'Washington Post,' 'American Prospect' Get Hillary Email Scandal Exactly Wrong

In the last few days, two articles have appeared defending Hillary Clinton's use of a private server for her classified communications. One, from the famously objective PolitiFact, continued their amazingly uninformed series of "fact checks" with a check of Colorado Senate candidate Jack Graham's statement that "it's clear that [Clinton] violated security laws." The other article was written by Paul Waldman at the Washington Post Plum Line blog.

Both articles are nonsense. We'll look at why. First, let's summarize the issue.

Shortly before Hillary Clinton took the position of secretary of State, she set up -- or rather, hired Bryan Pagliano to set up -- a personal email server for her in the domain "clintonemails.com." This was apparently a very ordinary Microsoft server that started life at her home in Chappaqua, then at some point was moved to a Ma-and-Pa hosting service in Denver.

This hosting service was small enough that, at least for a while, it kept her server in a bathroom.

She used this server exclusively for email for her entire time in office, mixing her official email as secretary of State with her personal emails about yoga lessons and Chelsea Clinton's pregnancy. She left office, and 21 months later turned over a subset of those emails that she considered official records.

After lengthy court battles, the Department of State was required to turn the emails over under Freedom of Information Act requests. The State Department review of those emails revealed that two thousand or more were classified at some level.

Some of them were classified TOP SECRET with various special access designators like SPECIAL COMPARTMENTED INTELLIGENCE and TALENT KEYHOLE. This is what people mean when they say something is classified "above TOP SECRET." That's really a misnomer: there is nothing above TOP SECRET, by definition. But it does name areas of special sensitivity. (I explained the system in some detail in my Snowden and Computer Security piece.) This personal server was not particularly secure in any case, and worse, it was apparently not configured to be as secure as it could have been.

Remember, these are facts that aren't seriously disputed. There have been some things said about the emails, though, that are, well, not true.

To start with, Clinton originally said that she had no classified material in her emails at all. When that was proven false, she revised her talking point to "no material marked classified at the time." This is one of those points that Clinton repeats regularly.

It's pure obfuscation.

As I explained in "It's Not Classified Because It's Marked, It's Marked Because It's Classified," it's the content that makes something classified, not the marking.

So if Hillary is responsible for a document that contains classified information but isn't marked, her talking point is not a defense at all. In fact, she is now responsible for a second offense.

This fact isn't hard to figure out if you bother to research the law. In addition to my articles, a number of other people have been pointing it out in media. Further, it doesn't take a ton of thought to understand why it must be true: the first time someone types a document about some sensitive topic, they have to type the appropriate classifications. They know what classification to type because they know how sensitive the information is while it is being typed.

And yet, PolitiFact repeats that defense:

[F]ederal agencies have the ability to classify information after the fact. So some of the emails weren’t classified when Clinton sent or received them, but they were later classified after a government review.

Sigh.

not-how-it-works

Let's just repeat: if a security review finds the information is classified, it was classified at the time it was created. It may only have been marked as classified during the review, but it was classified.

What's more, Clinton, as secretary of State, is personally responsible for correctly marking information under Executive Order 13526.