The Other ‘Top Secret’ Problem Hurting Hillary Clinton

Not all secrets are created equal—and for Clinton, that may be a real problem.

Hillary Clinton speaks during the Presidential Candidates Plenary at the National Urban League conference in the Fort Lauderdale Convention Center on July 31, 2015.
Joe Raedle AFP/Getty
Ben Geman
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Ben Geman
Aug. 19, 2015, 11:57 a.m.

The re­cent con­tro­versy over Hil­lary Clin­ton’s use of a private email serv­er for pub­lic busi­ness is all about secrecy. Did Clin­ton handle “clas­si­fied,” or even “top secret,” emails with her serv­er? And if so, was it “clas­si­fied” when it ar­rived in Clin­ton’s cus­tody or did it only be­come that way ret­ro­act­ively? But be­neath the Clin­ton-versus-Con­gress war of words, na­tion­al se­cur­ity ex­perts are wrest­ling with a ques­tion that has plagued the in­tel­li­gence com­munity for dec­ades: How secret is “top secret” really?

Long be­fore Clin­ton made the de­cision to op­er­ate a private email serv­er dur­ing her ten­ure at the top of the State De­part­ment, in­tel­li­gence agen­cies had been guilty of “over­clas­si­fic­a­tion”: ex­cess­ive secrecy that sat­ur­ates de­cisions about what’s clas­si­fied and tips the bal­ance to­ward keep­ing way too many doc­u­ments off-lim­its.

Now, as in­tel­li­gence com­munity of­fi­cials pore over thou­sands of her un­re­leased emails, over­clas­si­fic­a­tion could be­come Clin­ton’s polit­ic­al prob­lem. She’s fa­cing at­tacks from law­makers and GOP White House hope­fuls for po­ten­tially mis­hand­ling secrets by al­low­ing them to spill out­side of se­cure chan­nels. But some ex­perts be­lieve that much of the in­form­a­tion likely presents al­most no risk if dis­closed and that some may not be very secret at all.

“The odds are good that any clas­si­fied in­form­a­tion in the Clin­ton emails should not have been clas­si­fied,” said Eliza­beth Goitein of the Bren­nan Cen­ter for Justice, a left-lean­ing law and policy think tank. Her reas­on­ing? Es­tim­ates show that 50 per­cent to 90 per­cent of clas­si­fied doc­u­ments could be made pub­lic without risk­ing na­tion­al se­cur­ity.

“It is so rare that I have seen leaked or sub­sequently dis­closed clas­si­fied in­form­a­tion where I think, ‘Yeah, I would ex­pect some na­tion­al se­cur­ity harm from re­leas­ing this in­form­a­tion,’” Goitein said.

That doesn’t mean, however, that she and oth­er in­form­a­tion-free­dom ad­voc­ates are lin­ing up be­hind Clin­ton. But to them, the email scan­dal isn’t really about se­cur­ity, it’s about the lack of trans­par­ency in a private sys­tem that un­til re­cently thwarted the abil­ity to view Clin­ton’s emails un­der pub­lic re­cords laws.

“It would be iron­ic if the up­shot of the Hil­lary Clin­ton email story was a per­cep­tion that she was not good enough at keep­ing secrets,” Goitein said.

“Clin­ton’s mis­treat­ment of fed­er­al re­cords and the in­tel­li­gence com­munity’s de­sire to ret­ro­act­ively over­clas­si­fy are two dis­tinct troub­ling prob­lems,” said Nate Jones, an in­form­a­tion-secrecy ex­pert with the Na­tion­al Se­cur­ity Archive at George Wash­ing­ton Uni­versity. “No politi­cian is giv­ing the right mes­sage: Blame Clin­ton for poor re­cords prac­tices, but don’t em­brace over­clas­si­fic­a­tion while you do it.”

Already, the in­spect­or gen­er­al for fed­er­al in­tel­li­gence agen­cies has con­cluded that two mes­sages Clin­ton re­ceived had “top secret” con­tent. The emails did not con­tain clas­si­fic­a­tion mark­ings at the time. The on­go­ing re­view of thou­sands of Clin­ton’s emails for re­lease un­der the Free­dom of In­form­a­tion Act is likely to pro­duce even more dis­cov­er­ies of in­form­a­tion that of­fi­cials now want off-lim­its, while sev­er­al dozen of Clin­ton’s emails that have already been re­leased con­tained re­dac­tions of in­form­a­tion now deemed clas­si­fied at some level.

But for now, and per­haps for a long while, the gen­er­al pub­lic can only guess about wheth­er over­clas­si­fic­a­tion is com­ing to play in the Clin­ton emails, as the ac­tu­al con­tent of clas­si­fied mes­sages in ques­tion can only be viewed by a se­lect few.

Trans­par­ency ad­voc­ates say that while the spe­cif­ics of clas­si­fied con­tent may not be clear, the is­sue of over­clas­si­fic­a­tion should not be for­got­ten in the fur­or.

“It’s the con­ver­sa­tion we are not hav­ing be­cause we are talk­ing about try­ing to track down every last scrap of clas­si­fied in­form­a­tion that might have been on the Clin­ton serv­er,” said Steven Af­ter­good, a secrecy ex­pert of the Fed­er­a­tion of Amer­ic­an Sci­ent­ists. “I sort of cringe every time I read an­oth­er story about the Clin­ton emails be­cause it is the wrong con­ver­sa­tion to have. We do have a prob­lem with clas­si­fic­a­tion but it is not primar­ily a mat­ter of safe­guard­ing, it is a ques­tion of what is the prop­er scope of clas­si­fic­a­tion.”

Crit­ics such as Goitein ar­gue that in­tel­li­gence agen­cies of­ten ab­use their clas­si­fic­a­tion dis­cre­tion in a way that keeps in­form­a­tion about fed­er­al policies and ac­tions hid­den from pub­lic view and could even worsen se­cur­ity by im­ped­ing in­form­a­tion-shar­ing among agen­cies.

A re­port that Goitein co-au­thored in 2011 lays out sev­er­al “stark” ex­amples of secrecy with re­spect to in­form­a­tion ran­ging from dec­ades-old CIA budgets to parts of a 2006 dip­lo­mat­ic cable marked “con­fid­en­tial” that simply de­scribed how wed­dings are con­duc­ted in the Rus­si­an re­pub­lic of Dagest­an.

Con­cern about over­clas­si­fic­a­tion is not only the province of the Left: Shortly after the dis­clos­ures of in­form­a­tion taken by con­tract­or Ed­ward Snowden began in 2013, Cali­for­nia GOP Rep. Duncan Hunter said he feared that over­clas­si­fic­a­tion could jeop­ard­ize se­cur­ity be­cause sev­er­al mil­lion people need se­cur­ity clear­ances.

Richard Lem­pert, in a lengthy ana­lys­is of Clin­ton’s email woes pub­lished last week by the Brook­ings In­sti­tu­tion, notes that “se­cur­ity pro­fes­sion­als have a repu­ta­tion for erring in the dir­ec­tion of over­clas­si­fic­a­tion.”

Pres­id­ent Obama is­sued an ex­ec­ut­ive or­der in 2009 aimed at part in lessen­ing the over­clas­si­fic­a­tion prob­lem. But Lem­pert, a former Home­land Se­cur­ity De­part­ment of­fi­cial, writes, “If … my ex­per­i­ence with­in one agency was typ­ic­al, some at the op­er­a­tion­al level may not have fully bought in to the pres­id­ent’s slant.”

There have been signs that in­tel­li­gence agen­cies’ zeal to clas­si­fy is eas­ing, though it’s a no­tori­ously tough prob­lem to gauge.

A Na­tion­al Archives and Re­cords Ad­min­is­tra­tion re­port this year found that in fisc­al year 2014, ex­ec­ut­ive-branch agen­cies made 46,800 “ori­gin­al” clas­si­fic­a­tion de­cisions, which refers to a de­term­in­a­tion that un­au­thor­ized dis­clos­ure could “reas­on­ably be ex­pec­ted to cause dam­age to the na­tion­al se­cur­ity.” That’s a 20 per­cent drop from the pri­or year and con­tin­ues a years-long down­ward trend.

Far more com­mon are so-called de­riv­at­ive clas­si­fic­a­tions, defined as “in­cor­por­at­ing, para­phras­ing, re­stat­ing, or gen­er­at­ing in new form in­form­a­tion that is already clas­si­fied.” There were an es­tim­ated 77.52 mil­lion de­riv­at­ive-clas­si­fic­a­tion de­cisions in fisc­al 2014, a 3 per­cent drop from the pri­or year, the re­port finds. Goitein and oth­er crit­ics note that agency guidelines for such de­cisions of­ten lead to new in­form­a­tion be­ing placed off lim­its.

Af­ter­good says the drop in ori­gin­al clas­si­fic­a­tion de­cisions—that is, des­ig­na­tions of new secrets—to the low­est level on re­cord is good news. But that doesn’t mean over­clas­si­fic­a­tion doesn’t re­main a ma­jor prob­lem.

For Clin­ton, ques­tions and rev­el­a­tions about clas­si­fied in­form­a­tion are dam­aging, in part be­cause in March she said: “I did not email any clas­si­fied ma­ter­i­al to any­one on my email. There is no clas­si­fied ma­ter­i­al.” Clin­ton and her cam­paign have since softened the phras­ing, say­ing that she did not send or re­ceive any in­form­a­tion that was marked clas­si­fied at the time.

Scru­tiny of Clin­ton’s email prac­tices in­tens­i­fied this month. Charles Mc­Cul­lough, the fed­er­al in­tel­li­gence com­munity’s in­spect­or gen­er­al, re­vealed that at least two mes­sages that crossed Clin­ton’s private serv­er con­tained in­form­a­tion that is “top secret”—the highest level of clas­si­fic­a­tion. Mc­Cul­lough found two oth­ers with clas­si­fied in­form­a­tion, and he re­viewed just a small sub­set of roughly 30,000 emails that Clin­ton turned over to the State De­part­ment.

The four mes­sages were not marked clas­si­fied at the time, but Mc­Cul­lough and the State De­part­ment’s in­spect­or gen­er­al say the mes­sages con­tained clas­si­fied in­form­a­tion when they were gen­er­ated, and should not have crossed Clin­ton’s per­son­al sys­tem.

Af­ter­good, while cau­tion­ing he does not know the spe­cif­ics of the few emails that Mc­Cul­lough already flagged, is rather cir­cum­spect about the “top secret” find­ing. Af­ter­good said his “an­ten­nae shook a little” when he saw the “top secret” con­clu­sion, not­ing the State De­part­ment has not en­dorsed Mc­Cul­lough’s claim.

“I don’t think the IG is fab­ric­at­ing or pre­var­ic­at­ing or mak­ing stuff up. It is just not the last word on the sub­ject, be­cause it is pos­sible for dif­fer­ent of­fi­cials in the same agency, and for dif­fer­ent agen­cies to dis­agree on the status of clas­si­fied in­form­a­tion,” said Af­ter­good, who dir­ects his group’s Pro­ject on Gov­ern­ment Secrecy.

“It re­mains sig­ni­fic­ant that there is a dif­fer­ence of opin­ion between State and the in­tel­li­gence com­munity, and that in turn re­flects the sub­ject­ive char­ac­ter of the clas­si­fic­a­tion sys­tem,” he said.

The ques­tions about Clin­ton’s mes­sages aren’t go­ing away any­time soon. On­go­ing vet­ting of Clin­ton’s mes­sages could en­sure that a sub­stan­tial num­ber of emails, though it’s un­clear how many, will re­main bey­ond the pub­lic’s reach, even as State has be­gun re­leas­ing thou­sands of mes­sages in monthly batches un­der a court or­der.

On Monday, the State De­part­ment in­formed a fed­er­al judge that staff from in­tel­li­gence agen­cies have, so far, flagged 305 doc­u­ments for re­fer­ral to their agen­cies for more con­sulta­tion. The re­view­ers are aid­ing the State De­part­ment’s re­view of tens of thou­sands of pages of Clin­ton’s emails for re­lease un­der the Free­dom of In­form­a­tion Act.

Already, the re­view for re­lease un­der FOIA has found—and re­dac­ted—63 mes­sages with clas­si­fied ma­ter­i­al in more than 3,000 mes­sages re­leased thus far, though State De­part­ment spokes­man John Kirby said Monday that most of those were clas­si­fied at a very low level.

The claim of “top secret” in­form­a­tion has gen­er­ated a fresh burst of cri­ti­cism, but there are im­me­di­ate doubts about the con­clu­sion. The As­so­ci­ated Press, cit­ing un­named of­fi­cials who have read the ex­changes, re­por­ted late last week on the two emails labeled “top secret.” One in­cluded dis­cus­sion of a drone strike, while “A second con­ver­sa­tion could have im­prop­erly re­ferred to highly clas­si­fied ma­ter­i­al, but it also could have re­flec­ted in­form­a­tion col­lec­ted in­de­pend­ently,” the AP re­por­ted.

Sen. Di­anne Fein­stein, the top Demo­crat on the Sen­ate’s In­tel­li­gence Com­mit­tee, has signaled skep­ti­cism about the claims of clas­si­fied in­form­a­tion in Clin­ton’s mes­sages.

In a state­ment last week, Fein­stein, who has ac­cess to the four mes­sages that the in­tel­li­gence com­munity IG has flagged, said that none of them were writ­ten by Clin­ton, and ad­ded: “The ques­tions are wheth­er she re­ceived emails with clas­si­fied in­form­a­tion in them, and if so, wheth­er in­form­a­tion in those emails should have been clas­si­fied in the first place. Those ques­tions have yet to be answered.”

The State De­part­ment, mean­while, has subtly aided Clin­ton by de­clin­ing to sup­port in­tel­li­gence com­munity claims of “top secret” in­form­a­tion. Kirby said re­cently that they were not marked as clas­si­fied and that they were cir­cu­lated on un­clas­si­fied sys­tems in 2009 and 2011, and then for­war­ded to Clin­ton.

He said last week that State would work with the dir­ect­or of na­tion­al in­tel­li­gence to re­solve wheth­er the ma­ter­i­al is clas­si­fied. A seni­or State of­fi­cial also in­dic­ated that what’s known as “par­al­lel re­port­ing” could be at play—that is, cases in which dif­fer­ent agen­cies gath­er in­form­a­tion from both open and sens­it­ive sources.

“It is com­mon for State De­part­ment em­ploy­ees to learn in­form­a­tion from open sources, in­clud­ing press re­ports, that may also be in­de­pend­ently learned through en­tirely sep­ar­ate means with­in the in­tel­li­gence com­munity,” the of­fi­cial said.

Af­ter­good says he can’t point the fin­ger at over­clas­si­fic­a­tion when it comes to the two emails without know­ing more spe­cif­ics, but sug­gests it could be at play. “When it comes to drones, CIA has in­sisted on form­ally clas­si­fy­ing the top­ic long after it be­came pub­lic know­ledge. It is prob­ably the biggest open secret there is,” he said.

Crit­ics of over­clas­si­fic­a­tion say the amount of ma­ter­i­al need­lessly kept from pub­lic view is vast. Thomas Kean, the former GOP gov­ernor of New Jer­sey who later chaired the com­mis­sion that probed the Septem­ber 11 at­tacks, once re­marked that “three-quar­ters of what I read that was clas­si­fied shouldn’t have been.”

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