Fox Baselessly Suggests Clinton Knew Her Emails Were Classified Because Of Their Content

Fox News suggested that Hillary Clinton must have known her emails were classified when she received them during her tenure as secretary of state because they contained satellite imagery and signal intelligence. But officials say that the emails don't include any form of “sensitive sourcing” and may not have been classified at the time she received them.

Intelligence Community Inspector General Says Two Emails From Clinton's Server Should Be Marked “Top Secret”  

Intelligence Community Inspector General Says Two Emails From Clinton's Server Contain “Top Secret” Information. The inspector general for the Intelligence Community (ICIG), I. Charles McCullough, reportedly informed leaders of key congressional oversight committees that two classified emails previously discovered on Clinton's server contain top secret information. As McClatchy reported:

The inspector general for the Intelligence Community notified senior members of Congress that two of four classified emails discovered on the server Clinton maintained at her New York home contained material deemed to be in one of the highest security classifications - more sensitive than previously known.

The notice came as the State Department inspector general's office acknowledged that it is reviewing the use of “personal communications hardware and software” by Clinton's former top aides after requests from Congress. [McClatchy DC, 8/11/15]

ICIG Says Information Derived From Communications Intercepts And Satellite Imagery. In his letter to congressional leaders, McCullough wrote that the emails in question  “include information classified up to ” TOP SECRET // SI/TK/ /NOFORN." According to the Intelligence Community Classification and Control Markings Implementation manual,  “SI” indicates information  “derived from” communications intercepts, while “TK” indicates information  “related to”  satellite imagery. [McCullough letter, 8/11/15; Intelligence Community Classification and Control Markings Implementation Manual, 5/31/11]

Fox Jumps To Speculate Clinton Knew Her Emails Were Classified Because They Contained Satellite Imagery And Signal Intelligence 

Andrew Napolitano: Clinton's Emails “Contained Satellite Imagery And Signal Intelligence.”  During the August 12 edition of The Kelly File, host Megyn Kelly reported that an “unnamed State Department Official”  had told Fox News that “some of the nation's most sensitive top secret information was communicated on Mrs. Clinton's server.” Joining to discuss the story, network senior judicial analyst Andrew Napolitano explained that the source “indicated” that the emails had “contained satellite imagery and signal intelligence,” adding that “no one in the intelligence community would have” sent such documents without marking them top secret:

MEGYN KELLY: Big news in Hillary Clinton email scandal. Just before we came to air tonight, an unnamed State Department official telling Fox News that some of nation's most sensitive, top secret information was communicated on Mrs. Clinton's server. It was highly classified at the time, contradicting one of the key arguments in team Clinton's defense. Also, another big development, this State Department source suggesting to Fox that a Clinton insider must have been the one to actively strip the classification markings off of the information before sending it, which is a felony, potentially punishable by serious prison time. Judge Andrew Napolitano is our Fox News senior judicial analyst, and Judge, I just want to clear it up for the viewers -- so this State Department official is saying, we now know at least one email was top, top, top, top secret, that the State Department doesn't have capability to mark a document that way. It had to come to State from some place else in the Intelligence Community.

ANDREW NAPOLITANO: If I may, the email that we now know about, a State Department source speaking to Fox News indicated that it contained satellite imagery and signal intelligence. Now, the state department is not capable of producing its own satellite imagery or its own signal intelligence. Everybody knows what a satellite is. Consider signal intelligence basically surveillance. 

KELLY: So the document had to come from someplace in the intelligence community into state.

NAPOLITANO: Correct and no one in the intelligence community would send this document without marking it top secret because they would expose themselves to a felony. 

[...]

KELLY: Why are they so sure that happened? Why couldn't it be someone in the Intelligence Community screwed up, and didn't mark the documents classified?

ANDREW NAPOLITANO: Possible, but extremely unlikely. The reason it is unlikely is because the Intelligence Community knows their members can go to jail for simple negligence by exposing a top secret document. [Fox News, The Kelly File8/12/15]

Fox & Friends Host Claims Clinton's Emails “Should Have Been Labelled Obtained Via Satellite.”  On the August 13 edition of Fox & Friends co-host Elisabeth Hasselbeck asserted that Clinton's emails contained satellite imagery that should have been labeled as such: 

STEVE DOOCY: Alright, we start once again today with a Fox News alert. And it's a Hillary Clinton e-mail bombshell. Yesterday we told you that she had turned over her e-mail server that had been in her barn up in Chappaqua to the feds. Well now, it turns out there's a story out there that it sounds like what they're saying is somebody who was working for Hillary before she got e-mail, classified and top secret stuff would come into the State Department. Somebody at the State Department stripped those designations  of the classifications off and sent it to the boss. And she wound up with top secret stuff that didn't say top secret on it.

ELISABETH HASSELBECK:  According to the content of whatever emails they have there, according to the inspector general's report, it should have not only been labeled top secret, which is the highest level of information.

DOOCY: It was!

HASSELBECK:  It should have been that, it should have been labeled special intelligence, It should have been labeled obtained via satellite only, and only to be seen by American eyes. All those should have been on there. And somehow, they were somehow stripped from the title and subject line. [Fox News, Fox & Friends8/13/15

Napolitano Asserts That Clinton's Emails Contained Top Secret “Satellite Views Of A Foreign Country.”  During the August 13 edition of Fox & Friends, Napolitano specified that one of Hillary Clinton's emails contained  “satellite views of a foreign country,”  which the secretary of state would have known was “top secret” : 

STEVE DOOCY: Yesterday, you were with us talking about how Hillary Clinton's campaign has turned over, suddenly out of nowhere, the email server. You said yesterday, 24 hours ago, that the situation for her was grave. Now there's new information. How would you depict it?

NAPOLITANO: The new information is that the top secret email was satellite views of a foreign country. The State Department does not have its own satellites, therefore that email came into the State Department from the Intelligence Community. If the Intelligence Community failed to mark it top secret, they lose their jobs, they can be prosecuted. It was marked top secret. If it was not marked top secret when Mrs. Clinton got it, which she claims, then someone removed the markings. If someone removed the markings, that's a felony. If someone removed the markings to help Hillary have plausible deniability, that is a criminal conspiracy to violate the espionage laws of the United States [Fox News, Fox & Friends8/13/15, emphasis added]

Bret Baier:  Hillary Clinton Received  “Satellite Intelligence And Signal Intelligence ... In Her Own Personal Email.” Appearing on the August 14 edition of America's Newsroom, network host Bret Baier suggested that Hillary Clinton's email contained  “highly classified”  satellite and signal intelligence  “in her own personal email” and that if Clinton didn't recognize it as such “that is another issue” :

BRET BAIER: Understand that you have a very serious situation here in the handling of classified material period. If it was marked, if it wasn't marked. This is the secretary of state who spent her life in politics, in or around politics. She knows and she even said this publicly what the classification system is. If she doesn't know that satellite intelligence and signal intelligence that she is getting in her own personal email is highly classified, whether it is marked or not, that is another issue. People have gone to prison for handling classified information, mishandling it. They have been fined significantly. They have lost their jobs. We're talking the top of the top as far as classification and sensitivity. So, I think no matter how it is marked and how that whole thing comes down and who took the marking off, you have a big problem here. [Fox News, America's Newsroom8/13/14]

Peter Doocy: The “Top Secret” Emails “Contained Satellite Imagery And Signals Intelligence.”  During the August 13 edition of America's Newsroom, Fox correspondent Peter Doocy speculated that “we now know” that “someone on [Clinton's] staff or someone from her inner circle must have altered the messages” to remove the classification markings:

PETER DOOCY: We now know at some point between the time the State Department first received these top secret files and the time those files were forwarded to Secretary Clinton's home server, someone on her staff or someone from her inner circle must have altered the messages so they didn't say top secret right on the top. A State Department official tells us the messages would have been marked classified “top secret” by someone at an intel agency, because they contained satellite imagery and signals intelligence and that's not stuff that diplomats can go out and get themselves. But a diplomat or a member of the secretary's staff could have taken the “top secret” markings off if things went the way the State Department continues to say they did. [Fox News, America's Newsroom8/13/15, emphasis added]  

But Officials Say Clinton's Emails Do Not Include “Confidential Intelligence Methods Or Any Other Form Of Sensitive Sourcing” And May Not Have Been Classified At The Time

Associated Press Sources: Emails Don't Include Any “Form Of Sensitive Sourcing.”  The Associated Press reported that their sources indicate that “nothing in the emails [Clinton] received makes clear reference to communications intercepts, confidential intelligence methods or any other form of sensitive sourcing.” The AP also reported that their sources disagreed about whether the emails contained classified information. From the AP:

The officials who spoke to the AP on condition of anonymity work in intelligence and other agencies. They wouldn't detail the contents of the emails because of ongoing questions about classification level. Clinton did not transmit the sensitive information herself, they said, and nothing in the emails she received makes clear reference to communications intercepts, confidential intelligence methods or any other form of sensitive sourcing.

The drone exchange, the officials said, begins with a copy of a news article that discusses the CIA drone program that targets terrorists in Pakistan and elsewhere. While a secret program, it is well-known and often reported on. The copy makes reference to classified information, and a Clinton adviser follows up by dancing around a top secret in a way that could possibly be inferred as confirmation, they said. Several officials, however, described this claim as tenuous.

But a second email reviewed by Charles McCullough, the intelligence community inspector general, appears more suspect. Nothing in the message is “lifted” from classified documents, the officials said, though they differed on where the information in it was sourced. Some said it improperly points back to highly classified material, while others countered that it was a classic case of what the government calls “parallel reporting” - different people knowing the same thing through different means. [Associated Press, 8/14/15, emphasis added]

State Department: Emails Were  “Not Marked As Classified” And May Not Actually Have Been Classified At The Time. The State Department's statement on the retroactive “top secret” designation made clear that the emails at issue originated with State Department employees, not Clinton herself, and were not marked as classified at the time:

The following is attributable to Spokesperson John Kirby:

"The State Department takes seriously its obligations to protect sensitive information, holding its employees to a high standard of compliance with regulations and procedures.

"The Intelligence Community has recommended that portions of two of the four emails identified by the Intelligence Community's Inspector General should be upgraded to the Top Secret level.

Department employees circulated these emails on unclassified systems in 2009 and 2011 and ultimately some were forwarded to Secretary Clinton. They were not marked as classified.

“These emails have not been released to the public. While we work with the Director of National Intelligence to resolve whether, in fact, this material is actually classified, we are taking steps to ensure the information is protected and stored appropriately.” [Twitter.com, 8/11/15; emphasis added]