Ordered Liberty

Yes, Hillary Knows Classified Information Does Not Always Come with a 'Header'

Well, it looks like Hillary Clinton’s oft-repeated canard — “I never sent or received any e-mails marked classified” — has been so thoroughly discredited that it now poll-tests poorly. Hence, she broke out a new wineskin for the same old rotgut at last night’s candidate forum: the “header.”

The issue arose when she was bluntly questioned by a military vet who pointed out that, had he recklessly mishandled classified information the way she did, he’d have been prosecuted. She countered:

Classified material has a header that says “top secret,” “secret,” “confidential.” None of the emails sent or received by me had such a header. What we have here is the use of an unclassified system by hundreds of people in our government to send information that was not marked. There were no headers, there was no statement … “top secret,” “secret” or “confidential.”

Obviously, Mrs. Clinton is tactically morphing “marked” into “header” because some of her emails were marked classified.

Were she to repeat the “nothing marked classified” lie and leave it at that, the public would be reminded not only that she is known to have lied about this (FBI director Comey acknowledged as much in his House testimony); but also that she fibbed in ludicrous fashion when called on the markings in her FBI interview — claiming to have believed the “(C)” designation had to do with putting paragraphs in alphabetical order. (Of course, it refers to classified information at the confidential level, something well known to Clinton because, among other reasons, she was for a decade a heavy-duty consumer of classified documents, in which the “(C)” designation is ubiquitous.)

Clinton is also seeking to exploit what little is to be gained from the FBI’s feeble defense of her transmission of documents marked classified. Comey noted that there were “portion markings” within three e-mail documents (meaning there were designations — e.g., “(C)” — that indicated a particular paragraph in the document was classified). Yet, he also testified that those documents did not conform to the proper procedure for marking documents classified. That procedure includes placing on the document a header indicating its classification level (e.g., “confidential,” “secret” or “top secret”), so there is no mistaking its status.

Clearly, the absence of a header does not change the fact that the classified portions of the three documents in question were marked as such. Nor does it alter the fact that Mrs. Clinton, a regular consumer of classified information who claims always to have been careful in handling it, would have known exactly what the markings meant — and, thus, that storing or transmitting a document containing such markings on a private, non-secure system was illegal.

Nevertheless, as I have repeatedly pointed out since the Clinton email scandal came to light in March 2015, this whole brouhaha about “marked” classified — and, in its new iteration, classification “headers” — is a red herring. A great deal of classified information is not marked at all.

If an official with a security clearance sits in on a meeting or briefing at which classified information is presented orally, it would be unlawful for that official to transmit that information via a non-government, non-classified email system. The fact that such an email would obviously not be marked would make no difference — officials trained in handling classified information and given security clearances for access to it are intimately aware of the rules.

To take another notorious example, General David Petraeus, the former CIA director, knew that his diaries contained top secret information notwithstanding the absence of markings and headers designating them as such. That is why, when he pled guilty to mishandling classified information, he did not attempt to use the lack of markings on the diaries as a defense. Such a claim, he had to know, would have been frivolous.

But the most significant point here is that Hillary Clinton knows that what she is saying is nonsense.

As Jeryl Bier recently pointed out at the Weekly Standard, Clinton signed a “Classified Information Nondisclosure Agreement” on January 22, 2009 upon becoming secretary of State. That agreement clearly states (my italics):

As used in this Agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 12959, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security[.]

Not only does her Agreement elucidate in unmistakable terms that no markings or headers are necessary for information to be deemed classified. It also includes Clinton’s acknowledgment that “I have received a security indoctrination concerning the nature and protection of classified information.” This, despite telling the FBI in her interview that she couldn’t recall any briefing or training regarding the handling of classified information.

The simple fact, so familiar in Mrs. Clinton’s case, is that she’s lying.