In his statement to the press today (here), FBI Director James Comey laid out what he described as the background of the FBI efforts associated with their investigation of the emails on and security for the email server maintained by and for Bill and Hillary Clinton, primarily while she served as Secretary of State. As background, it seems that Clinton wanted to be able to use a Blackberry as her primary means of communications – for voice and email – and both the Department of State and the National Security Agency were against this, specifically on the basis of information security grounds. For reasons of personal convenience, the Clintons originally has a longtime aide (who had no background in computer, email servers, or information security, or safeguarding classified information) establish the email server in their basement in New York, before later asking asking Clinton’s for campaign IT Director, Bryan Pagliano (who also lacked such qualifications) to take over maintaining the email server.
It wasn’t until March, 2009 before the server gained a digital certificate and could do basic encryption. Having unqualified personnel set, configure, maintain and operate you email server is like having a lifelong celibate priest give you birth control advice paired with keeping your sex life spicy in the bedroom.
From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.
That’s huge. The information in the emails were classified at the time the emails were sent.
And that’s also huge, in that it’s Top Secret material. That doesn’t happen by accident.
Colin Powell has recently been in the news, saying that the up-classifying of documents – such as when he had been exchanging emails via he internet with foreign diplomats – seemed stupid and pointless. That type of a classified document falls squarely into that giant block of 2000 document, and is probably on par with something every diplomat faces.
But look at the other ones. 8 Confidential chains that were confidential at the time they were written – not determined to be so afterwards. 36 chains that were secret at the time. And 8 email chains that were Top Secret at the time they were written.
For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).
How does this happen? How does a reasonable person write an email or respond to an email involving Top Secret / Special Access Program information on their Blackberry? That’s easy – they’re lazy. They’re cutting corners. They don’t want to go all the way into the office, to open up a vault and have to log into the special computer systems and to have to go through the even more special (and absolutely needed) security measures, in order to follow the required security measures to access and write an email about something involving Top Secret / Special Access Program, so they instead just do it on their Blackberry.
I say this with great confidence, because as James Comey, the Director of the FBI himself said, Hillary Clinton “should have known that an unclassified system was no place for that conversation.”
And here’s something else, which is actually two very critical points squished together:
Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
The first point is that, yes, some of the emails that Hillary and her staff were sending were in fact marked with the proper classification markings – on a system that was specifically designate for unclassified information. Doing so meant that they were knowingly, and deliberately, transmitting classified information on an unclassified system.
Knowingly and deliberately. Up to and potentially including Top Secret / Special Access Program information. And even taking the time to mark the emails.
This, after Hillary had been saying for months and months that the information had not been classified at the time it had been sent. Whoops. Maybe she just didn’t realize it.
But the second half of that statement is as important: But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it. Whether the marking is omitted by accident or on purpose, participants – senders and receivers – are obligated to protect the information. “Well, it wasn’t marked” isn’t a valid argument, says none other than FBI Director James Comey.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
But what’s interesting is that, in a very similar case, Bryan H. Nishimura was charged with and pled guilty to charges related to the unauthorized removal and retention of classified materials, just a year ago. (link to FBI page)
Bryan H. Nishimura, 50, of Folsom, pleaded guilty today to unauthorized removal and retention of classified materials, United States Attorney Benjamin B. Wagner announced. U.S. Magistrate Judge Kendall J. Newman immediately sentenced Nishimura to two years of probation, a $7,500 fine, and forfeiture of personal media containing classified materials… Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. He carried such classified materials on his unauthorized media when he traveled off-base in Afghanistan and, ultimately, carried those materials back to the United States at the end of his deployment. In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system… Despite that, when the Federal Bureau of Investigation searched Nishimura’s home in May 2012, agents recovered numerous classified materials in digital and hard copy forms. The investigation did not reveal evidence that Nishimura intended to distribute classified information to unauthorized personnel. This case was the product of an investigation by the Naval Criminal Investigative Service (NCIS) and the Federal Bureau of Investigation. Assistant United States Attorney Jean M. Hobler prosecuted the case.