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  • NY Times Report Undercuts Conservative Automatic Classification Myth Used To Smear Hillary Clinton

    Blog ››› ››› MEDIA MATTERS STAFF

    The New York Times reported that sending “‘foreign government information’ through the government’s unclassified computer systems,” a designation that applies to “nearly three-quarters” of Democratic presidential front-runner Hillary Clinton’s now-classified emails, “‘does not amount to mishandling the information.’” The Times also revealed that CIA Director John Brennan sent retroactively classified information, underscoring a pattern of “how routinely sensitive information is emailed on unclassified government servers.”

    Right-wing media have relentlessly attempted to scandalize Clinton's email use. Conservative pundits have alleged that “foreign government communications are considered classified” and that sending “information derived from foreign government sources ... in a non-classified setting violates” the law. But according to a 2009 executive order, it is not mandatory to classify communications concerning foreign government information.

    The New York Times report substantiated this, revealing that the assistant secretary of state for legislative affairs, Julia Frifield, sent a letter to Capitol Hill stating that “officials were in fact allowed to send ‘foreign government information’ through the government’s unclassified computer systems.” Frifield’s letter “went on to say that using ‘foreign government information’ in unclassified emails ‘does not amount to mishandling the information,’” and that these correspondences are only made classified if they have to be released to the public. The Times noted that “nearly three-quarters” of Clinton’s now-classified emails are “classified because they contained what is called ‘foreign government information’” and were publicly released. The article also revealed that CIA Director John Brennan sent retroactively classified information, reinforcing how “routinely sensitive information is emailed on unclassified government servers” by top officials. From the May 11 New York Times report:

    On the morning of March 13, 2011, the assistant secretary of state for Near Eastern affairs, Jeffrey D. Feltman, wrote an urgent email to more than two dozen colleagues informing them that Saudi Arabia and the United Arab Emirates were sending troops into Bahrain to put down antigovernment protests there.

    Mr. Feltman’s email prompted a string of 10 replies and forwards over the next 24 hours, including to Secretary of State Hillary Clinton, as the Obama administration debated what was happening and how to respond.

    The chain contained information now declared classified, including portions of messages written by Mr. Feltman; the former ambassador in Kuwait, Deborah K. Jones; and the current director of the Central Intelligence Agency, John O. Brennan.

    The top administration officials discussed the Bahrain situation on unclassified government computer networks, except for Mrs. Clinton, who used a private email server while serving as secretary of state.

    Her server is now the subject of an F.B.I. investigation, which is likely to conclude in the next month, about whether classified information was mishandled.

    Whatever the disposition of the investigation, the discussion of troops to Bahrain reveals how routinely sensitive information is emailed on unclassified government servers, reflecting what many officials describe as diplomacy in the age of the Internet, especially in urgent, fast-developing situations.

    [...]

    Of the 30,322 emails made public, 2,028 have had portions redacted and are now classified at the lowest level of classification, “confidential.”

    Nearly three-quarters of those emails were classified because they contained what is called “foreign government information” — a vast category of information, gathered through conversations and meetings with foreign counterparts that are the fundamentals of diplomacy, but which had to be protected when the emails were released.

    Last week, in an apparent attempt to dispel criticism that many of the emails were improperly sent, a top State Department official argued in a letter to three Senate Democrats that the nation’s diplomats and officials were in fact allowed to send “foreign government information” through the government’s unclassified computer systems.

    “Department officials of necessity routinely receive such information through unclassified channels,” said the letter, dated May 2 and written by the assistant secretary of state for legislative affairs, Julia Frifield.

    “For example, diplomats engage in meetings with counterparts in open settings, have phone calls with foreign contacts over unsecure lines, and email with and about foreign counterparts via unclassified systems.”

    The letter went on to say that using “foreign government information” in unclassified emails “does not amount to mishandling the information.”

    The State Department, unlike some other federal agencies, does not have the authority to redact that category of information even if it is required to release documents under the Freedom of Information Act.

    Thus, the only way the State Department could withhold “foreign government information” in the emails being released under court order was to classify it, according to the letter.

  • Politico: Precedent Is On Clinton's Side Regarding Email Investigation

    Blog ››› ››› MEDIA MATTERS STAFF

    Politico’s Senior White House Reporter Josh Gerstein reviewed “dozens of federal indictments for mishandling of classified records” and then reported that an indictment of former Secretary of State Hillary Clinton for her use of a private email server is “highly unlikely.” He also noted that the cases that did lead to an indictment “almost always” included "a deliberate intent to violate classification rules" and “aggravating circumstances that don’t appear to be present in Clinton’s case.”

    Right-wing media have repeatedly attempted to muddy the facts surrounding the investigation into Democratic presidential candidate Clinton’s private email server by falsely comparing the case to that of Gen. David Petraeus, speculating on the implications or hidden motives of every new turn in the investigation, and even suggesting that the Department of Justice would handle the investigation “on political grounds, not legal grounds.”

    In the April 11 article, Gerstein wrote that “former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant.” Moreover, Gerstein highlighted interagency disputes over what is considered classified in Clinton’s emails. He noted that the State Department “has publicly disputed some of the intelligence community’s claims that information in Clinton’s account was highly sensitive,” and that it “seems doubtful that prosecutors would pursue charges if State Department officials are likely to contradict an intelligence agency’s assessment about the sensitivity of the records.” From the April 11 article:

    It’s the most explosive question of the 2016 presidential campaign: Could Hillary Clinton get indicted for her handling of sensitive materials through her home email server?

    A POLITICO review of dozens of recent federal investigations for mishandling of classified records suggests that it’s highly unlikely — but not impossible.

    The examination, which included cases spanning the past two decades, found some with parallels to Clinton’s use of a private server for her emails, but — in nearly all instances that were prosecuted —aggravating circumstances that don’t appear to be present in Clinton’s case.

    The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form.

    Clinton herself, gearing up for her FBI testimony, said last week that a prosecution is “not gonna happen.” And former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant.

    […]

     

    In addition, attorneys noted that mishandling of diplomatic information that doesn’t have an obvious national security component to it probably couldn’t be prosecuted under the Espionage Act, which is the felony statute most widely cited in discussions of the potential legal fallout of the Clinton email flap.

    So, the real focus is likely to be a narrower set of messages: 65 deemed “Secret” and 22 deemed “Top Secret.” Because of the nature of email, the actual amount of highly sensitive information is more limited than those numbers suggest. The 22 “Top Secret” messages consist of seven “threads,” presumably with the same classified subject matter discussed in each email in the thread.

    Using some of those exchanges to build a criminal case would also run into another challenge: the State Department has publicly disputed some of the intelligence community’s claims that information in Clinton’s account was highly sensitive. It seems doubtful that prosecutors would pursue charges if State Department officials are likely to contradict an intelligence agency’s assessment about the sensitivity of the records.

    […]

    However, some experts on national security law said Clinton’s intent is far more important than the volume of emails at issue or how long they spent on her server. They noted that none of the information was marked classified and that there’s no indication she was trying to send classified information to anyone not authorized to look at it.

    “The law treats the intentional disclosure of one piece of classified information to someone not entitled to receive it far more seriously than the accidental communication of dozens of pieces of classified information to people who were not supposed to get it,” American University law professor Stephen Vladeck said, citing explicit and implicit requirements that a person charged with violating the laws relating to classified information know that the information they mishandled was classified.

    […]

    Several experts told POLITICO that in light of the legal obstacles to a case and the Justice Department’s track record in such prosecutions they are confident Clinton won’t face charges.

    “Based on everything I’ve seen in the public media, not only don’t I see the basis for criminal prosecution, I don’t even see the basis for administrative action such as revoking a clearance or suspending it,” said Leonard, the former director of the Information Security Oversight Office.

    “Looked at as a potential criminal case, this would be laughed out of court,” said William Jeffress, a Washington attorney on the defense team for former Bush White House aide Scooter Libby during his trial for lying in a leak investigation. “There hasn’t been any case remotely approaching a situation where someone received emails that were not marked classified, who simply receives them and maybe replies to them and a criminal prosecution is brought,” Jeffress said.

  • The "150 FBI Agents" Fiasco Isn't The First Time Anonymous Sources Have Burned Fox's Herridge

    Facts Have Consistently Undermined Catherine Herridge's Unnamed Clinton Email Sources

    ››› ››› ANDREW LAWRENCE

    In her articles on Hillary Clinton's use of private email while secretary of state, Fox News chief intelligence correspondent Catherine Herridge has relied heavily on anonymous sources to push allegations that Clinton used her email inappropriately. But the facts have consistently undermined many claims Herridge has made in her reports, including the debunked assertion that 150 FBI agents were investigating Clinton's private email server -- a wildly exaggerated figure that The Washington Post also reported.

  • As Primaries Kick Off, NY Post Recycles More Baseless Speculation About Clinton Email Conspiracies

    ››› ››› SERGIO MUNOZ

    The New York Post continues to publish dubiously sourced and baseless speculation about investigations around Hillary Clinton's emails as secretary of state. The paper is now reporting that there was a premeditated conspiracy to share classified information, citing claims from a former federal investigator who resigned after he was accused of corruption.