Clinton Rules of reporting: The e-mail ‘scandal’ that isn’t

When the supposedly “liberal” New York Times engages in the Clinton Rules of reporting, something it did with reckless abandon in The Hunting of the President (Bill Clinton) during the 1990s, it gives the imprimatur of acceptable media standards to the mainstream media to similarly engage in scandal mongering reporting without any substance.

Such is the case with all the media hyperventilating over the so-called Clinton e-mail “scandal” (the first rule of Clinton Rules is that everything is a “scandal”).

Jeffrey Toobin recently explained at The New Yorker that the first thing the public needs to know is that The Government Classifies Everything:

As [Sen. Daniel Patrick] Moynihan explained in his book “Secrecy: The American Experience” and explored during a lifetime in public service, the definition of what constitutes a government secret has never been clear. Classified information is supposed to be defined as material that would damage national security if released. In fact, Moynihan asserted, government bureaucracies use classification rules to protect turf, to avoid embarrassment, to embarrass rivals—in short, for a variety of motives that have little to do with national security. As the senator wrote, “Americans are familiar with the tendency to overregulate in other areas. What is different with secrecy is that the public cannot know the extent or the content of the regulation. Thus, secrecy is the ultimate mode of regulation; the citizen does not even know that he or she is being regulated!”

It’s not only the public who cannot know the extent or content of government secrecy. Realistically, government officials can’t know either—and this is Hillary Clinton’s problem. In investigating only a small portion of her e-mails, government investigators have already flagged more than three hundred that are potentially classified. They will surely find more. As Moynihan noted, government bureaucracies have every incentive to over-classify. It’s the risk-averse approach, and there’s no penalty for erring on the side of caution. Besides, over-classification makes their work seem more important.

In one case, according to media reports, one of Clinton’s potentially classified e-mail exchanges is nothing more than a discussion of a newspaper story about drones. That such a discussion could be classified underlines the absurdity of the current system. But that is the system that exists, and if and when the agencies determine that she sent or received classified information through her private server, Clinton will be accused of mishandling national-security secrets.

The consequences for Clinton, in the midst of a Presidential run, are far more likely to be political than legal.

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In most political controversies about documents, the best response for a politician is simply to disclose them in order to diffuse the issue. But that option is not available to Clinton. The relevant agencies are now reviewing the documents in order to determine whether they contain classified information; if they find that to be the case (and they will), Clinton will not have the right to make those documents public; the public will never know whether she was discussing newspaper stories or the identity of covert assets. With many agencies reviewing thousands of documents, this process is guaranteed to take months rather than weeks. Thus, the process—and the attention to the issue—will drag on.

Hillary Clinton’s predecessor at the State Department, Colin Powell, also used private e-mails to communicate what no doubt also contained occasional references to “classified” information. Colin Powell relied on personal emails while secretary of state:

Like Hillary Clinton, former Secretary of State Colin Powell also used a personal email account during his tenure at the State Department, an aide confirmed in a statement.

“He was not aware of any restrictions nor does he recall being made aware of any over the four years he served at State,” the statement says. “He sent emails to his staff generally via their State Department email addresses. These emails should be on the State Department computers. He might have occasionally used personal email addresses, as he did when emailing to family and friends.”

“He did not take any hard copies of emails with him when he left office and has no record of the emails. They were all unclassified and mostly of a housekeeping nature. He came into office encouraging the use of emails as a way of getting the staff to embrace the new 21st information world.”

“The account he used has been closed for a number of years. In light of new policies published in 2013 and 2014 and a December 2014 letter from the State Department advising us of these polices, we will be working with the department to see if any additional action is required on our part.”

Secretary Clinton’s final day as Secretary of State was February 1, 2013 — before the new email policies were published.

This week, State Department spokesman John Kirby said, “We have said in the past that there was no policy prohibiting the use of a private email account here at the State Department, and that is still a fact.” Clinton Email Scandal Falls Apart As State Dept. Says There Was No Policy Against Private Email:

Now, obviously, we have policies in place now that highly discourage that, and you are supposed to use your government account so that there is a constant, permanent record of it, but at the time she was not violating policy….I can tell you that there was no prohibition for her use of this, and we’ve since changed the policy to discourage that greatly, and in fact, the policy is that you have to use your government account for business.”

Kirby added that he didn’t believe that the policy changed while she was Secretary of State, which means that Hillary Clinton was doing nothing wrong when she used private email.

Also this week, the Associated Press reports, State Department officials routinely sent secrets over email:

The transmission of now-classified information across Hillary Rodham Clinton’s private email is consistent with a State Department culture in which diplomats routinely sent secret material on unsecured email during the past two administrations, according to documents reviewed by The Associated Press.

Clinton’s use of a home server makes her case unique and has become an issue in her front-running campaign for the Democratic presidential nomination. But it’s not clear whether the security breach would have been any less had she used department email. The department only systematically checks email for sensitive or classified material in response to a public records request.

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Clinton insists she didn’t send or receive classified information. But government officials have found material they deem classified in several dozen of 30,000 emails that the former secretary of state has turned over, an unfolding saga that has dogged her 2016 campaign.

Many of the emails to Clinton containing classified information were forwarded to her by a close aide, Huma Abedin. Most, however, originated with diplomats who have access to confidential material. Some emails sent by Clinton have since been censored.

Such slippage of classified information into regular email is “very common, actually,” said Leslie McAdoo, a lawyer who frequently represents government officials and contractors in disputes over security clearances and classified information.

What makes Clinton’s case different is that she exclusively sent and received emails through a home server in lieu of the State Department’s unclassified email system. Neither would have been secure from hackers or foreign intelligence agencies, so it would be equally problematic whether classified information was carried over the government system or a private server, experts say.

In fact, the State Department’s unclassified email system has been penetrated by hackers believed linked to Russian intelligence.

Many of the emails to Clinton came from state.gov email accounts, noted Steven Aftergood, an expert on classification at the Federation of American Scientists. “So if there is routine security screening and monitoring of incoming and outgoing State Department emails, anything that is classified should have been flagged. That does not seem to have happened. I think it’s the State Department culture.”

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In a statement, State Department spokesman Alec Gerlach said it’s not uncommon — across each agency — that when considering information for release, “certain information must later be upgraded even if it had not previously been classified.”

“Classifying information ahead of a release doesn’t necessarily mean information was mishandled, but it certainly does reflect the seriousness with which we take our obligations and the fact that over time, some of the circumstances in which information is being digested can and do change,” Gerlach said.

Clinton, speaking to reporters after an event in Iowa, said: “My use of personal email was allowed by the State Department. It clearly wasn’t the best choice. I should have used two emails, one personal, one for work. And I take responsibility for that decision.”

She added, “I’m confident that this process will prove that I never sent nor received any email that was marked classified.”

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There is no indication that any information in Clinton emails was marked classified at the time it was sent. But critics have said Clinton and her aides should have known not to discuss anything remotely secret over unsecured email. The emails show they were cognizant of security, routinely communicating over secure phone and fax lines.

Clinton also had access to a classified messaging system, but it’s not widely used at the State Department. Most department officials in Washington and at embassies have on their desktops a classified network that goes up to “secret” level. A small number of State officials, including the secretary, can use a third system that goes up to “top secret” level in special secure rooms.

But even the middle-tier “secret” network is cumbersome for many in the agency, said officials who would not be quoted when discussing internal security policies. Only a few top officials in Washington are able to read classified emails outside the department’s headquarters. Most ambassadors can’t open their accounts from home. Officials in the field may have no access at all.

Lots of State Department information is meant for use, sharing and interaction with foreign officials, the vast majority of whom aren’t authorized to receive classified U.S. material.

All of this leads the Washington Post’s David Ignatius to write today, The Hillary Clinton e-mail ‘scandal’ that isn’t:

Does Hillary Clinton have a serious legal problem because she may have transmitted classified information on her private e-mail server? After talking with a half-dozen knowledgeable lawyers, I think this “scandal” is overstated. Using the server was a self-inflicted wound by Clinton, but it’s not something a prosecutor would take to court.

“It’s common” that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who’s now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information.

“There are always these back channels,” Smith explained. “It’s inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.” People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn’t, but they do.

“It’s common knowledge that the classified communications system is impossible and isn’t used,” said one former high-level Justice Department official. Several former prosecutors said flatly that such sloppy, unauthorized practices, although technically violations of law, wouldn’t normally lead to criminal cases.

Clinton’s use of a private e-mail server while she was secretary of state has been a nagging campaign issue for months. Critics have argued that the most serious problem is possible transmission of classified information through that server. Many of her former top aides have sought legal counsel. But experts in national-security law say there may be less here than it might appear.

First, experts say, there’s no legal difference whether Clinton and her aides passed sensitive information using her private server or the official “state.gov” account that many now argue should have been used. Neither system is authorized for transmitting classified information. Second, prosecution of such violations is extremely rare. Lax security procedures are taken seriously, but they’re generally seen as administrative matters.

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Clinton defended herself Aug. 18 with a carefully worded statement: “I did not send classified material, and I did not receive any material that was marked or designated classified.” Those may sound like weasel words, but they actually go to the heart of what might constitute a criminal case.

What happens in the real world of the State Department? Smith takes the hypothetical example of an assistant secretary who receives a classified cable from, say, Paris, about a meeting with the French foreign minister and wants quick guidance from the secretary. So he dashes off an e-mail — rather than sending a classified cable that would be seen by perhaps a dozen people.

“Technically, he has taken classified information and put it onto an unclassified system,” Smith said. “It’s the same as picking up a telephone and talking about it. It’s not right. But the challenge of getting the secretary’s attention — getting guidance when you need it — is an inevitable human, bureaucratic imperative. Is it a crime? Technically, perhaps yes. But it would never be prosecuted.”

Informal back channels existed long before e-mail. One former State Department official recalled the days when most embassies overseas had only a few phones authorized for secret communications. Rather than go to the executive office to make such a call, officers would use their regular phones, bypassing any truly sensitive details. “Did we cross red lines? No doubt. Did it put information at risk? Maybe. But, if you weren’t in Moscow or Beijing, you didn’t worry much,” this former official said.

Back channels are used because the official ones are so encrusted by classification and bureaucracy. State had the “Roger Channel,” named after former official Roger Hilsman, for sending secret messages directly to the secretary. The Joint Chiefs of Staff had a similar private channel. CIA station chiefs could send communications known as “Aardwolves” straight to the director.

Are these channels misused sometimes? Most definitely. Is there a crime here? Almost certainly not.

This is the typical pattern of the Clinton Rules of reporting. The New York Times (or another “gatekeeper” of the mainstream media) will publish an “exclusive” report of information leaked to the paper by Clinton opponents suggesting a “scandal.” The rest of the mainstream media quickly follows suit simply repeating what the Times and the rest of the mainstream media are reporting in a feedback loop.  This then leads to months of wildly speculative reporting and punditry that in the end fizzles out when it is finally learned that there is no “there” there.

The Whitewater controversy and all its attendant sub-“scandals” like travelgate, filegate, and the suicide of Vince Foster, hyped by the New York Times and the conservative media entertainment complex, never resulted in the Clintons being  charged by the special prosecutor. Bill Clinton’s lying about his affair with Monica Lewinsky was the only thing to ever come out of it.

But the real purpose of such scandal mongering reporting is to smear the reputation of the Clinton being attacked and to create distrust in the minds of Americans. With this objective in mind, the truth does not matter as much as the partisan media narrative.

This is how the corporate media has been manipulating Americans for years. It is why our unethical corporate media is such an epic failure.