Not really. The FBI report stated that in the 30,000 e-mails that the agency reviewed, agents found three that included internal markings of (C), two of which had been subsequently changed to unclassified. In response to questions before the House Oversight Committee on July 7, 2016, however, Comey conceded that the documents were not properly marked and that a reader could reasonably assume that they were not classified.
“[Rep. Matt] Cartwright: So, if Secretary Clinton really were an expert at what’s classified and what’s not classified and we’re following the manual, the absence of a header would tell her immediately that those three documents were not classified. Am I correct in that?
“Comey: That would be a reasonable inference.”
What are we talking about here? Properly marked documents list at the beginning the full range of classification markings that apply to that document. (See the Able Archer report.) The complete list of markings is then repeated at the top and bottom of every subsequent page. In addition, every head, every subhead, and every paragraph is marked at the beginning according to the degree of classification of the information in that particular head, subhead, or paragraph. Many of these internal markings may be at a lower level of classification than the overall document, but none will be higher or the whole document would have been reclassified at a higher level. The three e-mails that Comey was talking about had one or more paragraphs that began with a (C) but were otherwise unmarked. This is simply not an option. Something or other had to be wrong with the marking of those e-mails.
John Kirby, the State Department spokesperson, stated on July 6 that the department had found two of those e-mails and that they were “call sheets.” (Comey said on July 7 that he was not aware of Kirby’s remarks.) Call sheets are talking points developed for the use of the secretary for phone calls made to foreign leaders. In this case, the foreign dignitaries were former UN secretary-general Kofi Annan, who was stepping down as the special envoy for Syria at the time, and Joyce Banda, who as vice president of Malawi had just succeeded to the presidency following the death of the incumbent.
When they are developed, call sheets are classified at the Confidential level simply to prevent any word of them from getting out and thus to avoid any embarrassment to the foreign dignitary if the secretary should decide for any reason not to make the call. Once the final decision to call is made, unless the topic requires otherwise, the call sheets are recategorized as Unclassified or SBU. In these cases Kirby blamed human error. Apparently, someone was slipshod in changing all the internal markings. Politico has provided an example of one of the “classified” lines from the call sheets: “(C) Purpose of Call: To offer condolences on the passing of President Mutharika and congratulate President Banda on her recent swearing in.”
The FBI report referred to a third e-mail that had not been reclassified by the State Department. Since the State Department has claimed to be aware of only two, it is still possible that the third should have been unclassified as well. Again, internal markings without overall markings is not an option.
If Clinton was not sending or receiving classified documents, what is the issue? The problem concerns the discussion of classified subjects via unclassified e-mail systems.
Some observers have described this case as a conflict between State Department professionals and Clinton amateurs. I think it is more accurate to understand the underlying dynamic as a conflict between State Department security professionals and State Department diplomacy professionals. Clinton and her immediate team sided with the diplomacy professionals either consciously (assuming they were aware of the conflict) or as a consequence of diplomacy, not security, being the essence of what the State Department does.
The charges made by Comey were not strictly limited to Clinton (although she was the target of investigation) but addressed a State Department “culture.” Comey is often quoted as saying that Clinton was “extremely careless” in the handling of very sensitive, highly classified information. Actually, the quote, referring to “Clinton and her colleagues,” was that “they” were extremely careless. Later in his statement Comey expanded this charge beyond Clinton’s immediate circle: “While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with regard to use of unclassified email systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.”
The FBI report added some details: “The FBI interviewed multiple officials who authored and/or contributed to e-mails, the content of which has since been determined to contain classified information. USG [i.e., United States Government] employees responsible for initiating classified e-mails in question included State Civil Service employees, Foreign Service employees, Senior Executive Service employees, Presidential appointees, and non-State elected officials.” In fact, Comey is not the first to have remarked on the State Department’s approach to information security.
It is easy to ascribe laxness to an organizational culture, but that begs the question of what is driving this culture. Suzanne Nossel, a former State Department official—writing a year before the release of the FBI report—has attributed at least part of the blame to the nature of the State Department’s communications technology and, specifically, to the mismatch between that technology and the evolving nature of diplomacy in the modern era. Diplomacy today is mobile, continuous, and at times time-urgent. The technology, on the other hand, is stationary and only intermittently available.
In its paper form, highly classified intelligence is kept locked up and can be viewed only in specially designated areas, such as a Sensitive Compartmentalized Information Facility (SCIF). (The secretary of state’s office is a designated SCIF.) In its electronic form, such intelligence can be viewed or communicated at your desk via a special, secure computer network or via a special, secure telephone line. Most significantly, there is no approved way to communicate on classified topics if either the sender or the recipient is not at his desk, or if it is not during business hours.
So, then, what do diplomats do in such circumstances if a message has to be delivered or a decision has to be made immediately? According to Nossel, one response is that more information is now categorized as “sensitive but unclassified” (a counter to the general trend of overclassification) and, ipso facto, can be transmitted over unclassified systems. When time is of the essence and Top Secret topics cannot be avoided, however, State Department officials communicate on unclassified systems but try do so circuitously, that is, in ways that will be unintelligible to anyone who hacks into the system from outside and is unaware of the context of the conversation.
References to this very problem appeared in the FBI report. For example, “[Name deleted] stated the right method of communication was whichever method allowed for the fastest possible dissemination of the message. He also stated that information he received from other USG agencies was ‘technically probably classified’ but that ‘you can’t do business that way.’ When interviewed by the FBI, authors of the e-mails stated that they used their best judgment in drafting the messages and that it was common practice at State to carefully word e-mails on UNCLASSIFIED networks so as to avoid sensitive details or ‘talk around’ [deleted] classified information.”
Clinton, herself, described this situation to the FBI in much the same way. “Upon reviewing an e-mail classified [after the fact] SECRET//NOFORN dated December 27, 2011, Clinton stated no policy or practice existed related to communicating around holidays, and that it was often necessary to communicate in code or do the best you could to convey the information considering the e-mail system you were using.”
Evidently, Clinton engaged in this sort of discussion of Top Secret topics eight times in the course of her four years at State. Until the e-mails are declassified, which could be decades from now, we will not know how well or poorly she and other State Department officials concealed the true subjects of their messages. Should diplomats be discussing Top Secret topics in this manner? No, probably not. Will this sort of thing continue? Yes, without a doubt, until the technology (and State’s technology budget) advances to the point where it meshes with the needs of modern diplomacy.
Finally, many have asserted that people other than Clinton, such as General David Petraeus, have been punished “for doing far less,” that she is receiving special treatment because of who she is. In fact, this was never likely to end in prosecution. The first point to highlight is that—as noted above from the FBI report—every category of official in the State Department has done exactly the same thing at some time or other, and some quite regularly. Those officials are not being purged from the system, nor do they concede that they have done anything wrong. Indeed, they believe that they are the ones who make the system work despite itself. If Clinton has received special treatment, it is in the form of extraordinary scrutiny and public denunciation that others in similar circumstances have been spared. As Comey told the Senate Homeland Security Committee, “I think if we recommended prosecution it would have been a two-tiered system of justice.”
Generally speaking, officials are punished for knowingly giving classified information to those who have not been authorized to receive it or for mishandling massive amounts of classified information. According to court records, Petraeus gave Paula Broadwell, his biographer—whose job, after all, was to make details of his life public—notebooks that contained “classified information regarding the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings… and discussions with the president of the United States.” According to a recording made by Broadwell, he openly said of the notebooks, “Umm, well, they’re really—I mean they are highly classified, some of them. They don’t have it [marked] on it, but I mean there’s code word stuff in there.” In Petraeus’s case, the attorney general opted to charge him with a misdemeanor, but the FBI had recommended a felony charge.
In the Clinton case, Comey, in his public statement, said: “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.” Comey reaffirmed this conclusion in his later memo to FBI employees. “At the end of the day, the case itself was not a cliff-hanger; despite all the chest-beating by people no longer in government, there really wasn’t a prosecutable case.”
Attorney General Loretta Lynch stated that she met with Comey, career prosecutors, and the agents who conducted the investigation. It was “their unanimous recommendation,” not Comey’s alone, that the investigation be closed and that no charges be brought against any individual within the scope of the investigation.