• Those Damn Emails

    November 19, 2016 // 53 Comments »

    hillary clinton

    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.



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    Clinton the Victim, FBI-Email Edition

    October 29, 2016 // 65 Comments »

    hillaryskates


    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 Black female 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 Victim

    The 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 Hillary

    The 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 Emails

    But 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.



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    A Government is Seizing Control of Our Election Process, and It Is Not the Russians

    October 8, 2016 // 72 Comments »

    Reichstag fire


    There is an attempt underway for a government to take control of our election process and throw the election to Hillary Clinton. It is not the Russian government. Mark this day — it is when we came to understand that the American government decided to elect a president.


    (Note: I understand in the minds of the mass media the most important issue in America today is Trump’s crude remarks, but there are indeed real things to be concerned about otherwise.)


    Here’s how:

    — Two days before the second presidential debate, the government of the United States officially accused Russia of a hacking campaign aimed at interfering in the U.S. election. In a joint statement, absent any specifics or technical details, the Department of Homeland Security and the Director of National Intelligence stated “the recent [hacked email] disclosures… are consistent with the methods and motivations of Russian-directed efforts… based on the scope and sensitivity of these efforts, only Russia’s senior-most officials could have authorized these activities.”

    — The statement goes on to detail how only Democratic servers were attacked, meaning the American government is claiming that Russia is trying to throw the election to Donald Trump, plain and simple. It is left unsaid why the Russians would risk cyberwar with the United States to do this, as many have suggested Trump is a neocon in spirit whose loose finger will be on the nuclear button from day one. Clinton is much more of a political realist, comfortable with the business-as-usual of the past eight years that has gone in Russia’s favor in the Ukraine and Syria. She in fact seems like the stable known known, always a preference.

    — Though the first “Russian” hacks were reported in July, it is only 48 hours before the second presidential debate that the statement was released. It could easily have been held until Monday, there is no national security urgency for this to come out Friday. However, with the timing, Trump, essentially tied with Clinton in the polls, will now spend much of the debate defending himself. Since the statement includes no details, only accusations, it is hard to see how anyone could defend themselves. It would be near-impossible for Trump to come out ahead Sunday night; this is a near-coup.

    — Despite the certainty with which the U.S. government has accused Russia of trying to influence the election by hacking into secured email servers, the FBI maintains there is no evidence the Russians or anyone else accessed Clinton unsecured, unencrypted email server laden with actual classified materials, including during Clinton’s first trip to Moscow when she sent and received encrypted email over the Internet and WiFi.


    — In the first presidential debate, Hillary Clinton broadly speculated that Donald Trump had paid no taxes. Days later, several pages of Trump’s tax returns, documents that had been sought unsuccessfully by the media for over a year, arrive at the New York Times, who front pages a story. In the Vice Presidential debate which followed, Trump’s running mate spent time on the defensive defending his boss’ deductions.

    — Clinton sent and received classified material on an unsecured, classified server. That violated the most basic rule of information security. She lied about it. She deleted emails and “lost” both the majority of her devices and many, many emails. The FBI and the Department of Justice, ahead of the Democratic nominating convention, found she violated no law. The Department of Justice granted broad immunity to key Clinton staffers, and allowed two of them to destroy their devices. No further investigation will thus be possible.

    — The State Department aided and abetted Clinton for over four years in hiding her private server, and avoiding her responsibilities under the Freedom of Information Act and the Federal Records Act. Only under court order has the Department stopped slow-walking its “review” process to release emails publically. There has been no investigation.

    — Emails released show a tangle of interests among State Department decisions, the Clinton Foundation and access to Hillary as Secretary of State (“pay for play”). Clinton sought Pentagon and State Department contracts for Chelsea’s friend. There has been no investigation.

    — The State Department and White House coordinated to “crush” Clinton’s email coverage.


    If you can add it up any other way than direct interference by the White House, the State Department, the Department of Justice, the FBI and the intelligence community, it would be interesting to hear how that works. The comments are open to make a benign case for these actions.



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    Does Over-Classification Matter With the Hillary Emails?

    April 15, 2016 // 8 Comments »


    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 Agency

    Clinton 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.”




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    How Clinton’s Handling Foreign Government Info Went Very Wrong

    September 10, 2015 // 15 Comments »

    hillary clinton

    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.

     

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    Clinton Email Markings Changed to Block Documents’ Release

    September 3, 2015 // 6 Comments »

    State Department building


    We’re going to get a little deeper into the way classified material and its disclosure is handled here, but stick with the details. They show the cleverness of Clinton’s people in manipulating existing processes to mask classified material contained in her emails.



    FOIA in Theory

    In theory, all U.S. government documents, including Clinton’s emails, are subject to release under the Freedom of Information Act (FOIA). A classified document can still be, in theory, declassified and released, perhaps after enough time has passed that the information is no longer sensitive, as in the case, for example, of WWII messages about planned invasions and the like.



    FOIA Exemptions

    However, the FOIA provides for nine specific exemptions, conditions under which information can be withheld, classified or not. The full list is here, but we’ll focus on just two in the context of the Clinton emails: B1 and B5.

    B1 is simple: the document contains properly classified material and cannot be released until the material is declassified, if ever. A no-brainer example would be a list of undercover CIA agents. That is never going to see daylight.

    B5 refers to deliberative process, the details of how the government makes policy, the back-and-forth principals receive, the “how” of how decisions are made. Such information does not necessarily have to even be classified, and marking it as B5 does not in any way imply it is classified.

    The theory behind the existence of B5 is that advisors need to be able to share advice fully and frankly, throwing out at times odd ideas, playing devil’s advocate, and the policy maker free to engage in a full discussion of options, without concern that all that messy process will become public. Some in government also feel exposing the processes by which decisions are made assists America’s adversaries.

    B5 is near-constantly misused by government to block information that should be released, but we’ll stick with theory for the time being.

    Changes in Clinton Email Exemption Categories

    Reports suggest at least four Clinton emails had their exemption markings changed to a category that shields the content from the public, in what some believe is an effort to hide the true extent of classified information on the former secretary of state’s server.

    The emails in question were originally redacted under exemption B1, meaning the information in them was withheld because that information was properly classified. The impact of that on Clinton was two-fold: it confirmed that the emails held classified contrary to her claims, and it set up release of the information simply by someone with the authority to declassify it.

    Changing the exemption to B5, which was done by State Department lawyers (more below), removed the stigma of classified material in unclassified emails. Perhaps more importantly, it placed the authority of release on State itself. The Courts have long upheld the right of agencies to withhold B5 exempted information indefinitely, meaning State could deep-six the information in those emails forever.

    See what they did there?



    The Process

    The process by which the Clinton emails were remarked, if true, speaks to additional naughty acts, centered again around State’s primary political troubleshooter, Patrick Kennedy.

    According to congressional testimony, at least one of the lawyers in the State Department’s Office of the Legal Advisor, where the changes were made, is Catherine Duval, who also handles the release of documents to the Benghazi Select Committee. She previously was the attorney in charge of the Internal Revenue Service’s email production to Congress. And small world; Duval once worked for the same firm as Clinton’s private attorney, David Kendall.

    Anyone see any pattern here?

    Fox News was told there were internal State Department complaints that Duval’s work, and that of a second lawyer also linked to Kendall, created a conflict of interest during the email review.

    The disagreement between some State employees and Duval over the changed exemption markings grew so heated that a final decision had to be kicked upstairs.



    Pat Kennedy, Again

    Now wait for it — that decision made upstairs, in favor of Clinton, the B5 exemption, was made by Undersecretary of Management Pat Kennedy, State’s own pointman briefing Congress on State’s proper handling of the entire Clinton email affair. Kennedy is also very likely the most senior State official under the secretary to have approved her use of a private email server.

    Judicial Watch is now seeking a deposition of Kennedy in a case scrutinizing Clinton aide Huma Abedin’s status as a special government employee. “All these issues fall under his responsibility,” Judicial Watch said.

    Asked to respond to the allegations, a State Department official added that the lawyers do not have the final say on the codes, emphasizing it is a “multi-step review.”

    Indeed, a multi-step review, albeit one that ends with Pat Kennedy.



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    Follow the Money? Not with Hillary, Follow Pat…

    August 28, 2015 // 19 Comments »

    pat kennedy


    The old adage, “follow the money,” is still not a bad way to suss out wrongdoing. Originated during the Watergate era, the term says if you follow the trail of money through an organization or a caper, you’ll find the guilty people at the end.

    With the State Department and Hillary Clinton, the advice should read: “Follow Pat Kennedy.”



    Meet Pat Kennedy

    The name of long-time State Department Under Secretary for Management, Patrick Kennedy, pictured, is unknown to most journalists and nearly all of the public, but he in fact is present at every significant public issue State confronts. Take a look…



    Kennedy and Manning

    Do a little Googling around, and there’s Pat helping drive nails into Chelsea Manning’s coffin, testifying at his trial about the “grave damage” done to America’s national security. Kennedy in September 2013 admitted his testimony “contained misstatements,” which he said were “inadvertent.” Kennedy also oversaw State’s internal report on Wikileaks’ impact and ran the working group that was supposed to identify people at risk because their names appeared in the State Department cables online.



    Kennedy and Benghazi

    And at the Congressional Benghazi hearings, there’s Pat testifying Clinton did no wrong, that State as an institution did no wrong, and helping throw a few lesser officials under the bus in hopes of making it all go away.

    One of those officials Pat helped deep six later came out as a whistleblower, suggesting Clinton’s staff skimmed incriminating documents off the pile turned over to Congress.

    Kennedy also was the one who hand-picked the members of State’s internal Accountability Review Board that failed in December 2012 to find any senior official at fault for any wrongdoing in the run-up to Benghazi. That Review Board chose not to interview Secretary of State Clinton about her role in Benghazi.



    Kennedy and Child Prostitution Cover-Up

    It was Pat who helped former American Ambassador to Belgium Howard Gutman retire in order to curtail a public investigation.

    A State Department investigator asserted Gutman solicited “sexual favors from both prostitutes and minor children.” Howard Gutman and members of Clinton’s security detail were also accused of hiring prostitutes. According to an internal memo prepared by the State Department Inspector General in October 2013, Kennedy personally called off an investigation.



    Kennedy and Iraq

    Pat was also one of the primary justifiers for the $3.5 billion spent on building America’s largest embassy in the world, in Baghdad. He oversaw parts of the Blackwater investigation and contracting.

    Kennedy was also the central figure in the First Amendment struggle over my Iraq book critical of the State Department, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People



    Dirty Deeds Done Dirt Cheap

    There’s more, but you get the picture. When dirty deeds need to be done dirt cheap to protect Clinton and State, Pat’s your man.

    So it is little surprise that media reports now tell us that the Under Secretary Patrick Kennedy is now in charge of running interference on Capitol Hill regarding the Clinton email controversy.

    Kennedy reportedly visited lawmakers in July and argued that the Abedin email along with another one sent in 2012 by another Clinton aide, Jake Sullivan, are not classified. The Under Secretary also argued that the information in the emails was already public.

    However, one source said that it was odd that Kennedy wanted to discuss the matter in a secure facility for classified information while simultaneously arguing that the Abedin email was not classified.

    The source also said that Kennedy cited a report from the Irish Times in 2011 as evidence, but that the details were not comparable. Kennedy also said that someone from the CIA agreed with his conclusion. However, the CIA was not the agency that sent the email.



    The Fixer

    Kennedy likely has more in the fire with the Clinton emails than his usual dollops of blind institutional loyalty.

    Given his role at State, Pat Kennedy is very likely to be the most senior official below the Secretary of State’s own staff to have either signed off on Hillary’s email server or passively fended off concerns from the rank and file about it. There are no doubt interesting emails with his name on them to be FOIAed or subpoenaed about all that. Pat no doubt hopes like hell a Democrat wins the presidential election or he is toast.

    So, mark this down: when Pat Kennedy steps into the picture, State/Clinton knows it is in real trouble and is calling in its Fixer of Last Resort. Journalists would be wise to keep on eye on Kennedy’s schedule over the coming months.



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    Posted in Iraq