Subject: **Washington Post Opinion: Five Myths About Classified Emails**
From: Adrienne Elrod <[email-masked]>
To: Adrienne Elrod <[email-masked]>
Cc: Alexandria Phillips <[email-masked]>
Date: Fri, 18 Sep 2015 17:10:02 -0400
List-Id: <toptalkers.hillaryclinton.com>

Friends –

Wanted to flag for you the below opinion piece from today’s Washington Post
that provides an analysis on the classified email process, written by the
Brennan Center's Elizabeth Goitein.

Also this Sunday, tune in to watch Hillary Clinton's interview with John
Dickerson on CBS's Face the Nation! The interview will air at 10:30am EST.

Thanks and have a great weekend!

- Adrienne

*Five Myths About Classified EmailsThe Washington Post (Opinion)*

https://www.washingtonpost.com/opinions/five-myths-about-classified-information/2015/09/18/a164c1a4-5d72-11e5-b38e-06883aacba64_story.html

The controversy over Hillary Clinton’s use of a private e-mail account
while she was secretary of state has centered on whether she used it to
send or receive classified messages. This focus obscures the larger
question of whether Clinton’s setup affected the State Department’s
compliance
<http://www.politifact.com/truth-o-meter/article/2015/mar/12/hillary-clintons-email-did-she-follow-all-rules/>
with
the Freedom of Information Act and legal requirements for federal agencies
to retain records, as well as myriad other questions about agencies’
information-management practices. Moreover, much of the commentary has been
more confusing than illuminating, because it fundamentally misunderstands
how the classification system works. When a handful of prevalent myths are
corrected, it becomes clear that this aspect of the story reveals more
about our nation’s dysfunctional system
<http://www.brennancenter.org/analysis/overclassification-and-national-security-whistleblowing>
for
managing official secrets than it does about Clinton.

*1. Information can be “classified,” even if no one has classified it.*

Elizabeth Goitein is co-director of the liberty and national security
program at the Brennan Center for Justice at New York University School of
Law.

Many news reports
<http://www.reuters.com/article/2015/08/21/us-usa-election-clinton-emails-idUSKCN0QQ0BW20150821>
 and commentators
<http://www.nationalreview.com/corner/423362/clinton-emails-were-born-classified-andrew-c-mccarthy>
have
suggested that “information is classified by [its] nature” (as Sean Davis
writes
<http://thefederalist.com/2015/09/01/breaking-hillary-intentionally-originated-and-distributed-highly-classified-information/>
in
the Federalist), even if no agency or official has classified it yet. These
accounts treat “classified” as a quality rather than an action — one that
is inherent, immutable and self-evident. If information is sensitive
enough, it’s classified, no matter what.

When it comes to “original classification” — the initial decision to
classify information — that portrayal is simply wrong. Under the executive
order
<https://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information>
that
governs classification, the 2,000-plus officials who have this authority
“may” classify information if its disclosure reasonably could be expected
to damage national security. The determination of harm is often highly
subjective, and even if an official decides that disclosure would be
harmful, he or she is not required to classify.

Information provided by foreign governments in confidence is different. The
executive order cautions that the release of such information is “presumed”
to harm national security; agency rules
<http://www.gpo.gov/fdsys/pkg/CFR-2010-title32-vol6/pdf/CFR-2010-title32-vol6-part2001.pdf>
provide
that such information “must be classified.” There is a difference, however,
between “must be classified” and “is classified.” After all, when an
official receives information, its source and the circumstances of its
disclosure may not be apparent. This category of information is not
self-identifying, let alone self-classifying.

An official who transmits that information without classifying it has
violated agency rules. But the recipient now possesses information that
someone else should have classified — not classified information. (Of
course, classifying the information, then sending it through unclassified
channels to a private e-mail account also would be impermissible. E-mails
released by the State Department show that some of Clinton’s correspondents
dealt with this byasking
<http://www.reuters.com/article/2015/09/02/us-usa-election-clinton-idUSKCN0R22C120150902>
to
set up conversations over secure telephone lines.)

*2. It’s easy to figure out whether information has been classified.*

There is a common refrain
<http://www.reuters.com/article/2015/08/21/us-usa-election-clinton-emails-idUSKCN0QQ0BW20150821>
that
Clinton “should have known” there was classified information in e-mails she
got, even if it wasn’t marked. As commentator Andrew McCarthy put it
<http://www.nationalreview.com/corner/423362/clinton-emails-were-born-classified-andrew-c-mccarthy>,
“Classified information . . . is well known to national security officials
to be classified — regardless of whether it is marked as such or even
written down.”

The classification rules treat this myth as if it were true. Once
information has been classified by an authorized official, anyone who
retransmits it must mark it as classified, even if it was not marked when
received. This is called “derivative classification,” and it can be
performed by any of the 4.5 million individuals
<http://fas.org/sgp/othergov/intel/clear-2014.pdf> who are eligible to
access classified information. They rely on “classification guides” — a
kind of index of original classification decisions, mostly kept on secure
Web sites — to determine what information has been classified and therefore
must be marked.

Derivative classification is intended to be a straightforward, ministerial
task. But the system breaks down in practice. The categories of information
listed in guides are sometimes so broad or vague
<https://www.fas.org/sgp/othergov/dos-class.pdf> that they leave officials
to guess whether any given piece of information has been classified. In
2009, President Obama ordered
<https://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information>
agencies
to review their guides and purge outdated material, but his directive did
not address the lack of specificity.

And while the number of original classification decisions is on the wane,
there were still almost 50,000 new secrets
<http://www.archives.gov/isoo/reports/2014-annual-report.pdf> created last
year — on top of the 2 million created in the 10 previous years. It is
virtually impossible to distill this sprawling universe of classified
information into usable guidance. There are more than 2,000 federal
classification guides, some of them hundreds of pages long. To expect every
official to be thoroughly familiar with all the relevant guidance and apply
it without error is simply unrealistic.

*3. Anything classified is sensitive.*

Many discussions of Clinton’s e-mail assume that all classified information
deserves to be classified, often using the terms
<http://www.cnn.com/2015/07/25/politics/clinton-confident-never-sent-classified-emails/>
“classified”
and “sensitive” interchangeably. The same assumption underlies frequent blanket
statements
<http://www.examiner.com/article/pentagon-issues-new-stricter-rules-for-unauthorized-disclosure-of-information>by
officials that “unauthorized disclosure of classified information
jeopardizes national security.”

In fact, the classification system is marked by discretion (intended) on
the front end and uncertainty (unintended) on the back end. This lack of
clear boundaries opens the door to a huge amount of unnecessary
classification.

There are multiple incentives
<http://www.brennancenter.org/publication/reducing-overclassification-through-accountability>,
unrelated to national security, to classify. It is easier and safer for
busy officials to classify by rote rather than to pause for thought.
Classification is a way for officials to enhance their status or protect
agencies’ turf. It can hide embarrassing facts or evidence of misconduct.
There are no countervailing disincentives, as classification decisions
normally go unreviewed, and agencies do not punish overclassifying. The
result is massive overclassification, a phenomenon noted by experts and
blue ribbon commissions for decades. Current and former government
officials have estimated that 50 to 90 percent
<http://nsarchive.gwu.edu/news/20101216/Blanton101216.pdf> of classified
documents could safely be released.

One need look no further than Clinton’s own e-mails for evidence of this
problem. In February 2010, Clinton’s top foreign policy adviser e-mailed
<https://www.washingtonpost.com/world/national-security/new-batch-of-clinton-e-mails-due-monday-minus-150-deemed-classified/2015/08/31/dcbdcbbc-501e-11e5-8c19-0b6825aa4a3a_story.html>
that
he was unable to send her a statement by former British prime minister Tony
Blair because someone had entered it into the State Department’s classified
system, “for reasons that elude me.” Clinton responded incredulously: “It’s
a public statement!” Yet her adviser was unable to access it, let alone
send it to an unsecured e-mail address. Clinton also has come under fire
for e-mails
<http://bigstory.ap.org/article/b54a250a40e9410baaaca5f9fb58ea94/ap-exclusive-top-secret-clinton-emails-include-drone-talk>that
referenced the CIA’s “top secret” drone strikes in Pakistan — a program
well known to our friends and enemies around the world.

*4. Any mishandling of classified information is illegal.*

Some 2016 presidential candidates have not hesitated to label
<http://www.newsweek.com/hillary-clinton-email-private-server-top-secret-362822>
the
mishandling of classified information as criminal, with former Arkansas
governor Mike Huckabee calling
<http://www.nydailynews.com/news/politics/gop-blasts-clinton-turns-personal-server-article-1.2323261>Clinton’s
actions “beyond outrageously illegal.” Even a New York Times article stated
flatly
<http://www.nytimes.com/2015/07/25/us/politics/hillary-clinton-email-classified-information-inspector-general-intelligence-community.html>,
“Mishandling classified information is a crime.”

In fact, in a nod to the complexities of handling classified information,
the law criminalizes only violations that are “knowing
<https://www.law.cornell.edu/uscode/text/18/1924>,” “negligent
<https://www.law.cornell.edu/uscode/text/18/793>” or the like. The law
falls short, however, in failing to give express protection to knowing
releases of classified information by whistleblowers. The Obama
administration has used the Espionage Act
<https://www.propublica.org/special/sealing-loose-lips-charting-obamas-crackdown-on-national-security-leaks>
—
a statute meant for spies and traitors — to prosecute federal employees
<http://www.pbs.org/newshour/spc/multimedia/espionage/> who revealed waste,
fraud and abuse. Judges allowed these cases to go forward even though none
of the defendants harmed or intended to harm national security.

The lack of protection for whistleblowers allows the government to graft
its own “intent” requirement onto the law through selective prosecution
<http://blogs.reuters.com/jackshafer/2013/06/11/edward-snowden-and-the-selective-targeting-of-leaks/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+reuters%2Fblogs%2FJackShafer+%28Jack+Shafer%29>.
Those who seek to reveal government misconduct are prosecuted. Those who
don’t — including high-level officials who have acted carelessly
<http://www.reuters.com/article/2013/12/17/idUSnMKW4GtYXa+1d6+MKW20131217>,
as well as those given tacit approval for leaks that cast the
administration in a positive light — are not (or, in the unusual case of
Gen. David Petraeus, are given a deal
<https://www.washingtonpost.com/world/national-security/petraeus-set-to-plead-guilty-to-mishandling-classified-materials/2015/04/22/3e6dbf20-e8f5-11e4-aae1-d642717d8afa_story.html>
to
avoid jail time).

This double standard has rightly been criticized
<http://www.truth-out.org/news/item/29698-a-double-standard-on-leaks-as-whistleblowers-jailed-petraeus-escapes-prison-a%20nd-advises-white-house>.
It should be eliminated, not by prosecuting every slip, but by focusing on
actions that are intended and likely to harm national security — and by
protecting disclosures that serve the public interest by revealing
wrongdoing.

*5. Our classification system protects us from harm.*

This myth flows naturally from the assumptions that all classified
information is automatically and self-evidently sensitive and that any
release of classified information would compromise national security. “On
hundreds of occasions, Hillary Clinton’s reckless attempt to skirt
transparency laws put sensitive information and our national security at
risk,” GOP Chairman Reince Preibussaid last month
<https://www.gop.com/rnc-statement-on-latest-hillary-clinton-email-release/>
.

Actually, it is our bloated classification system that puts our security at
risk. Some classification is unquestionably necessary to keep the nation
safe, but overclassification not only stifles public discussion and debate
<http://www.newseuminstitute.org/2015/03/09/democracy-behind-closed-doors-overclassification-and-the-first-amendment/>,
it also discourages people from following the rules. Officials who
routinely encounter innocuous information marked “top secret” lose respect
for the system. They are more likely to handle information carelessly or
even engage in unauthorized disclosures, believing that little harm will
result. The danger is that the baby could get thrown out with the
bathwater: A casual approach to classified information jeopardizes the real
secrets buried within the excess.

Overclassification also creates practical barriers to compliance. The
procedures for storing, accessing and transmitting classified information
are burdensome. That’s a feature, not a bug: These logistical barriers not
only prevent unauthorized access but also aim to keep the bar for
classifying information appropriately high. But when onerous security
measures must be followed to transact even the most routine official
business, the burden can become untenable.

Indeed, departure from protocol is not uncommon. Clinton’s e-mails revealed
that career diplomats were sending foreign government information through
unclassified channels. As one former intelligence official put it
<https://www.washingtonpost.com/opinions/the-hillary-clinton-e-mail-scandal-that-isnt/2015/08/27/b1cabed8-4cf4-11e5-902f-39e9219e574b_story.html>,
“It’s inevitable, because the classified systems are often cumbersome, and
lots of people have access to the classified e-mails or cables.”

Even those who scrupulously attempt to comply with the rules may find
themselves unable to do so. With so much classified information coursing
through the system, it is simply impossible to avoid some spillage.

These problems could be solved. Meaningful limits could be placed on
officials’ discretion to classify, and an internal oversight system
<http://www.brennancenter.org/publication/reducing-overclassification-through-accountability>
could
be established to ensure that officials do not overstep these lines.
Declassification could be made automatic after a reasonable time, rather
than allowing agencies to create a bottleneck by conducting lengthy
reviews. Shrinking the pool of secrets would make it easier to ensure that
classified information is properly marked and protected, which would
enhance national security and relieve the burden on busy officials. Without
such measures, overclassification is sure to continue.

Elizabeth Goitein is co-director of the liberty and national security
program at the Brennan Center for Justice at New York University School of
Law.
-- 

Adrienne K. Elrod
Spokesperson
Hillary For America
*www.hillaryclinton.com <http://www.hillaryclinton.com>*
@adrienneelrod

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