Belmont Club

Cloak and Dagger Again

Continuing in number one spot the news hit parade are stories pertaining to Hillary Clinton’s email server. The John Schindler of Daily Beast says that “spy satellite secrets” were among those emails handled on her private server.

On August 11, after extensive investigation, the Intelligence Community’s Inspector General reported to Congress that it had found several violations of security policy in Clinton’s personal emails.

Most seriously, the Inspector General assessed that Clinton’s emails included information that was highly classified—yet mislabeled as unclassified. Worse, the information in question should have been classified up to the level of “TOP SECRET//SI//TK//NOFORN,” according to the Inspector General’s report.

This stuff is like legal Kryptonite, as Schindler explains.

You may have seen acronym lists like these on declassified documents before—and glazed over them. This is the arcane language of the cleared cognoscenti so let me explain what this means:

• TOP SECRET, as the name implies, is the highest official classification level in the U.S. government, defined as information whose unauthorized release “could cause exceptionally grave damage to national security or foreign relations.”

• SI refers to Special Intelligence, meaning it is information derived from intercepted communications, which is the business of the National Security Agency, America’s single biggest source of intelligence. They’re the guys who eavesdrop on phone calls, map who’s calling who, and comb through emails. SI is a subset of what the intelligence community calls Sensitive Compartmented Information or SCI. And these materials always require special handling and protection. They are to be kept in a Sensitive Compartmented Information Facility or SCIF, which is a special hardened room that is safe from both physical and electronic intrusion.

• TK refers to Talent Keyhole, which is an IC caveat indicating that the classified material was obtained via satellite.

• NOFORN, as the name implies, means that the materials can only be shown to Americans, not to foreigners.

In short: Information at the “TOP SECRET//SI//TK//NOFORN” level is considered exceptionally highly classified and must be handled with great care under penalty of serious consequences for mishandling. Every person who is cleared and “read on” for access to such information signs reams of paperwork and receives detailed training about how it is to be handled, no exceptions—and what the consequences will be if the rules are not followed.

Hillary Clinton’s website argues the material may not have been classified at the time she mailed; or if it was, the fact was unknown to her. The former is unlikely, since information from these sources would have been classified at origination. It was Kryptonite from the get-go. The more plausible claim is “Hillary didn’t know” what it was.

Clinton only used her account for unclassified email. No information in Clinton’s emails was marked classified at the time she sent or received them.

When information is reviewed for public release, it is common for information previously unclassified to be upgraded to classified if the State Department or another agency believes its public release could cause potential harm to national security, law enforcement or diplomatic relations.

After reviewing a sampling of the 55,000 pages of emails, the Inspectors General have proffered that a small number of emails, which did not contain any classified markings and/or dissemination controls, should have been classified at the time they were sent. The State Department has said it disagrees with this assessment.

Clinton hopes the State Department and the agencies involved in the review process will sort out as quickly as possible which of the 55,000 pages of emails are appropriate to share with the public.

However, Charles Cooke writing in the National Review argues that Hillary’s ignorance would be no excuse, quoting the relevant statues themselves. “Under 18 USC 793(f)(1)-(2), it is a felony to transmit classified information on the subject of national defense through unapproved channels”. He adds, “legally speaking, however, her intentions are wholly and utterly irrelevant. In this area of federal law, the standard isn’t intent, it’s negligence.”

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer— Shall be fined under this title or imprisoned not more than ten years, or both.

Having said that, Cooke admits cannot bring himself to believe Hillary will ever be charged for handling classified information over her own private system. “The obvious question, then, is this: Given all that we now know, why is the very idea that Clinton may have committed crimes that require punishment still being met with such disbelief?”

To wit: Why, given that the government can choose whom it wishes to prosecute, is it ridiculous to imagine that it would choose to do so if the case involved Hillary Clinton? Meditating upon that inquiry, I cannot help but think that the answer is, “because Clinton is running for president, because she is extremely famous, and because Loretta Lynch is the attorney general.”

There is of course stronger reason which sits at the very end of Cooke’s own train of reasoning, though he himself does not invoke it. Hillary won’t be prosecuted because to do so would open a can of worms. Hillary Clinton could not have handled such a vast number of sensitive documents in that manner without the tacit knowledge and tolerance of a large number of high ranking administration officials. At the very least those to whom she sent such emails or who sent her material on her server must have been aware of it.

In March, president Obama admitted he knew about Hillary’s email private email server. The Daily Mail reported:

The White House confirmed on Monday that President Barack Obama knew about Hillary Clinton’s private email address because he emailed her at it during her tenure of secretary of state.

When Obama said in an interview that aired Sunday that he found out Clinton used a private email account to conduct official business at ‘the same time as everybody else learned it through news reports,’ what he meant was that was the first he’d heard of her exclusive use of use of personal email and of her private server, his spokesman clarified this afternoon.

‘The president, as I think many people expected, did over the course of his first several years in office trade emails with his secretary of state,’ White House spokesman Josh Earnest told reporters.

‘I would not describe the number of emails as large, but they did have the occasion to email each other.’

Could it be that the president did not know of Hillary’s practices over an extended period involving so many messages?    How could it be possible except for the incompetence of her boss? Charles Cooke’s dictum bears repeating in this context: “legally speaking, however … intentions are wholly and utterly irrelevant. In this area of federal law, the standard isn’t intent, it’s negligence.”

Negligence. There is no plausible way of advancing this Clinton scandal without turning it into an administration scandal.

Of course it might not have been negligence so much as a Secret Mission. Her ultimate defense is “someone authorized it” or “we did it for reasons that I cannot disclose.” Cloak and dagger. What were you cloaking?  And who were you stabbing? Nobody wants to go there.

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