The Real Clinton Email Scandal
There are many pressing national security issues the presidential candidates should discuss in their debate on Sunday. As someone who has spent years studying the classification system, I don't believe Hillary Clinton's use of a private email server is one of them. Here's why.
In a properly functioning classification system, officials would classify information only if its disclosure would likely harm national security. Not one insider or expert, however, believes the classification system works as it should. Republicans and Democrats seem unable to agree on what day of the week it is, but they agree that far too much information is classified. Former national security officials estimate that 50 to 90 percent of classified documents could safely be released.
The reasons are clear. The 2,000-plus officials designated as "original classification authorities" have near total discretion to classify information – and ample incentive to overreach. The culture within intelligence agencies encourages and nurtures secrecy, and classifying by rote saves considerable time. Most officials see little downside. As a former FBI agent put it, "no one ever got in trouble for overclassifying."
Even when information is appropriately classified, its status does not announce itself. A prediction of national security harm is a highly subjective judgment call. Different agencies can, and frequently do, disagree. Accordingly, once an official decides to classify information, it must be marked and listed in agencies' "classification guides" (indexes of classification decisions) to make others aware of its status.
Here, too, the system is broken. Audits show widespread disregard of marking requirements, and classification guides are often outdated. Moreover, with more than 1 million new secrets created this past decade, guides are too numerous and bulky – there are thousands, some hundreds of pages long – to expect their audience to master them. The system sets it users up for failure.
Now let's turn to Clinton. After months of review, the FBI found that 110 out of 30,000 emails contained information that someone had classified but that was not marked. Clinton's critics say she should have known the information was classified. How? People who handle classified information are no better at reading minds than the rest of us. Yes, if an email includes nuclear codes, one should assume that information is classified. If it recites the local weather forecast, that can safely be considered unclassified. Most classified information exists in a gray area between those extremes.
FBI Director James Comey gravely informed Congress that information in eight email chains was classified at the highest level: "Top Secret." But at least some of this information consisted of references to the CIA's drone strike program – a program well-known to anyone with access to a newspaper, a television or the internet. The fact that emails alluding to it are considered "Top Secret" is an indictment of the classification system, not of Clinton.
The FBI also found that three emails included the symbol "(C)," denoting the classification level "confidential," in certain paragraphs, although not the prominent announcement that should appear at the top of the email, or any of the other required indicators. This contradicted Clinton's claims that she never received emails bearing classification markings. Did she lie? Or is it possible that a busy official might miss something that appeared in one hundredth of 1 percent of her emails?
Some argue that the FBI's decision not to prosecute Clinton reflects a double standard. The Obama administration has indeed prosecuted multiple low-level officials for mishandling classified information after they disclosed information that embarrassed the government. Preferential treatment is the norm, however, for high-level officials who carelessly mishandle or strategically leak classified information, including Richard Armitage, Alberto Gonzales, Leon Panetta and John Brennan. David Petraeus' slap on the wrist was the rare exception.
There are, to be sure, valid criticisms and concerns surrounding Clinton's email practices. Her use of a private server went against agency guidelines, and made it more difficult for members of the public to obtain information under the Freedom of Information Act. These are not trivial matters. But they are not matters of national security, either.
Dysfunctional as it is, the classification system is sacrosanct to some officials, who believe strict compliance is the only alternative to a dangerous free-for-all. Others respond that the bloated and burdensome system forces officials to cut corners in order to do their jobs. The dilemma they face is real. The fiction that all classified information is clearly sensitive gets in the way of solutions by denying the problem.
That fiction is also distracting us from the national security issues we should be discussing. We owe it to ourselves to move on. Otherwise, we may come to regret the months spent pressing Clinton to justify her email practices instead of pressing the candidates for more details on their plans to defeat the Islamic State group.
In a properly functioning classification system, officials would classify information only if its disclosure would likely harm national security. Not one insider or expert, however, believes the classification system works as it should. Republicans and Democrats seem unable to agree on what day of the week it is, but they agree that far too much information is classified. Former national security officials estimate that 50 to 90 percent of classified documents could safely be released.
The reasons are clear. The 2,000-plus officials designated as "original classification authorities" have near total discretion to classify information – and ample incentive to overreach. The culture within intelligence agencies encourages and nurtures secrecy, and classifying by rote saves considerable time. Most officials see little downside. As a former FBI agent put it, "no one ever got in trouble for overclassifying."
Even when information is appropriately classified, its status does not announce itself. A prediction of national security harm is a highly subjective judgment call. Different agencies can, and frequently do, disagree. Accordingly, once an official decides to classify information, it must be marked and listed in agencies' "classification guides" (indexes of classification decisions) to make others aware of its status.
Here, too, the system is broken. Audits show widespread disregard of marking requirements, and classification guides are often outdated. Moreover, with more than 1 million new secrets created this past decade, guides are too numerous and bulky – there are thousands, some hundreds of pages long – to expect their audience to master them. The system sets it users up for failure.
Now let's turn to Clinton. After months of review, the FBI found that 110 out of 30,000 emails contained information that someone had classified but that was not marked. Clinton's critics say she should have known the information was classified. How? People who handle classified information are no better at reading minds than the rest of us. Yes, if an email includes nuclear codes, one should assume that information is classified. If it recites the local weather forecast, that can safely be considered unclassified. Most classified information exists in a gray area between those extremes.
FBI Director James Comey gravely informed Congress that information in eight email chains was classified at the highest level: "Top Secret." But at least some of this information consisted of references to the CIA's drone strike program – a program well-known to anyone with access to a newspaper, a television or the internet. The fact that emails alluding to it are considered "Top Secret" is an indictment of the classification system, not of Clinton.
The FBI also found that three emails included the symbol "(C)," denoting the classification level "confidential," in certain paragraphs, although not the prominent announcement that should appear at the top of the email, or any of the other required indicators. This contradicted Clinton's claims that she never received emails bearing classification markings. Did she lie? Or is it possible that a busy official might miss something that appeared in one hundredth of 1 percent of her emails?
Some argue that the FBI's decision not to prosecute Clinton reflects a double standard. The Obama administration has indeed prosecuted multiple low-level officials for mishandling classified information after they disclosed information that embarrassed the government. Preferential treatment is the norm, however, for high-level officials who carelessly mishandle or strategically leak classified information, including Richard Armitage, Alberto Gonzales, Leon Panetta and John Brennan. David Petraeus' slap on the wrist was the rare exception.
There are, to be sure, valid criticisms and concerns surrounding Clinton's email practices. Her use of a private server went against agency guidelines, and made it more difficult for members of the public to obtain information under the Freedom of Information Act. These are not trivial matters. But they are not matters of national security, either.
Dysfunctional as it is, the classification system is sacrosanct to some officials, who believe strict compliance is the only alternative to a dangerous free-for-all. Others respond that the bloated and burdensome system forces officials to cut corners in order to do their jobs. The dilemma they face is real. The fiction that all classified information is clearly sensitive gets in the way of solutions by denying the problem.
That fiction is also distracting us from the national security issues we should be discussing. We owe it to ourselves to move on. Otherwise, we may come to regret the months spent pressing Clinton to justify her email practices instead of pressing the candidates for more details on their plans to defeat the Islamic State group.
usnews.com
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