IG’s Want to Open Security Referral into State Department’s Handling of Clinton Records; Focus on Trees and Not Forest of FOIA/Classification Problems.

2 dozen of Hillary Clintons unclassified emails were redacted in DOS release; now state wants to open a criminal inquiry into “potentially classified” emails.

The inspectors general for the State Department and the intelligence community have asked the Department of Justice to open a security referral to determine if the Department of State inadvertently released Hillary Clinton emails that contained classified information. (The IGs did not ask the DOJ to launch a criminal inquiry “into whether sensitive government information was mishandled” as initially reported by the New York Times.) The IGs requested the review after determining five emails in the trove of tens of thousands Clinton turned over to the State Department contained information from five intelligence agencies that, while not marked classified at time they were on her server, were in fact “secret.” The request for a security referral, according to Secrecy News’ Steven Aftergood, “is a recipe for paralysis,” and the Archive’s Director Tom Blanton says, “The government would be better off dropping any classification claim, both as a matter of security, and of resources.”

State’s Under Secretary of State for Management, Patrick Kennedy, said in a June 29 memo that they were seeking the referral over concerns that Clinton’s personal account housed “hundreds of potentially classified emails.”

Clinton has maintained that none of the emails in her personal account were classified.

While Clinton undoubtedly should have taken measures to preserve her emails with the State Department (the Archive’s full analysis of her sole use of private email can be found here), the IG’s request for a security referral, and the likely retroactive classification of documents that would result, underpins broader problems of government-wide overclassification that ought to be at the fore of the debate.

Unredacted reported earlier this month on the State Department’s release of 3,000 pages (the first batch out of a total of 55,000 pages) of Clinton’s emails – at 9 PM on a Tuesday night, and the Department’s decision to ultimately redact portions of two dozen of them – even going out of its way to fully redact a 16-page speech Clinton gave to the Council of Foreign Relations in 2009 using the “withhold it because you want to” Exemption 5. The State Department hid this unclassified document in its entirety despite the incredibly high public interest in the records and Clinton’s expressed desire to see all of the emails released in full. Archive FOIA Project Director Nate Jones said at the time that using the oft-abused Exemption 5 to withhold this document is an “egregious waste of time and money.”

All of the redacted emails out of the first batch of releases are unclassified, and while “their contents were apparently not sensitive enough to national security at the time to have required a higher classification status” they must now, confoundingly, be redacted in part or in full.

What’s worse is that this “egregious waste of time and money” will balloon exponentially with a security referral. The Justice Department has yet to announce if they will open one, and hopefully they will decide in the negative.

In 2010 National Security Archive director Tom Blanton appeared before the House Judiciary Committee, providing testimony concerning the Espionage Act and whether it should be amended to prosecute Julian Assange and Chelsea Manning. Blanton showed the Committee estimates over the years of how much information gets classified that doesn’t deserve to be. Blanton noted that Ronald Reagan’s own executive secretary for the National Security Council said 90%, and that the Republican head of the 9/11 Commission who saw all the most recent Osama Bin Laden intelligence said that 75% of what he saw that was classified should not have been.

Need another example of overclassification? The latest report from the Information Security Oversight Office (ISOO), housed at the National Archives and responsible to the President for policy and oversight of the government-wide security classification system, showed that the Interagency Security Classification Appeals Panel (ISCAP) continues to overrule agency classification decisions in Mandatory Declassification Review appeals nearly 75% of the time.

ISCAP continues to overwhelmingly overrule agency classification decisions.

Blanton noted in regards to Clinton during his Senate testimony earlier this year that, ironically, because of the State Department’s terrible electronic record keeping,¹ Clinton’s use of a private “likely preserved more of her e-mails there than the State Department systems would have done had she exclusively used a state.gov account.” The public will likely get to see many more of them much sooner, too.

The DOJ should decide that it doesn’t make any sense to spend finite resources to retroactively classify emails that were in Clinton’s possession when, in all likelihood, there are no real secrets there, and the State Department and intelligence community officials should spend their own time and resources fixing systemic issues with their respective FOIA administrations rather than focusing on one felled tree in a forest of FOIA failures.

^{1. A 2015 Department of State OIG report found State’s e-mail archiving system, ironically named SMART, goes almost entirely unused. The report found that State Department “employees have not received adequate training or guidance on their responsibilities for using those systems to preserve ‘record emails.'” In 2011 State Department employees only created 61,156 record e-mails out of more than a billion e-mails sent. In other words, roughly .006% of DOS e-mails were captured electronically.↩}