Fox News Erroneously Insists It Was Illegal For Hillary Clinton To Discuss NY Times Articles In Emails

Fox News' chief intelligence correspondent Catherine Herridge hyped claims from an anonymous source that former Secretary of State Hillary Clinton's personal email “discussed [an] Afghan national's CIA ties” to allege that Clinton violated a 2009 executive order clarifying classification procedures. But Clinton's emails reportedly discussed already published articles by the New York Times, which are not automatically classified under the executive order.

Fox Reports An Email Chain That Included Hillary Clinton May Have Discussed Afghan National's Ties To CIA

Fox's Catherine Herridge: “Clinton Email Chain Discussed Afghan National's CIA Ties.” Fox News' chief intelligence correspondent Catherine Herridge reported in an “exclusive” that an email chain which included Hillary Clinton contained conversations about an “Afghan national's ties to the CIA,” which Herridge suggested was a violation of “an executive order signed by President Obama [which] said unauthorized disclosures are 'presumed to cause damage to the national security'” :

One of the classified email chains discovered on Hillary Clinton's personal unsecured server discussed an Afghan national's ties to the CIA and a report that he was on the agency's payroll, a U.S. government official with knowledge of the document told Fox News.

The discussion of a foreign national working with the U.S. government raises security implications - an executive order signed by President Obama said unauthorized disclosures are “presumed to cause damage to the national security.”

The U.S. government official said the Clinton email exchange, which referred to a New York Times report, was among 29 classified emails recently provided to congressional committees with specific clearances to review them. In that batch were 22 “top secret” exchanges deemed too damaging to national security to release.

[...]

Based on the timing and other details, the email chain likely refers to either an October 2009 Times story that identified Afghan national Ahmed Wali Karzai, the half-brother of then-Afghan president Hamid Karzai, as a person who received “regular payments from the Central Intelligence Agency” -- or an August 2010 Times story that identified Karzai aide Mohammed Zia Salehi as being on the CIA payroll. Ahmed Wali Karzai was murdered during a 2011 shoot-out, a killing later claimed by the Taliban.

Fox News was told the email chain included then-Secretary of State Clinton and then-special envoy to Afghanistan and Pakistan Richard Holbrooke and possibly others. The basic details of this email exchange were backed up to Fox News by a separate U.S. government source who was not authorized to speak on the record.

[...]

While the Clinton campaign claims the government classification review has gone too far, Executive Order 13526, in a section called “classification standards,” says, “the unauthorized disclosure of foreign government information is presumed to cause damage to the national security.” [FoxNews.com, 2/17/16]

“Top Secret” Emails Reportedly Discuss New York Times Articles About CIA Payments To Afghans During War

NY Times: “Brother Of Afghan Leader Said To Be Paid By C.I.A.” In October 2009 The New York Times reported that the CIA paid Afghan national Ahmed Wali Karzai, brother of Afghan President Hamid Karzai, “for a variety of services, including helping to recruit an Afghan paramilitary force” :

KABUL, Afghanistan -- Ahmed Wali Karzai, the brother of the Afghan president and a suspected player in the country's booming illegal opium trade, gets regular payments from the Central Intelligence Agency, and has for much of the past eight years, according to current and former American officials.

The agency pays Mr. Karzai for a variety of services, including helping to recruit an Afghan paramilitary force that operates at the C.I.A.'s direction in and around the southern city of Kandahar, Mr. Karzai's home.

[...]

The relationship between Mr. Karzai and the C.I.A. is wide ranging, several American officials said. He helps the C.I.A. operate a paramilitary group, the Kandahar Strike Force, that is used for raids against suspected insurgents and terrorists. On at least one occasion, the strike force has been accused of mounting an unauthorized operation against an official of the Afghan government, the officials said.

Mr. Karzai is also paid for allowing the C.I.A. and American Special Operations troops to rent a large compound outside the city -- the former home of Mullah Mohammed Omar, the Taliban's founder. The same compound is also the base of the Kandahar Strike Force. “He's our landlord,” a senior American official said, speaking on the condition of anonymity.

Mr. Karzai also helps the C.I.A. communicate with and sometimes meet with Afghans loyal to the Taliban. Mr. Karzai's role as a go-between between the Americans and the Taliban is now regarded as valuable by those who support working with Mr. Karzai, as the Obama administration is placing a greater focus on encouraging Taliban leaders to change sides. [The New York Times, 10/27/09]

NY Times: “Karzai Aide In Corruption Inquiry Is Tied To C.I.A.” In August 2010 The New York Times reported on the CIA's alleged payments to an aide to then-Afghan President Hamid Karzai:

The aide to President Hamid Karzai of Afghanistan at the center of a politically sensitive corruption investigation is being paid by the Central Intelligence Agency, according to Afghan and American officials.

Mohammed Zia Salehi, the chief of administration for the National Security Council, appears to have been on the payroll for many years, according to officials in Kabul and Washington. It is unclear exactly what Mr. Salehi does in exchange for his money, whether providing information to the spy agency, advancing American views inside the presidential palace, or both. [The New York Times, 8/24/10]

But Classification Of Emails Discussing Such News Articles Is Not Automatic Under 2009 Executive Order

Executive Order 13526: Classification Can Be Considered If Unauthorized Disclosure May Cause Damage To National Security. In December 2009, Obama signed an executive order prescribing “a uniform system for classifying, safeguarding, and declassifying national security information.” The order did not mandate any classifications. Instead, it authorized communications concerning “foreign government information” and “foreign relations” to be considered for classification if “its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security” (emphasis added):

Sec. 1.4. Classification Categories. Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security;

(f) United States Government programs for safeguarding nuclear materials or facilities;

(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

(h) the development, production, or use of weapons of mass destruction. [Executive Order 13526 -- Classified National Security Information, 12/29/09]

E.O. 13526: “Information May Be Classified,” And If Classification Need Is In Doubt, “It Shall Not Be Classified.” The order did not mandate that communications dealing with foreign relations must be classified. Instead, Section 1.1.(b) clarified that "[i]f there is significant doubt about the need to classify information, it shall not be classified":

(b) If there is significant doubt about the need to classify information, it shall not be classified. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review. [Executive Order 13526 -- Classified National Security Information, 12/29/09]

Security Expert: Order “Authorizes Classification; It Doesn't Require It.” In an interview with Mother Jones, security expert Steven Aftergood explained that Executive Order 13526 on classification “is permissive, not mandatory.” Rather than requiring that communication between and about foreign officials be marked classified, the order “authorizes classification” :

“Strictly speaking, the executive order on classification is permissive, not mandatory,” Steven Aftergood, who writes Secrecy News for the Federation of American Scientists, toldMother Jones. “In other words, it authorizes classification; it doesn't require it.” Aftergood pointed to Executive Order 13526, signed by President Obama in December 2009, which says “information may be originally classified,” but does not explicitly mandate it. [Mother Jones, 8/21/15]

Fox Has Previously Scandalized Clinton's Emails Discussing New York Times Articles On U.S. Drone Program

FoxNews.com: Letter From Intelligence Community IG Shows Clinton's Emails Contained Information On Government's “Most Secretive And Highly Classified Programs.” A FoxNews.com report claimed a letter to Congress from the Intelligence Community (IC) Inspector General, Charles McCullough, stated Hillary Clinton's emails contained information on the government's “most secretive and highly classified programs,” including intelligence designated “special access programs” (SAP), a “level of classification beyond even 'top secret'” :

Hillary Clinton's emails on her unsecured, homebrew server contained intelligence from the U.S. government's most secretive and highly classified programs, according to an unclassified letter from a top inspector general to senior lawmakers.

Fox News exclusively obtained the unclassified letter, sent Jan. 14 from Intelligence Community Inspector General I. Charles McCullough III. It laid out the findings of a recent comprehensive review by intelligence agencies that identified “several dozen” additional classified emails -- including specific intelligence known as “special access programs” (SAP).

That indicates a level of classification beyond even “top secret,” the label previously given to two emails found on her server, and brings even more scrutiny to the presidential candidate's handling of the government's closely held secrets. [FoxNews.com, 1/19/16]

Politico And NBC News Explained Emails In Question Probably Related To Widely-Known Public Information About U.S. Drone Program

Politico: Government Official Suggests “Some Or All” Of Clinton Emails Designated SAP Referenced Public Information About U.S. Drone Strikes. A government official told Politico “some or all of the emails deemed to implicate 'special access programs' related to U.S. drone strikes” and explained the information was "'not obtained through a classified product,'" although “the intelligence community considers information about classified operations to be classified even if it appears in news reports or is apparent to eyewitnesses on the ground” :

The official, who spoke on condition of anonymity, said some or all of the emails deemed to implicate “special access programs” related to U.S. drone strikes. Those who sent the emails were not involved in directing or approving the strikes, but responded to the fallout from them, the official said.

The information in the emails “was not obtained through a classified product, but is considered 'per se' classified” because it pertains to drones, the official added. The U.S. treats drone operations conducted by the CIA as classified, even though in a 2012 internet chat Presidential Barack Obama acknowledged U.S.-directed drone strikes in Pakistan.

The source noted that the intelligence community considers information about classified operations to be classified even if it appears in news reports or is apparent to eyewitnesses on the ground. For example, U.S. officials with security clearances have been warned not to access classified information leaked to WikiLeaks and published in the New York Times.

“Even though things are in the public domain, they still retain their classification level,” the official said. “The ICIG maintains its position that it's still 'codeword' classified.” [Politico, 1/19/16]

NBCNews.com: Senior U.S. Officials Say Clinton Emails Discussed One Of “The Worst Kept Secrets In Washington.” According to NBCNews.com, senior government officials confirmed that the reportedly classified information in the Clinton emails included discussions about the well-known CIA drone strike program, “among the worst kept secrets in Washington” since at least 2009. Not only did the officials characterize the email discussions as “innocuous,” NBCNews.com pointed out “various public web sites continue to keep track of each CIA drone strike” :

The classified material included in the latest batch of Hillary Clinton emails flagged by an internal watchdog involved discussions of CIA drone strikes, which are among the worst kept secrets in Washington, senior U.S. officials briefed on the matter tell NBC News.

The officials say the emails included relatively “innocuous” conversations by State Department officials about the CIA drone program, which technically is considered a “Special Access Program” because officials are briefed on it only if they have a “need to know.”

As a legal matter, the U.S. government does not acknowledge that the CIA kills militants with drones. The fact that the CIA conducts drone strikes in Pakistan and Yemen, however, has long been known. Senior officials, including Sen. Dianne Feinstein and former CIA Director Leon Panetta, have publicly discussed CIA drones.

In 2009, Feinstein disclosed during a public hearing that the U.S. was flying Predator drones out of a base in Pakistan. Also that year, Panetta called drone strikes in Pakistan “the only game in town in terms of confronting or trying to disrupt the al Qaeda leadership.” Various public web sites continue to keep track of each CIA drone strike.

At issue are a new batch of emails from Clinton's home server that have been flagged as containing classified information in a sworn statement to the inspector general of the intelligence community. The sworn statement came from the CIA, two U.S. officials tell NBC News. [NBCNews.com, 1/20/16]