their next president.
Yeah, it is long, but sometimes important things are complex, and need to be explained clearly. That is especially true in the case of the Clinton Emails, where the media has failed in its job of explaining how classification works, and the significance of exposing classified material.
I am a member of the group that drafted this memo, and proudly signed it before it was sent to the White House.
MEMORANDUM FOR: The President
FROM: Veteran Intelligence Professionals for Sanity
SUBJECT: Those “Damn Emails” – “Really a Concern”
IntroductionLast Wednesday Robert Gates, CIA Director under President Bush-41 and Defense Secretary under President Bush-43, publicly commented that Secretary Hillary Clinton’s “whole email thing … is really a concern in terms of her judgment,” adding, “I don’t know what originally prompted her to think that was a good idea.”
What originally prompted her does not matter. As your Secretary of State and your subordinate, she willfully violated laws designed to protect classified information from unauthorized disclosure. It may be somewhat difficult for those not as immersed in national security matters as we have been to appreciate the seriousness of the offense, including the harm done in compromising some of the most sensitive U.S. programs and activities. This is why we write.
Pundits and others are playing down the harm. A charitable interpretation is that they have no way to gauge what it means to expose so much to so many. We do know, and our overriding concern is to protect the national security of our country from further harm. It would be a huge help toward this end, if you would order Attorney General Loretta Lynch to instruct the FBI to stop slow-walking the email investigation and release its findings promptly.
If you choose, instead, to give precedence to politics over national security, the American people will be deprived of timely appreciation of the gravity of the harm done; national security officials who do follow the rules will be scandalized; FBI investigators will conclude that that their job is more political than professional; and the noxious impression will grow that powerful people cannot be held accountable when they break the law. Worse: if the results of the FBI investigation remain under lock and key, dangerous pressures are likely to be exerted on the most senior U.S. officials by those who have the key – as we explain below.
We the undersigned Veteran Intelligence Professionals for Sanity (VIPS) have spent 400 years working with classified information – up to and including TOP SECRET, Codeword, and Special Access Programs (SAP). Given that experience, we believe that much of the commentary on the former Secretary of State Hillary Clinton email controversy has been misplaced, focusing on extraneous issues having little or nothing to do with the overriding imperative to protect classified information.
As intelligence, military, and foreign service professionals, we are highly aware not only of that compelling need, but also of the accompanying necessity to hold accountable those whose actions compromise – whether for reasons of convenience or espionage – sensitive operations, programs and persons. In addition, we know that successful mutual cooperation with foreign intelligence services depends largely on what they see as our ability to keep secrets secret.
Background
Last August, Secretary Clinton handed over her private email server to the FBI, five months after she acknowledged she had used it for work-related emails as Secretary of State. She admitted to having deleted about 31,000 emails she described as personal. Media reports last fall, however, indicated that the FBI was able to recover the personal emails, and was reviewing them, as well as the 30,000 others she had described as work-related.
In January, the Department of State announced that, of the 30,000 work-related emails, at least 1,340 contained classified material. The Department retroactively classified 22 of those TOP SECRET and prevented their release. Among the 22 were some that, according to media reports, included information on highly sensitive Special Access Programs (SAP).
The White House has said it will do nothing to impede the FBI investigation and possible filing of charges against Clinton, if the facts should warrant that kind of action. Inasmuch as the outcome of the investigation is bound to have major political consequences, such White House assurances stretch credulity.
By all indications, the FBI is slow-walking the investigation and mainstream media are soft-pedaling the issue. As things now stand, most Americans remain unaware of the import of this industrial-scale compromise of very sensitive national security information in Secretary Clinton’s emails.
Our concern mounted in January when the Inspector General of the intelligence community wrote to the chairs of the congressional intelligence committees that he had received from one of the intelligence agencies two “sworn declarations” asserting that Secretary Clinton’s emails contained not only CONFIDENTIAL and SECRET information, but also information at the TOP SECRET/SAP level.
In 2009, you signed an Executive Order regarding SAP (Special Access Programs), so we assume you were briefed on their extremely high sensitivity and the consequent need to sharply limit the number of people allowed to be “read-in” on them. The mishandling of SAP information can neutralize intelligence programs costing billions of dollars, wreck liaison relationships assiduously cultivated for decades, and get a lot of people killed.
‘It Wasn’t That Bad’
All those directly or peripherally involved in the investigation of the Clinton email issue know very well that it could have a direct impact on who is likely to become the next President of the United States, and they will be making decisions with that reality in mind. They know that it is with you that “the buck stops,” and they are sensitive to signs of your preferences. Those were not difficult to discern in your commencement address at Howard University on May 7, in which you strongly advocated the same basic policy approaches as those espoused by one Democratic presidential candidate – Hillary Clinton.
Your White House has also made excuses for deliberate security violations by Secretary Clinton that would have gotten senior officials like us fired and probably indicted. We look with suspicion at what we see as contrasting and totally inappropriate attempts by the administration and media to play down the importance of Secretary Clinton’s deliberate disregard of basic security instructions and procedures.
It appears that the option chosen by the White House is using the declared need for “thoroughness” to soft-pedal and delay completion of the investigation for several more months, while the corporate media sleeps on. Four months have already gone by since the smoking-gun-type revelations in the intelligence community Inspector General’s letter to Congress, and it has been well over a year since Secretary Clinton first acknowledged using an insecure email server for official business.
Another claim emanating from your White House is that Clinton was careless in managing her emails and has admitted as much, but that she has not damaged American national security. She has called it a “mistake,” but security officials of the National Security Agency explicitly forewarned her against violating basic laws and regulations designed to prevent the compromise of classified information.
NSA, FBI Have Enough Evidence
Surely, enough time has passed, and enough material has been reviewed, to permit a preliminary damage assessment. The NSA has the necessary information and should, by now, have shared that information with the FBI. Secretary Clinton’s server in her house in Chappaqua, New York, was not a secured device. Her email address incorporated her initials, “hdr” (apparently for her maiden name, Hillary Diane Rodham). It also included the “clinton” server identity, so it was easy for a hacker to spot.
Anyone with the proper equipment, knowledge and motivation might have been able to obtain access. That is what hackers are able to do, with considerable success, against government servers that are far better protected than the private email server located in her New York State home.
In fact, there have been reports that Secretary Clinton’s emails were, indeed, hacked successfully by foreigners. The Romanian hacker who goes by the name Guccifer claimed earlier this month that he had repeatedly hacked her email server. He described the server as “like an open orchid on the Internet” and that “it was easy … easy for me, for everybody.” Guccifer has been extradited from Romania and is now in jail in Alexandria, Virginia, where the FBI is said to be questioning him on the emails. There have also been credible claims that Russian intelligence and other foreign services were able to hack the Secretary’s server.
Another argument being surfaced, in a transparent attempt to defend Secretary Clinton, has to do with intent. It is said that she did not intend to have classified information on her computer in New York and had no intention of handling secret material in a way that would be accessible to foreign intelligence or others lacking the proper security clearances and the need-to-know.
But while intent might be relevant in terms of punishment, it does not change the fact that as a member of the Senate Armed Services Committee, then Senator Clinton had clearances for classified information for years before becoming Secretary of State. She knew the rules and yet as Secretary she handled classified information carelessly after a deliberate decision to circumvent normal procedures for its safeguarding, thus making it vulnerable to foreign intelligence, as well as to criminal hackers.
Anyone who has ever handled classified material knows that there are a number of things that you do not do. You do not take it home with you, you do not copy it and share it with anyone who does not have a clearance and a need-to-know, you do not strip off the classification marks and treat it as unclassified, and you do not transfer it to another email account that is not protected by a government server.
If you have a secured government computer operating off of a secure server that means that what is on the computer stays on the computer. This is not a matter of debate or subject to interpretation. It is how one safeguards classified information, even if one believes that the material should not be classified, which is another argument that has been made in Clinton’s defense. Whether or not the classification is unnecessary is not your decision to make.
Apart from the guidelines for proper handling of classified information, outlined in Executive Order 13526 and 18 U.S.C Sec. 793(f) of the federal code, there is some evidence of a cover-up regarding what was compromised. This itself would be a violation of the 2009 Federal Records Act and the Freedom of Information Act.
Numerous messages both in New York and in Washington have reportedly been erased or simply cannot be found. In addition, the law cited above explicitly makes it a felony to cut and paste classified information removing its classification designation. Retaining such information on a private email system is also a felony. In one of Secretary Clinton’s emails, she instructed her staff simply to remove a classification and send the information to her on her server.
So the question is not whether Secretary Clinton broke the law. She did. If the laws are to be equally applied, she should face the same kind of consequences as others who have been found, often on the basis of much less convincing evidence, guilty of similar behavior.
Some More Equal Than OthersSecretary Clinton’ case invites comparison with what happened to former CIA case officer Jeffrey Sterling, now serving a three-and-a-half-year prison term for allegedly leaking information to New York Times journalist James Risen. Sterling first came to the media’s attention when in 2003 he blew the whistle on a botched CIA operation called Operation Merlin, telling the Senate Intelligence Committee staff that the operation had ended up revealing nuclear secrets to Iran. When in 2006 James Risen published a book that discussed, inter alia, this amateurish cowboy operation, the Department of Justice focused on Sterling as the suspected source.
In court, the federal prosecutors relied almost entirely on Risen’s phone and email logs, which reportedly demonstrated that the two men had been in contact up until 2005. But the prosecutors did not provide the content of those communications even though the FBI was listening in on some of them. Risen has claimed that he had multiple sources on Operation Merlin, and Sterling has always denied being involved.
Jeffrey Sterling was not permitted to testify in the trial on his own behalf because he would have had to discuss Operation Merlin, which was and is still classified. He could not mention any details about it even if they were already publicly known through the Risen book. No evidence was ever produced in court demonstrating that any classified information ever passed between the two men, but Sterling, an African American, was nevertheless convicted by an all-white jury in Virginia based on “suspicion” and the presumption that “it had to be him.”
The contrast between the copious evidence – some of it self-admitted – of Secretary Clinton’s demonstrable infractions, on the one hand, and the very sketchy, circumstantial evidence used to convict and imprison Jeffrey Sterling, on the other, lend weight to the suspicion that there is one law for the rich and powerful in the United States and another for the rest of us.
Failing to take steps against a politically powerful presidential candidate and letting her off unscathed for crimes of her own making, while an institutionally unprotected Jeffrey Sterling sits in prison would be a travesty of justice not dissimilar to the gentle wrist-slap given Gen. David Petraeus for giving his mistress extremely sensitive information and then lying to the FBI about it.
Your order to then-Attorney General Eric Holder to let Gen. David Petraeus off easy created a noxious – and demoralizing – precedent in the national security community indicating that, whatever the pains taken at lower levels to prevent compromise of duly classified information, top officials are almost never held accountable for disregarding well-established rules. These are some of the reasons we are so concerned that this is precisely the direction in which you seem to be leaning on the Clinton email issue.
In our view, the sole legitimate reason for disclosing classified information springs from the only “oath” we all took – “to support and defend the Constitution of the United States against all enemies foreign and domestic.” When, for example, Edward Snowden saw the U.S. government grossly violating our Fourth Amendment right to be “secure” against warrantless “searches and seizures,” he gave more weight to that oath (ethicists call it a supervening value) than to the promise he had made not to disclose information that could harm U.S. national security.
Possibly Still Worse AheadYou might give some thought, Mr. President, to a potentially messy side of this. What is already known about NSA’s collect-it-all electronic practices over the past several years strongly suggests that NSA, and perhaps the FBI, already know chapter and verse. It is virtually certain they know what was in Secretary Clinton’s emails – including the ones she thought she had deleted. It is likely that they have also been able to determine which foreign intelligence agencies and other hackers were able to access the emails.
One ignores this at one’s peril. Secretary Clinton’s security violations can have impact not only on whether she becomes your successor, but also on whether she would, in that case, be beholden to those who know what lies hidden from the rest of us – perhaps even from you.
Intelligence professionals (in contrast to the occasional political functionary) take the compromise of classified information with utmost seriousness. More important: this is for us a quintessentially nonpartisan issue. It has to do, first and foremost, with the national security of the United States.
We are all too familiar with what harm can come from blithe disregard of basic procedures designed to protect sensitive intelligence and other national security information. Yes, the lamentable unevenness in how such infractions are handled is also an important issue – but that is not our main focus in the present context.
The Truth Will OutNot all workers at the NSA or the FBI are likely to keep their heads in the sand, as they watch very senior officials and politicians with their own agendas disregard laws to safeguard the nation’s security. We know what it is like to do the difficult, disciplined work of protecting information from being compromised by strictly abiding by what often seem to be cumbersome rules and regulations. We’ve been there; done that.
If you encourage the Department of Justice and the FBI to continue slow-walking the investigation, there is a good chance the truth will come out anyway. As you are aware, the Justice Department, the FBI, and NSA have all yielded recent patriots who, in such circumstances, decided that whistleblowing – rather than silence – was the only way to honor the oath we all swore – to support and defend the Constitution.
To sum up our concern regarding how all this plays out, if you order the Justice Department and FBI to pursue the investigation with “all deliberate speed,” so to speak, and Secretary Clinton becomes president, the juicy email secrets in the hidden hands of the NSA and FBI are likely to give those already powerful institutions a capacity for blackmail that would make J. Edgar Hoover’s mouth water. In addition, information hacked by foreign intelligence services or Guccifer-like hackers can also provide useful grist for leverage or blackmail.
Taking Care the Laws Are Faithfully ExecutedWe strongly urge you to order Attorney General Loretta Lynch to instruct FBI Director James Comey to wind up a preliminary investigation and tell the country now what they have learned. By now they – and U.S. intelligence agencies – have had enough time to do an early assessment of what classified data, programs and people have been compromised. Realistically speaking, a lengthier, comprehensive post-mortem-type evaluation – however interesting it might be, might never see the light of day under a new president.
We believe the American people are entitled to prompt and full disclosure, and respectfully suggest that you ensure that enforcement of laws protecting our national security does not play stepchild to political considerations on this key issue.
On April 10, you assured Chris Wallace, “I guarantee that there is no political influence in any investigation conducted by the Justice Department, or the FBI – not just in this [Clinton email] case, but in any case. Full stop. Period.”
We urge you to abide by that promise, and let the chips fall where they may. Full stop. Period.
For the Steering Group, Veteran Intelligence Professionals for Sanity (VIPS)William Binney, Technical Director, NSA; co-founder, SIGINT Automation Research Center (ret.)
Thomas Drake, Senior Executive, NSA (former)
Philip Giraldi, CIA, Operations Officer (ret.)
Sen. Mike Gravel, Adjutant, top secret control officer, Communications Intelligence Service, special agent the Counter Intelligence Corps and United States Senator
Matthew Hoh, former Capt., USMC, Iraq & Foreign Service Officer, Afghanistan (associate VIPS)
Larry C. Johnson, CIA & State Department (ret.)
Michael S. Kearns, Captain, USAF Intelligence Agency (ret.), ex-Master SERE Instructor
John Kiriakou, Former CIA Counterterrorism Officer
Ray McGovern, former US Army infantry/intelligence officer & CIA analyst (ret.)
Elizabeth Murray, Deputy National Intelligence Officer for Middle East, CIA (ret.)
Todd Pierce, MAJ, US Army Judge Advocate (ret.)
Scott Ritter, former MAJ, USMC, former UN Weapon Inspector, Iraq
Diane Roark, DOE, DOD, NSC, & professional staff, House Intelligence Committee (ret.)
Robert David Steele, former CIA Operations Officer
Peter Van Buren, U.S. Department of State, Foreign Service Officer (ret.) (associate VIPS)
Kirk Wiebe, former Senior Analyst, SIGINT Automation Research Center, NSA, (ret.)
Ann Wright, U.S. Army Reserve Colonel (ret) and former U.S. Diplomat
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Does Over-Classification Matter With the Hillary Emails?
Rules are for fools, and in this case the fools in question are you, me and what’s left of the American democratic system. Obama, in an interview, basically made it clear nobody is going to indict Hillary Clinton for exposing classified material via her unclassified email server, even if it requires made-up rules to let her get away with it.
The president’s comments in an interview last Sunday that “there’s classified and then there’s classified” made clear he imagines national security law allows for ample, self-determined fudge room when exposing classified material.
Does Over-Classification Matter?In case you are still not sure, nope, that is not the way the law works, and everyone (including me, for 24 years) who has held a security clearance knows it.
Obama’s and Clinton’s defenders claim that much of what Hillary exposed was over-classified, and perhaps some should never have been classified at all. Maybe. After reading documents at the Top Secret level and above over more than two decades I can say, sure, sometimes it seemed odd that something was regarded as as secret as it was.
That said, one’s personal opinion is not relevant. The document is what it is and one is bound to handle it appropriately. The same rules apply to the lowest new hire to the highest officials. Just because the secretary of state, or the president, does it does not make it legal.
Originating AgencyClinton mishandled two broad categories of documents, those classified by her own State Department and those classified by other government agencies, such as the CIA. Had she believed that the documents were wrongly classified, she had recourses for both sets. She did not act on those available recourses.
With documents originally classified by her State Department, Hillary had the authority to declassify them herself while Secretary of State (both Obama and current SecState John Kerry still hold that authority and could declassify any of Hillary’s redacted emails right now with the stroke of a pen.) The thing is if Clinton did choose to declassify a document, she would have had to follow procedure, including seeking internal recommendations, make her action public and of course be willing to release the document newly-declassified. She did not do any of that.
For the other agency documents, Hillary did not have the authority to declassify them. Only the CIA, for example, can declassify a CIA document in this process. Hillary did however have the authority to request a review aimed at declassification by the originating agency. She did not do any of that.
No Blood, No Foul?In addition to his made-up assertion that “there’s classified and then there’s classified,” Obama disingenuously stated Hillary did not expose any information of value to America’s adversaries and so should suffer not sanction, the national security equivalent of no blood, no foul.
The Federal laws that control classified information, up to and including the Espionage Act, do not require proof that the disclosed material aided America’s adversaries, or that the information even reached America’s adversaries. Motivation to disclose the information is also not considered relevant, whether than motivation was sincere whistleblowing or inadvertent mishandling. Guilt is based on the disclosure alone. This is why Chelsea Manning was not allowed to defend herself in this way, and why Ed Snowden believes he cannot have a fair trial in the U.S.
Snowden had the last word on Obama’s statements.
“If only I had known,” tweeted Snowden. “Anyone have the number for the Attorney General?. Asking for a friend.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Justice Dept Grants Immunity to Staffer Who Set Up Clinton’s Email Server
You remember Bryan Pagliano, pictured above, the guy who ran Hillary’s IT during her 2008 presidential campaign. After Obama tossed Hillary the job of secretary of state, Hillary had Pagliano hired by the State Department. She also had him continue to administer her private server, supposedly paying him on the side for the help.
Taking the Fifth
In addition to everything else swirling in the cesspool of that email server, there are also questions about whether or not whether the State Department spent taxpayer money to manage Hillary’s email server. See, Pagliano was working for both State as a government employee and Hillary as a private employee at the same time. One wonders if he always kept the two tasks fully separate, and of course what a government employee was doing working privately for the Clintons at the same time.
When asked back in September to provide testimony to Congress, Pagliano refused, asserting his Fifth Amendment rights.
Now things have changed.
Getting Immunity
The Justice Department has granted immunity to the former State Department staffer, who worked on Hillary Clinton’s private email server, as part of a criminal investigation into the possible mishandling of classified information, according to a senior law enforcement official.
The official said the FBI had secured the cooperation of Bryan Pagliano, who worked on Clinton’s 2008 presidential campaign before setting up the server in her New York home in 2009.
What Pagliano Likely Knows
Bryan Pagliano can shed light on several issues:
— Pagliano’s dual role as government employee and Clinton employee opens a whole new arena for investigation against Clinton, similar to the one already ongoing with aide Huma Abedin, who at one point worked simultaneously for the State Department, the Clinton Foundation, Hillary herself and a private company closely tied to the Clintons.
— While at State, what was Pagliano’s day-to-day job? What did he really do, not just his job description, but is actual work accomplishments? Is there a paper trail showing he did any actual work at all, or was the State “job” just a make-work position to get him on the payroll as a gift in return for his service to Clinton?
— He listed on LinkedIn his political-appointee position as “Serve as strategic advisor and special projects manager to the Chief Technology Officer (CTO) / Deputy Chief Information Officer (DCIO) overseeing the operations of the Information Resource Management (IRM) bureau.” Employed at such a high level inside State’s IT structure assures that State’s most senior information officers knew about Clinton’s email setup, and apparently did not or were not able to stop it. Unless Brian never told his supervisor about his other job.
— What was going on inside the State Department vis-a-vis the email server. Who knew about it? When did they know? Was it ever vetted/approved, and if so, by whom? Were objections raised by security personnel and how were those objections dealt with? Who is on the complete list of people who had email addresses on the server? What discussions took place inside State regarding the presence of classified information on the server? Were objections ever raised from outside State, say from the White House or the intelligence community?
— Pagliano can also speak to what security measures if any were in place on Clinton’s server, and when were they instituted. He had visibility into server logs, showing any attacks or penetrations into the server.
— Pagliano, as a State Department employee, had access to the State Department computer systems. He currently works as a computer contractor for State, and still has access to State Department computer systems. Has he ever been asked by Clinton to use his positions to gain information she would ordinarily not have access to, or to which she did not want her name attached?
— Pagliano may have knowledge of where any backups of the server are, shedding light on what emails were deleted by Clinton before her “full disclosure” of what was in fact a highly curated batch of documents.
There is a lot to learn from Bryan Pagliano. His testimony could be like when the Feds turn a Mafia accountant, a low-level guy with access to the family jewels.
BONUS: The State Department’s Chief Information Officer, who should have stopped the Clinton email server? Well, well, she retired from State a few months before Hillary left, into a nice job at the IMF. It pays to be a winner!
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
More Questions for Clinton
As Trey Gowdy and his Committee prepares to interview Hillary on Thursday, here are the next of our continuing series of “Questions for Clinton.” (Some previous queries.)
1) When Clinton’s private server was first made public in March, she stated there was no classified information on it. When emails released appeared to contain classified information (according to the Inspector General for the Intelligence Community), Hillary argued that the material was not classified at the time it was created, and that different agencies had different rules for classification. She did change her standard response to be “I did not send or receive anything marked classified.”However, a recent email included a memo from then-Secretary of State Colin Powell that appears to turn all of that into a lie.
— The Powell document from 2002 is labeled SECRET/NOFORN (i.e., “NO FORreigNers” may see it.)
— The document was labeled as classified when it was created.
— The document was created by Hillary’s own agency, the State Department.
Can Clinton please explain how this document does not contradict her previous statements about no marked classified?
2) Clinton took office on January 21, 2009, but the first message she turned back over to the State Department was dated March 18, and the earliest-dated message she herself sent was on April 13, nearly three months into her time in office. Clinton stated the gap was because she continued using a previous account she’d used during her time as a senator for business at the beginning of her time as secretary. She claims she no longer has “access” to that account and thus those three months of email messages are simply gone.What account was she using? Why did she use that account instead of the private server or an official State account? Why are those account’s messages deemed inaccessible? Who controls that account and its server? Did anyone at State approve the use of that account? Did Clinton seek State Department approval to use that account?
3) Clinton has stated, as recently as the CNN Democratic Debate, that she is committed to transparency. If we take Hillary at her word that she used some other email account between taking office in January 2009 and March 2009 when the first State Department emails show up in the tranche turned over to the State Department, where are those three months of emails? They are Federal records, and Clinton was obligated by law to preserve them.Where is that account? Nothing on the Internet is truly “inaccessible.” The FBI should subpoena the administrator of that account, if for no other reason than to make those messages available for the Archives and FOIA.
4) On “Meet the Press” September 27, when asked about this discrepancy on when she began using the personal account, Clinton said “There was a transition period. You know, I wasn’t that focused on my email account, to be clear here.”What account did she use on Day One? When did she start using the personal server? It seems the easiest thing was to use the State Department account you were no doubt offered. It seems she did focus on email. Can she explain why she did not use the State Department account in this “transition?”
5) Also on “Meet the Press” September 27, Clinton explained her use of a personal email account as “I did it for convenience.” In March she stated she used the account for the convenience of not having to carry multiple devices, yet almost immediately after that photos and video of her with multiple devices surfaced.Exactly what convenience was the personal account serving? Given that the State Department provided a fully functional email system on her desktop from Day One, with both a classified and unclassified account, plus portable devices such as a Blackberry already configured to those accounts, please state in detail what the added convenience of a private account was?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Questions for Clinton
I’ll begin today a new series, called “Questions for Clinton,” in which I’ll compile a set of questions Congressional Committees, media and the FBI should ask the former Secretary of State when they have a few free moments before the election.The questions will be factual, and non-partisan under normal people’s definitions** of these terms.
**Normal people excludes anyone who has decided without further thought that there is nothing to see here, that asking questions itself is a partisan attack, and that “everybody does it” is a valid explanation for whatever happens. If you are not willing to examine or re-examine these issues, there is nothing for you to see here. Enjoy being ignorant, you’ve earned it, so click here.
Today’s QuestionsMadame Secretary, please read the September 1 exchange below, between State Department spokesperson Mark Toner and the media. Here are the questions:
1) Who at the State Department, highest level, authorized your private email server. You stated it was permitted under State Department rules. Who made that determination and when? Was the determination ever reevaluated during your four years in office? If it is in writing, please produce the document. If it was not in writing, please explain why not.
2) Was there concern/opposition/protest/raising of issues within the State Department over your use of a private email server? What is the highest level that voiced that concern, and the highest level that received the concerns? How were those questions responded to? Did anyone in the State IT or State Information Security structure know about your server? How and when were they informed, or did they discover it on there own?
3) A person you placed into a State Department job, Bryan Pagliano, also at the same time administered your private server. Were his bosses’ at State aware of this? What was their reaction? Did they raise any concerns? If they were not informed, why not? As you are aware, State employees are required to report and vett any outside employment. Did he? If not, why not?
4) In March you stated the private server was simply because you did not wish to carry multiple devices, though obviously you did. You then stated in September the reason there was a private server was because as you took office you were simply too busy with matters of foreign affairs to focus on how email was processed. Which is it? Why have you offered two different explanations separated by six months of additional disclosures?
5) Your IT administrator from your 2008 presidential campaign was Bryan Pagliano. You had him hired by the State Department after you became Secretary of State, as a GS-15 civil service employee in his job as a special advisor and deputy chief information officer at the State Department. He earned around $140,000 per year from 2010-2012. You also paid him personally, on the side, to continue managing your private server from 2009 to 2013. Pagliano still works at the State Department, albeit now as a private contractor.
Was the job “special advisor and deputy chief information officer” created for him, or did it exist prior to him filling it? Who were his predecessors and what was their pay rate? Exactly and specifically, what were his duties? What is his contractor job now at State? Do you feel it may create some sort of conflict of interest, given the issues around your use of private email, that Pagliano still has access to the State Department computer networks where information concerning your situation is being processed?
6) If you do not know the answers, why not? Who will answer these questions for us if you cannot?
The Press ExchangeQUESTION: But do you know who signed off on her having a private server?
MR TONER: Who signed off on her? I don’t, no.
QUESTION: I mean —
QUESTION: Did anybody?
MR TONER: Again, I’m not going to answer that question. I’m not going to litigate that question from the podium.
QUESTION: So you’re saying that nobody signed off on her having a private server?
MR TONER: No. I’m saying – look, everyone – there were – people understood that she had a private server. I think we’ve talked about that in the past.
QUESTION: What level was that knowledge? How high did that go up in this building?
MR TONER: I mean, you’ve seen from the emails. You have an understanding of people who were communicating with her, at what level they were communicating at, so —
QUESTION: Was there anybody in this building who was against the Secretary having her own private server?
MR TONER: I can’t answer that. I can’t.
QUESTION: And just —
MR TONER: I mean, I don’t have the history, but I also don’t have – I don’t have the authority to speak definitively to that.
QUESTION: But —
MR TONER: Again, these are questions that are appropriate, but appropriate for other processes and reviews.
QUESTION: But not the State Department? She was the Secretary of State and —
MR TONER: No, I understand what you’re asking. But frankly, it’s perfectly plausible – and I talked a little bit with Arshad about this yesterday – is for example, we know that the State IG is – at the Secretary’s request – is looking at the processes and how we can do better and improve our processes. And whether they’ll look at these broader questions, that’s a question for them.
[….]
QUESTION: So last opportunity here: You don’t know who signed off on Secretary Clinton having her own server?MR TONER: Again, I don’t personally, but I don’t think it’s our – necessarily our responsibility to say that. I think that that’s for other entities to look at.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
How Clinton’s Handling Foreign Government Info Went Very Wrong
There is a frightening misunderstanding, some intentional, some not, among the media on how classified information is created and handled.
That misunderstanding turns much of the Clinton email story into a partisan shouting match, when knowing the facts of the classification system actually clarifies what happened and what it means.
Let’s look at the State Department’s policies on handling foreign government information, and how Clinton’s actions were at specific variance with those policies.
The tranche of Hillary Clinton’s emails released Aug. 31 contains 150 messages containing classified information. That brings the total number to more than 200.
Let the spin begin.
“The Department does not know for sure if any information was classified at the time it was sent or received on the private email server Clinton used for work,” State Department spokesperson Mark Toner told reporters. “It’s not an exact science. When we’ve upgraded [a document’s classification], we’ve always said that that certainly does not speak to whether it was classified at the time it was sent.”
Toner’s remarks are at variance with how the classification system works.
(Full disclosure: Following the publication — during Clinton’s time as secretary of state — of my book critical of the State Department’s role in the Iraq War, the department unsuccessfully carried out termination proceedings against me. Instead, I retired voluntarily.)
There are specific rules establishing government-wide, uniform standards as to what should be classified. And though Clinton has said she sent no information via email that was classified at the time and received none marked that way, the “marked/unmarked” issue is codified in security law and regulation. What matters is the information itself, whether its potential release would harm the United States or assist its adversaries. Gold is gold, whether it is labeled or not.
In addition, if any of Clinton’s messages contained information that originated outside of the State Department, say something sourced from the CIA, then it is the originating agency alone which determines the classification of a document, not end users such as Clinton in 2010, or the State Department in 2015.
Lastly, since there is clearly information in some 200 Clinton messages that cannot be in an unclassified setting now, then it is obvious it should not have been in an unclassified setting then.
Of particular concern is that more than half of the now-classified Clinton emails consist of a special category: information shared in confidence by foreign government officials. The Department’s own regulations say this information must be safeguarded, and even require specialized markings in addition to the standard classification indicators such as “Confidential.”
It makes sense; if a foreign leader shares something, only to learn the information was available to a hostile intelligence agency on an insecure email server, she or he is unlikely to trust the United States with information in the future. In such instances, it is the source of the information (for example, direct from then-British Prime Minister Tony Blair) that is perhaps more sensitive than the information itself. Imagine the difference between “an anonymous official” calling the Afghan president untrustworthy, and Blair himself exposed as saying the same.
Asked whether Clinton followed the regulations on proper handling of foreign government information, the State Department spokesperson said, “I’m just not going to answer that question. It’s not our goal, it’s not our function.”
That is inaccurate. The State Department maintains a significant infrastructure in the Bureau of Diplomatic Security that does nothing else but monitor employees’ handling of foreign government and other classified or sensitive information. It is indeed a function of the agency.
The issue of foreign government information handling is of critical importance to the State Department, given its mandate to carry out the foreign relations of the United States; so much so that the Department argued it to help convict Chelsea Manning after she transferred a large number of State Department cables to Wikileaks. State claimed the action significantly affected foreign governments’ confidence in exchanging information with the United States.
Manning’s leak of government files, not all classified, had a chilling effect, impeding American diplomats’ ability to gather information, a senior State Department official testified. The unauthorized releases made foreign diplomats and business leaders “reticent to provide their full and frank opinions and share them with us,” Undersecretary of State for Management Patrick Kennedy testified in 2013. “It’s impossible to know what someone is not sharing with you – and this is, in itself, I believe, a risk to the national security.”
With some irony, at the exact time the Manning cables appeared on the Internet, Clinton was committing a similar act. Statute 18 USC 1924, “Unauthorized Removal and Retention of Classified Documents or Material,” sets the standard as moving classified information to an unauthorized location (a private email server) and does not require the information to actually make it into the wild (Wikileaks) for a violation to occur. It’s also the same statute, inter alia, under which David Petraeus was prosecuted.
The complexity of the classification issues regarding Clinton’s private email server are, in fact, why the decision to use one at all, in lieu of established official channels, remains an issue worthy of our attention, beyond the one of up-or-down criminality.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clinton Email Markings Changed to Block Documents’ Release
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 TheoryIn 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.
FOIA ExemptionsHowever, 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 ProcessThe 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, AgainNow 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.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clinton’s Evolving Email Defense Does Not Hold Water
Have you noticed that Clinton’s explanations/excuses/defenses about her private email server and the classified information it held never seem to last very long, and are typically replaced in a week or two with something new?
Back in March the message was unambiguous: there was no classified material on her server. Then, after two Inspectors General said there indeed was classified material, the line was it was classified retroactively (as if that matters; see below). That soon fell to a line that the classified information was unmarked as such (as if that matters; see below). The newest is that well, Clinton herself did not send any of the classified emails. So, once again wrapped in new shiny paper, there’s nothing to see here, folks, let’s move along to the issues that really matter. I’ll tackle that as well, below.No one has better summed up the official Clinton Child’s Treasury of Excuses better than Senator Dianne Feinstein, who somewhat randomly released a statement “in response to allegations” regarding Clinton’s emails.
Let’s break Feinstein’s statement down.
The Dog Ate My Homework
Feinstein: First, none of the emails alleged to contain classified information were written by Secretary Clinton.
Here’s your talking point, somnolent media. It’s someone else’s fault.
Of course, the Inspectors General were only allowed by the State Department to review 40 emails, four of which contained classified. So there are still some 30,000 left to look into to see if Clinton herself did respond to, forward or write any of them.
Next is that the classified emails, no matter who wrote them, ended up in an insecure system because Clinton chose to do things that way in contravention of all good practice and rationality, if not actual law and regulation.
She was the prime mover behind the lapses in security. And after all, the cops bust the owner of the crackhouse, not just the ‘heads inside. The “buck stops where” is the question. Clinton continues to claim total ignorance of the contents of her own email to this day. Is all that presidential?
Lastly, no matter who wrote the emails, once Clinton saw them they became her responsibility to act on and secure. In real life, failure to report and secure classified found in an unsecure situation is also a violation of national security law. With that access comes responsibility. Remember, if you see something, say something!
I Didn’t Know, Honest, SirFeinstein: Second, none of the emails alleged to contain classified information include any markings that indicate classified content.
There is no allegation. The Inspectors General of the State Department and the Intelligence community said the emails contain classified material.
What everyone who has ever held a security clearance knows, and what the media, from left to right, cannot grasp is this: the information itself is or is not classified. The markings are there to show you what level of secure handling is required.
I’ll try again for the slow learners at CNN.
You are handed a piece of paper marked TOP SECRET//SI//TK/NOFORN (explained here). On the paper are written the negotiating positions of the Chinese Foreign Minister, whom you will meet tomorrow. The paper says these were obtained via a spy satellite listening in on the Minister in his inner office via electronic emissions.
Now, cut off the part of the paper that says TOP SECRET//SI//TK/NOFORN. Does the sensitivity of the information change at that moment? Of course not.
If you have lived in a remote cabin all your life, you may not grasp the sensitivity of knowing your opponent’s positions a day ahead of time and the sensitivity that this information was derived by some of America’s most secret sources and methods. But if you have spent your entire life in government, you damn well know that that information is not unclassified, whether it shows up in your email unmarked or otherwise.
It really, really is that simple. Marked or unmarked, pro-active or retro-active, Clinton knew she was dealing with highly classified information on an unclassified system she herself set up and continued to use.
Everything ElseRetroactive classification means that something was classified when it was issued. The markings were applied later, but that does not relieve the holder of the information of the legal burden of protecting the information. Government employees have lost their jobs over this concept, and gone to jail. This has been confirmed as legal as high as the Supreme Court. See Department of Homeland Security v. Robert MacLean for the most recent case. Legally, citing retroactive classification is not a defense.
“Everybody does it.” No they don’t. No other government employee, never mind Cabinet-level official, has created her own private email server in the history of the United States. If Jeb Bush had a private server as governor of Florida, that is not a charm point for him, but he also did not handle America’s most sensitive information, or any classified information at all. John Kerry and Condi Rice said they do not send official emails outside of the State Department system. Madeleine Albright said she may have sent a few back in the dawn of the Internet 14 years ago via AOL or Yahoo, and no one has suggested she sent anything classified. Colin Powell as Secretary of State said he sent a handful of emails on his AOL account, and no one has claimed there was any classified involved.
Besides, “everybody does it” is an excuse that teenagers use when they’re caught smoking behind the school.
Now, as for that “let’s get back to the issues” meme that many Clinton supporters like to go to.
No one can anticipate what will happen during the four (or eight…) years of a presidency. So while experience matters significantly, judgement and trust matter perhaps even more. Those are the things that will see success or failure when the unexpected arises one night at 3 am.
Lastly, I think also the point needs to be made that if the only standard we apply to candidates’ wrongdoings is if it is not criminal and illegal, it does not matter, sets a pretty low bar. I’d like to vote for a president who, in addition to not being a convicted criminal, is also somewhat honest, with good judgement and who at least feigns putting the nation’s interests before his/her own.
If one cannot see that, at a minimum, Clinton exercised horribly bad judgement and cannot be trusted to protect America’s secrets, and if one cannot see that those are indeed issues for an election, then, well, I just don’t know what else to say here.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Hillary Clinton Team Held Off-The-Record Journalist Dinner Ahead Of 2016 Announcement
No doubt vying to be the most transparent administration ever someday, the Clinton campaign is off to a great start — sucking up to powerful journalists, who are happy to play along, excluding non-mainstream press, and swearing everyone to secrecy. What more likely scenario for open and objective news coverage could there be?Oh, in case you weren’t sure, that was sarcasm. The actual event for so-called journalists was not, and really, sadly, took place.
Hillary Clinton’s campaign team held an off-the-record dinner Thursday night in Washington, D.C., for roughly two dozen journalists and staff members at John Podesta’s house. Podesta is Chairman of the 2016 Hillary Clinton presidential campaign, and previously served as Chief of Staff to president Bill. The Clinton team is also holding a private event in New York on Friday night for journalists.
All off the record, of course.
Invited “reporters,” who promised not to report anything that was said included people from The New York Times, The Washington Post, Politico, The Wall Street Journal, The Associated Press, Bloomberg, McClatchy, Reuters, HuffPo and several major TV networks.
Clinton herself did not attend. But several key Clinton staffers, including Campaign Manager Robby Mook, Chief of Staff Huma Abedin, Communications Director Jennifer Palmieri, Strategic Communications Adviser Karen Finney, Senior Adviser Mandy Grunwald and pollster Joel Benenson, were there.
A Clinton spokesman declined to comment on the gathering. Naturally.
So if you don’t get it, get it now. Like with the emails, you, lousy slugs of
citizensconsumersvoters, will only be told what the Clinton campaign wants you to be told. The media, in return for a free dinner and the occasional exclusive leak, are happy to assist the Clinton’s in keeping quiet what they wish to keep quiet.For those with a little free time, look up “investigative journalism” in your history books for a laff.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
State Department Now Just Making It Up to Explain Away Clinton’s Excesses
State Department spokesdrone Jen Psaki is now just straight out making things up to explain away the questions surrounding Clinton and her email, and the State Department’s complicity.
Her “misstatements” can now be debunked with a click of a mouse, which we will do in a moment.
The devil is in the details on these things, as no one expects to find a notarized document that reads “Yes, I did it all to hide embarrassing stuff from the Freedom of Information Act because dammit it is my turn to be president, signed, Hillary”).
So let’s drill down.
The OF-109 FormOutgoing State Department personnel are required to sign a statement called an OF-109. I signed one when I retired from the State Department.
Though the possibility exists some folks get out the door without signing for whatever reason, mostly negligence, I can find no stated exceptions to having to sign. The document is straightforward; read it here. Basically it says you turned over “all [classified and] unclassified documents and papers relating to the official business of the Government acquired by me while in the employ of the Department or USIA.” The rest has to do with acknowledging you understand disclosure laws relating to those documents.
Clinton, somewhat infamously, never signed an OF-109. Had she done so, she would have committed perjury, at the minimum, because as we now know she did not turn over her emails upon exiting the job. She did not do what every other outgoing State Department person is required to do. Clinton has a large staff, and no doubt had the attention of State’s HR people, so it seems there was near zero chance her not signing was some mere oversight.
What Jen Psaki Said
But here’s what Jen Psaki said instead of all that:
The State Department spokesperson also explained why Clinton would not have signed the OF-109 separation statement. Psaki said that former secretaries of state “want to remain accessible” to future secretaries and presidents, which is why they maintain their security clearance. Psaki added that former secretaries may also want access to their files for future books.
See, none of that is true. Signing the OF-109 has nothing at all to do with retaining one’s security clearance. That is a fully separate, independent process. Signing the OF-109 has nothing at all to do with remaining accessible to future secretaries and presidents. Signing the OF-109 has nothing to do with accessing files for future books. As a private citizen, Clinton has no more special access to State Department files than you do.
It was all a lie. Psaki is the spokesperson. She has been asked about this matter numerous times, and has the full resources of the State Department behind her to research an answer. There is near zero chance she was uninformed. She just lied.
But It’s Just Some Form
One true thing Psaki did say was “that there has long been a responsibility placed on the outgoing employee to account for his or her emails.” Indeed. That accountability is embedded in the OF-109 form; that’s where the outgoing employee certifies she has done what she is required to do.
Of course signing or not signing the form does not change the underlying law and regulation requiring outgoing personnel to turn over their stuff, so there is also that independent of the form itself.
In rebuttal you will no doubt hear someone say “Yeah, yeah, it’s just another government form, so let’s focus on the important stuff.” This is the important stuff. Judging character, honesty and intent requires understanding the details.
BONUS: Sounds like somebody is leaning forward hoping for that sweet, sweet White House spokesperson job in 2016. Also, an unexplored side of all this is the complicity of the State Department in Clinton’s email “issues.” State allowed her to operate outside its rules and regulations, perhaps outside the law, for four years.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clinton Lied about Location of Email Server
In her only public comment on her personal email server, Clinton said:
It was on property guarded by the Secret Service and there were no security breaches. So I think that the use of that server… certainly proved to be effective and secure.
According to tech site Ars Technica, she lied.
Since at least 2010 (the server went online in early 2009) the email server with the Secretary of State’s official government emails was located in a commercial facility in Huntsville, Alabama. There would not be any Secret Service there.
Clinton’s staff has allowed the meme to circulate that the email server was a stand-alone device located at her Chappaqua, New York, home. That may have been true initially. Historic DNS records from October 2010 showed Clinton’s e-mail server was in fact at a static IP address provided by Optimum, a Cablevision subsidiary, that corresponded to the Clintons’ Chappaqua address.
After that, however, the home server was dropped in 2010, and the mail exchange (MX) record for clintonemail.com was moved to a hosted Microsoft Exchange server running out of a data center in Huntsville, Alabama. Such commercial data servers can be expensive stand alone devices, but are more commonly shared computers. Clinton’s email could conceivably been on a server alongside of www.ILikeBigButtsXXX.com. It would be a good question to ask the candidate.
The other feature of such rental data center hosting is the extensive backups they offer. Even a cheapo plan like the one used on this blog offers daily backups kept for a year. That means the likelihood of a backup of Clinton’s email exists in Huntsville, Alabama.
If I was a Congressional committee with subpoena power, I’d be on the phone right now to Huntsville.
BONUS: The server Clinton uses even to this day runs Microsoft Exchange 2010 server software, on an instance of Microsoft Windows Server 2008 with Internet Information Server 7.5, both of which have had numerous security vulnerabilities uncovered since this particular server was configured. Here’s a short list. One certainly hopes the host has kept tidy with his patches.
We have noted previously that Clinton’s earliest server ran for three months of her overseas travel without encryption, and that her use of a commercial spam filter service left her emails viewable to that company.
Clinton can make no credible claim that her email server was secure.
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