Justice Department: Secretary Clinton had authority to delete personal emails

The editors of the New York Times, who have long engaged in the Clinton Rules of  “scandal” mongering reporting, somehow missed this highly relevant piece of information to report this week. The Times was more interested in exacting an act of contrition and apology from Hillary Clinton. Hillary Clinton’s Long Road to ‘Sorry’ Over Email Use.

Ruby Cramer at BuzzFeed News reports, Justice Department Lawyers: Clinton Had Authority To Delete Personal Emails:

Hillary-Clinton-textingIn a little noticed brief, filed on Wednesday to a federal court, Department of Justice lawyers outlined a comprehensive defense of the contentious decision by Hillary Clinton to wipe the private email server she used as secretary of state: The attorneys assert that, regardless of whether she used a personal or government account, Clinton was within her legal right to handpick the emails that qualified as federal records — and to delete the ones she deemed personal.

“There is no question that former Secretary Clinton had authority to delete personal emails without agency supervision — she appropriately could have done so even if she were working on a government server,” write the Justice Department attorneys, representing the State Department in the brief.

The lawyers add that under policies issued by the State Department and by NARA, the National Archives and Records Administration, government employees “are permitted and expected to exercise judgment to determine what constitutes a federal record.”

The filing is the latest in a long-running fight between the State Department and the conservative public interest group, Judicial Watch, over public records related to Clinton’s tenure in the administration. The brief this week, as first reported by the Washington Times, concerns Clinton’s personal emails in particular.

Late last year, in response to an administration record-keeping request, Clinton and her attorneys conducted a review of four years’ worth of email from her personal account, which she used to conduct government business as secretary of state. And in December, Clinton sent the State Department copies of emails she identified as work-related. The 31,830 remaining emails, described as strictly personal, were deleted.

In all the complexity of the email controversy — involving a tangle of concerns about server technology, anachronistic record-keeping practices, and the government’s oblique classification system — a more straightforward question has lingered since news of the email account broke in March: Was it a sound decision by Clinton to, without third-party oversight, determine the emails considered work-related, and therefore part of the federal record — and to then delete the rest?

On both counts, the Justice Department lawyers argue in the affirmative.

The attorneys, representing the State Department, filed the brief in response to a proposed “preservation order” by Judicial Watch: essentially a request that the State Department obtain and/or preserve the 31,830 emails not turned over in December “until the court can fully brief and consider relevant questions of law.” The sought preservation order, proposed to the federal court last week, is part of a Judicial Watch Freedom of Information Act case, re-opened this spring following the disclosure of Clinton’s personal email server.

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In the response from the Justice Department, attorneys state that, first and foremost, they cannot comply with the proposed order because there is no legal basis under FOIA law for access to a federal employee’s personal records.

The Justice Department also stated that Clinton had the authority to determine what constituted her own personal and federal records — just as she would have were she working on a government email account.

For those reasons, the Justice Department argued, there is no legal basis for the preservation order.

In the brief, the Justice Department lawyers note that the State Department — as with other government agencies that task employees with managing their own emails — requires individuals to “review each message, identify its value, and either delete it or move it to a record-keeping system,” according to NARA rules.

As such, the attorneys state, “there is no question” that Clinton was legally permitted to delete correspondence she considered personal. Because State Department employees “may delete messages they deem in their own discretion to be personal,” the briefing reads, the Judicial Watch argument “reduces to an unsupported allegation that former Secretary Clinton might have mistakenly or intentionally deleted responsive agency records rather than personal records.”

The administration attorneys’ argument amounts to one of the most definitive government statements that Clinton was not in violation of the law in deciding to sort and delete the emails herself.

[This] case, does not address the classification issues that still command sustained political coverage about Clinton.

But in terms of the email submission itself, the lawyers argue that, without reason to believe that Clinton was not honest and forthcoming in selecting and turning over her federal records, no government agency would be required to “recover deleted material based on unfounded speculation that responsive information had been deleted.” Such was the case with Clinton, the lawyers say.

The Department of Justice also now possesses Clinton’s email server, which she handed over this spring amid an FBI inquiry into the security of the setup. At the time, a report suggested that investigators might attempt to recover some deleted material. Asked to what end the Justice Department remains in possession of the server — and whether the officials have reason to believe that responsive information had been been deleted — a spokesman declined to comment.

Judicial Watch has since replied to the Department of Justice brief. The court has yet to rule on the order.

As for the government’s over classification  of government records, Lauren Williams  at Think Progress reports, The Issue Everyone Is Missing In The Clinton Email Scandal:

Hillary Clinton’s presidential campaign is taking water thanks to a perseverant email scandal in which she received, and may have responded to, emails containing top secret information. But while there are legitimate cybersecurity and legal public records concerns regarding Clinton’s private email server, there’s little mention of the real issue — an ambiguously complicated and overused government classification system.

“Many of the critiques [of Clinton] show a total ignorance of how document classification works,” said Peter Swire, a law and ethics professor at Georgia Tech who was on the White House’s NSA review panel in 2014. “It is irrelevant if a piece of information is classified somewhere in government. What is relevant, is whether the recipient knew or should have known it was classified…I’m not aware of any statement that she received an email on her [personal and unclassified email server] that was marked classified.”

The Justice Department’s investigation of Clinton’s private server revealed that 125 emails were retroactively classified by the State Department, at least two of which were labeled top secret. But there’s more to the story: How communications become classified is a messy process full of obstacles and room for error.

“We live in a world where intelligence comes from many different sources, and one agency treats a piece of news as classified and another treats it as unclassified,” Swire said. “It’s possible for something to be classified in one area of government and that classification status be unknown to everyone else. The problem of whether [Clinton’s email contents] would have been classified information would have been the same if it were on [the State Department’s server].”

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To become classified, an item must either be ordained as such by an original classification authority or fall under a designated topic area outlined by the president’s or specific agency’s guidelines. In 2014, there were 2,276 government officials — including the president, senior agency administrators, and those with top secret security clearances — who had the power to classify information, according to the latest report from the Information Security Oversight Office (ISOO), which chronicles the government’s classified materials. Those officials made 46,800 original classification decisions to classify information, 11 percent of which were considered top secret, ISOO found.

There are two types of classification: original and derivative. The former is decided by one of the nearly 2,300 authoritative officials who deem the release of such information potentially detrimental to national security; whereas derivative classification involves some form regurgitation of previously classified information. Derivative classification is most common, and officials decided 77.5 million times that communicated information was a paraphrase or repackaging of the already classified information, according to the ISOO.

“Unfortunately, it is not a science. It’s guesswork,” Goitein said. Assuming the information Clinton received wasn’t marked classified, there isn’t “enough info publicly anyway to deduce her culpability.”

As secretary of state, Clinton had the highest authority to classify information the State Department produced. Other agency heads have that same authority and any information sent to Clinton from another agency, such as the CIA, had to be treated according to its marking accessed only from a dedicated secure computer system for classified materials. That process isn’t foolproof, however, and there are instances where information can be retroactively classified or marked classified by another agency without notice.

Knowingly mishandling classified information does have criminal repercussions. Former CIA directors General David Petraeus and John Deutch were caught with unsecured classified documents. Petraeus was charged for mishandling classified materials — keeping documents with code and operatives’ names in an unlocked drawer — but plead down to a misdemeanor and was fined $100,000. Deutch, who was the CIA director under then President Bill Clinton, was pardoned after classified documents were found on his home computer.

“This whole thing reveals more about our classification system and how poorly it works than anything,” Goitein said. The classification system leans toward secrecy when “most information that’s classified shouldn’t be, and can be safely released. If you’re alive in this world and don’t know the CIA is conducting drone strikes in Pakistan, Clinton’s emails are not going to wake you.”

The vast majority of classified material comes from the military, Defense Department (DOD) and the intelligence community, and despite recent transparency efforts, much of it stays classified. The government declassified 43 percent of the 64.6 million pages of classified information up for review. The State Department declassified 80 percent of the documents up for review, compared to the DOD’s 24 percent.

“It should be hard to classify information, there should be obstacles involving in the handling of classified information to keep it safe. But when everything becomes classified, it’s an unworkable system. And the danger is always that the really sensitive stuff is going to get caught up in this problem,” Goitein said.

Each agency has its own guidelines and its own authority to classify, or declassify, information that it independently uncovers. But that decision isn’t always communicated across the executive branch.

The classification system is not rooted in law or statute. It is an administrative tool that stems from presidential authority,” said Steven Aftergood, director of the Federation of American Scientists government secrecy project. “There is an executive order [EO 13526] that lays out how the president intends for it to be used. He has also delegated authority to classify and declassify certain materials.”

Clinton’s email scandal is tough to call because it’s unclear from publicly available information whether the classified information originated in the State Department or is a classification disagreement between two agencies.

* * *

“In internal communications, people will often transmit things they have absorbed semi-consciously and may not realize that it was classified or communicated to the recipient that it was classified,” Aftergood said. “Sometimes people make mistakes, which should be remedied to some extent when the information is being rendered for public disclosure.”

In Clinton’s case, the State Department may have marked an email as classified before sending it to the Justice Department for review because that information would likely become public due to her political aspirations.

“When the question of public disclosure arises, then the agency may retroactively mark it. That procedure is common enough that it is explicitly described in the president’s executive order,” much like an agency preparing a Freedom of Information Act (FOIA) request, he said. “There’s a lot of subjectivity.”

That subjectivity comes at a steep cost. Government culture dictates that most high-level communications be classified. But such liberal guidelines breed wasteful inefficiency, wasteful spending, and real security threats.

The government spent an estimated $15 billion in classification-related costs in 2014, more than half of which ($7.6 billion) was for the protection and maintenance of classified communication systems — a 72 percent increase from 2013. Intelligence agencies spent $1.9 billion, the ISOO reported.

“Agencies left to their own devices are almost always going to classify too much,” Aftergood said. “Almost everybody including the Director of National Intelligence and President Barack Obama have acknowledged that overclassification is a problem; that information is held at too high a level for too long.”

In 2010, Obama signed the Reducing Overclassification Act, which aimed to limit the status to true national security matters and also foster transparency.

In its 2014 report, the ISOO applauded agencies’ improved declassification efforts but found some trouble spots — particularly when it came to training. Several unnamed agencies failed to meet security education and training requirements set forth in the executive order governing classification protocol, the report stated. Some provided no training or insufficient training to credentialed individuals.

“[Clinton] is getting hammered for allegedly including classified information in her emails,” Aftergood said. “The criticism is that she should have held the information more restrictively, that it’s better to air on the side of greater secrecy. But the system is getting backlogged with more information than it can protect. It’s bad security policy. It means there’s a lot of innocuous info that’s being classified…The idea that a good part of [the government’s budget] is being spent unnecessarily is discouraging.”

Clinton’s email woes are partly status quo and also raise security questions. But the answers to those questions could mean the difference between a political blemish and actual national security concerns.

Aftergood asked, “Specifically, has any foreign government complained the confidentiality of their communications was improperly breached by Clinton? Is there a shred of evidence that national security was damaged by the way these emails were transmitted or stored? If not, this is a speculative exercise that is not very interesting or important. It’s politically important, but as a matter of security policy, it’s close to a non-issue.”


UPDATE:
Did readers of the New York Times shame the editors into reporting this story this weekend? We may never know. Justice Dept. Says Hillary Clinton Had Authority to Delete Certain Emails.

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