RUTHFULLY YOURS

Well, you heard it here first.

Today, the State Department released Benghazi-related email from the private server and one of the (at least) two private email accounts on which former Secretary of State Hillary Clinton conducted official business – recklessly and in violation of laws and guidelines relating to the exchanging and preservation of electronic communications. Within hours, the Obama administration was forced to concede that at least one of the emails contained classified information.

Mrs. Clinton has previously and dubiously claimed that she did not discuss classified information on her private email account(s). Despite today’s disclosure, she is standing by that claim as, apparently, is the State Department. Her rationale is that the information in question – which relates to suspects in the Benghazi attack and remains highly sensitive ­– was not classified “secret” at the time of the email exchange. Instead, it was upgraded to “secret” status just today by the FBI, which was plainly alarmed at the prospect of its disclosure.

I warned about this situation back in March, when Mrs. Clinton’s violation of federal laws and guidelines in connection with using private email to conduct official business first surfaced. The problem with the rationalization offered by Mrs. Clinton and the administration is twofold.

First, at the time of the Benghazi attack, Mrs. Clinton was secretary of state and an old hand at dealing with classified information. She thus had to have known at the time of the communication in question that information of the type she was dealing with should have been classified as “secret” even if it had not been so classified yet. Obviously, the FBI instantly recognized the significance of the information upon learning that it was about to be disclosed.

Second, it is frequently the case that highly sensitive information is not classified (or not yet classified); nevertheless, government officials are instructed that it is not to be disclosed publicly and not to be discussed on non-government email systems.

As I explained back in March:

Mrs. Clinton [in her press conference] stressed that she never stored classified documents on her private e-mail system. To the uninitiated, this sounded like the strongest point in her defense. Mostly, however, it is a red herring, exploiting the public’s unfamiliarity with how classified information works — and fueling no small amount of irresponsible speculation over the last few days about how the nature of her responsibilities meant classified material must have been stored on her private system. In the government, classified documents are maintained on separate, super-highly secured systems…. [I]n general, Mrs. Clinton would not have been able to access classified documents even from a .gov account, much less from her private account — she’d need to use the classified system. … That said, there are two pertinent caveats.

First, since we’re dealing with Clintonian parsing here, we must consider the distinction between classified documents and classified information — the latter being what is laid out in the former. It is not enough for a government official with a top-secret clearance to refrain from storing classified documents on private e-mail; the official is also forbidden to discuss the information contained in those documents. The fact that Mrs. Clinton says she did not store classified documents on her private server, which is very likely true, does not discount the distinct possibility that she discussed classified matters in private e-mails….

Second, most of the important but mundane information exchanged in government is not classified. It is a truism that too much information in Washington is classified. Still, it is also true that, for government officials, dealing with classified information is very inconvenient — you are usually not allowed to read it on your office computer, certainly not on your personal computer, not while commuting to work, not at home, etc. Thus, much of the information that government officials deal with is categorized as “sensitive but unclassified” (SBU).

To listen to the commentary over the past week, and to listen to Mrs. Clinton yesterday, one would think there are only two realms of government information: something is either a national defense secret or the seating chart for Chelsea’s wedding reception. Most information, though, is neither classified nor private. When I was a federal prosecutor, for instance, the SBU information I routinely dealt with included: grand-jury transcripts, the secrecy of which must be maintained by law; investigative reports by the FBI, DEA, NYPD, and other investigative agencies; wiretap affidavits that disclosed that investigations were underway, the suspects, the evidence, the wiretap locations, and the identity of government undercover agents, informants, and witnesses; memos outlining investigative or litigation strategies to deal with organized crime and terrorism organizations; plans to orchestrate arrests in multi-defendant cases where flight risk was a concern; financial information of subjects of investigations; personal information (sometimes including family financial and medical information) of lawyers and staff whom I supervised; contact information (including home addresses) of agents with whom I worked on cases often involving violent crime and public corruption; contact information (including home addresses) of judges in the event it was necessary to get a search warrant after hours; and so on.

None of that information was classified. I was permitted to — and needed to — have it ready to hand, but it was also my duty to maintain it in a secure, responsible manner . . . a duty that became even more important once I was a boss and was expected to set an example for junior lawyers and staff to follow. And mind you, I was just a government lawyer. I was not the secretary of state.

The inadvertent or unauthorized disclosure of SBU can do enormous damage. It can even get people killed. That is why the State Department has elaborate rules about SBU — rules that include instructing State Department employees to conduct their e-mail business via government e-mail accounts on government communications systems that have “the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of resident information” (U.S. Dept. of State, Foreign Affairs Manual, vol. 12, sec. 544.3 ). As Fox News relates, it was on the basis of these concerns that Mrs. Clinton, as secretary of state, directed State Department employees in June 2011 to “avoid conducting official Department [business] from your personal e-mail accounts.”

Thus far, there has been disclosure of only a fraction of Mrs. Clinton’s existing private email – i.e., the email that she did not unilaterally delete despite being on notice that it was relevant to government investigations. Yet it is already clear that, as secretary of state, she did business in a way that was, at a minimum, grossly irresponsible … and quite possibly worse. She had to have realized the near certainty that an official of her stature would have been targeted for surveillance of her private emails by foreign intelligence services. Yet, in her determination not to leave a paper trail that might damage her political prospects, she ignored the risks. The Justice Department, which has prosecuted high government officials for mishandling national defense information, should be investigating – and that includes acquiring custody of Mrs. Clinton’s private server.