The day after being sworn in as secretary of State, Hillary Clinton signed a Sensitive Compartmented Information Nondisclosure Agreement that laid out criminal penalties for “any unauthorized disclosure” of classified information.
With the intelligence inspector general finding several instances of Clinton and her aides sending classified emails over a private, unsecured server, it will be interesting to see how Clinton tries to wiggle out from under this one.
Clinton received at least two emails while secretary of state on her personal email server since marked “TS/SCI”—top secret/sensitive compartmented information—according to the U.S. intelligence community’s inspector general.
The State Department said in September that Clinton’s private email system, set up at her Chappaqua, N.Y., home, was not authorized to handle SCI.
The Democratic presidential frontrunner defended her unauthorized possession of SCI and hersending of emails containing classified information by claiming that the information was not marked as classified when it was sent or received.
The language of her NDA suggests it was Clinton’s responsibility to ascertain whether information shared through her private email server was, in fact, classified.
“I understand that it is my responsibility to consult with appropriate management authorities in the Department … in order to ensure that I know whether information or material within my knowledge or control that I have reason to believe might be SCI,” the agreement says.
The Clinton campaign did not immediately respond to a request for comment on the NDA.
According to government security experts, the type of information that receives a TS/SCI designation is sensitive enough that most senior government officials would immediately recognize it as such.
“TS/SCI is very serious and specific information that jumps out at you and screams ‘classified,’” Larry Mrozinski, a former U.S. counterterrorism official, told the New York Post in August. “It’s hard to imagine that in her position she would fail to recognize the obvious.”
Additional emails on Clinton’s server contained information that was “born classified,” according to J. William Leonard, who directed the U.S. Information Security Oversight Office from 2002 to 2008.
“If a foreign minister just told the secretary of state something in confidence, by U.S. rules that is classified at the moment it’s in U.S. channels and U.S. possession,” Leonard told Reuters in August.
Clinton’s NDA spells out stiff criminal penalties for “any unauthorized disclosure of SCI.” The FBI is currently investigating whether Clinton’s private email server violated any federal laws.
In addition to her SCI agreement, Clinton signed a separate NDA for all other classified information. It contains similar language, including prohibiting “negligent handling of classified information,” requiring her to ascertain whether information is classified and laying out criminal penalties.
There’s nothing special about a government employee signing an NDA, especially if the job involves dealing with classified information. The question in my mind is the technical one of whether Clinton violated the agreement because she was using an unsecured server. If the government is of a mind not to prosecute her, they may decide the issue in Clinton’s favor and find her not in violation of the law.
But a straight reading of the NDA indicates that she violated the agreement at least once when one of her emails revealed the name of an asset in Libya. Whether that’s enough to hang her and scuttle her campaign is unknown. But it adds to the dark cloud hanging over Mrs. Clinton’s head as the confluence of presidential politics and the legal case against her moves toward some sort of climax.