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
Add to Briefcase
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.”

What We're Following See More »
Senate Rejects Effort to Nix SALT Tax Changes
14 hours ago

"Senate Democrats on Thursday failed in their first attempt to save the state and local tax deduction, which helps many residents of California and other high-cost states reduce their federal income tax bills. The Republican-controlled Senate voted 52-47 to reject an amendment that would have prevented the Senate from considering any bill that repeals or limits the deduction as part of a planned tax overhaul."

Lewandowski Meets with Senate Intelligence Committee
19 hours ago

"President Donald Trump's former campaign manager Corey Lewandowski appeared on Capitol Hill for a closed-door interview with the Senate intelligence committee Wednesday, according to a source familiar with the matter. Lewandowski is the latest senior official in Trump's orbit who has met with the committee as part of its investigation into Russian election meddling and possible collusion with the Trump campaign."

Some Members Seek to Wrap Up Russia Investigations by Year’s End
1 days ago

"A growing number of key Republicans are sending this message to the leaders of the congressional committees investigating potential Trump campaign collusion with the Russians: Wrap it up soon. In the House and Senate, several Republicans who sit on key committees are starting to grumble that the investigations have spanned the better part of the past nine months, contending that the Democratic push to extend the investigation well into next year could amount to a fishing expedition."

Trump: Marino Withdrawing Nomination for Drug Czar
2 days ago
Doesn’t Express Confidence in Marino
Trump to Declare Opioid Emergency Next Week
3 days ago

After initially promising it in August, "President Trump said Monday that he will declare a national emergency next week to address the opioid epidemic." When asked, he also "declined to express confidence in Rep. Tom Marino (R-Pa.), his nominee for drug czar, in the wake of revelations that the lawmaker helped steer legislation making it harder to act against giant drug companies."


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.