Presidential hopeful Hillary Clinton had a bad week on the legal front. News leaked that more than 100 FBI agents continued to scour her private email server that the former Secretary of State kept in her New York home.
This week, the Intelligence Community Inspector General sent a letter to lawmakers disclosing Mrs. Clinton’s private server contained 24 “special access program” (SAP) emails. Those emails are so secret that only a handful of high-ranking officials, including the president, are allowed to view them. The emails in question are so secret it even required the Obama-appointed Inspector General (IG) Charles McCullough to obtain special security clearances to review them. In a January 14 letter to the Senate Intelligence and Foreign Relations committees, the IG said he found a number of those top, top secret SAPs.
Title 50 of the US Code Section 435, entitled War and National Defense, mandates “… (establishment of) a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.”
However, a policy document released in December 2013 by the Office of the Director of National Intelligence stated, “Intel found in Clinton’s email (contained) …exceptionally fragile and unique IC clandestine HUMINT operations and methods that are intended for dissemination outside of the originating agency,” the Director of National Intelligence said.
Mrs. Clinton responded to the latest news in an NPR interview. “As the State Department has confirmed, I never sent or received any material marked classified, and that hasn’t changed in all of these months. …This seems to me, to be, you know, another effort to inject this into the campaign. It’s another leak.” While Mrs. Clinton claims to have never sent or received classified email, it is the State Department that is classifying and releasing classified emails pursuant to a Judicial Watch FOIA.
However, according to investigators, Mrs. Clinton’s private server also contained emails highlighting her ability to maneuver around the classification procedures. One of the emails showed that she directed a staffer to erase the heading on the classified document, convert it into “unpaper,” and then send it on a non-secure device.
Obama’s former Director of the DIA Michael Flynn confirmed the possibility that SAP emails could be on Mrs. Clinton’s email server.
Adding to Mrs. Clinton’s headache is Yale Law grad and former US Attorney General Michael B. Mukasey who wrote a scathing rebuke in the Wall Street Journal: “The FBI’s criminal investigation of messages on the server initially related solely to Mrs. Clinton’s possibly unlawful mishandling of classified information. The investigation has now metastasized to include ‘the possible intersection of Clinton Foundation donations, the dispensation of State Department contracts and whether regular processes were followed’ as Fox News’s Catherine Herridge reported January 19, quoting an intelligence source.” He concluded that “it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.”
The specific consequences Mukasey referenced under US law include; (a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.
But Mrs. Clinton’s spokesperson Brian Fallon downplayed the scandal and told CNN: “We have an interagency dispute about what’s classified and what’s not.” But, a reality check based on the sheer number of agents investigating the server says otherwise.
Because the FBI investigation remains under wraps Mrs. Clinton speculated on the topic of the emails they are combing through: “It’s difficult to know because the best we can determine is that it’s likely what they are referring to is the forwarding of a New York Times article, how a New York Times public article goes around the world could be in any way viewed as classified or the fact that it would be sent (to) other people off the New York Times site I think is one of the difficulties people have understanding what this is about.”
But could the top-secret nature of the emails really land Mrs. Clinton in the clink as GOP Presidential candidate Donald Trump said?
Under Title 18 USC Section 793, Mrs. Clinton has an obligation to safeguard top-secret communications or she risks being charged for gross negligence under the Espionage Act.
“Clinton clearly knew that her setup was not equipped to handle sensitive documents,” Mukasey pointed out. “As the number of disclosed classified messages from Mrs. Clinton’s server has climbed above 1,300, her explanations have come to look increasingly improvisational and contrived.”
SAPs in the federal government “are security protocols that provide highly classified information with safeguards and access restrictions that exceed those for regular (collateral) classified information. A SAP may impose more stringent investigative or adjudicative requirements, specialized nondisclosure agreements, special terminology or markings, exclusion from standard contract investigations (carve-outs) and centralized billet systems. It may be a type of black project. A SAP can only be initiated, modified and terminated within their department or agency. Examples of SAPs include the following: SCI, NATO, CNWDI, RD, FRD and SIOP-ESI.”
So did Platte River Networks, who managed her server after she left Department of State, operate Secretary Clinton’s private server with the added protection warranted by federal law? No, in fact, Platte River said if it knew State Department-level material was going to be sent through this server they would have suggested a more secure system to prevent hacking.
Unfortunately, Mrs. Clinton’s emails were hacked by Guccifer, a Romanian hacker, who released her emails on the Internet after trying to sell them to unknown people or governments, something that landed him in the clink.
In the past few years, it’s been commonplace to pick up a paper and read a headline like, ‘the CIA’s director’s private email was hacked’ or ‘the OPM Department records breached.’
The hacking has resulted in high-ranking intelligence officers taking to the airwaves to highlight the challenges of protecting the country’s national security secrets. Last week former CIA Director and Defense Secretary Robert Gates discussed the Clinton controversy with Hugh Hewitt. When asked if it was possible that the Russians, Chinese or Iranians have compromised the Secretary’s server, he said yes.
Gates explained that if the Pentagon is attacked 100,000 times a day, “I think the odds are pretty high.” But would access to Mrs. Clinton’s server compromise national security? “Well, again, it would depend entirely on what she put on there. And I just, I haven’t read any of these emails, so I don’t know what was on those servers,” he concluded.
Also speaking to Hewitt was Former Deputy CIA Director Michael Morell, who said America’s enemies’ most likely targeted Mrs. Clinton’s private email server. “I think that foreign intelligence services, the good ones, have everything on any unclassified network that the government uses,” Morell said. “She’s paying a price for it now …it was not good.”
If that wasn’t bad enough, Cyber Security expert Michael Sutton told CNN that enemy hackers are looking for a lot more information than the singular target. “He’s (the hacker Guccifer) not going to go after the individual that he ultimately wants to get to, but rather the family and friends (of) the ones that are in communication with them and of course if they are (on the) receiving end of emails then they have the email.” This may explain why more than 100 FBI agents are tasked with reviewing the Clinton private server.
More importantly, the compromised emails would force the affected secret programs or operations to completely change their sources and methods. Colonel Ken Allard US Army (ret.) told The Hill, “You’ve got a situation in which the US is going to be forced to change an awful lot of its operational techniques.”
The Hill article explained the complexity of the type of information contained in SAP communications. “First, when imagery that is classified SECRET//NOFORN (no foreign national) is viewed, regardless of the absence of classification markings, it is distinctly evident. Second, any documents that contain or reference HUMINT is always classified SECRET, and if specific names of sources or handlers are mentioned, they are at a minimum SECRET//NOFORN. Third, SIGINT is always classified at the TS level. It’s not uncommon for some SI to be downgraded and shared over SECRET mediums; however, it is highly unlikely that a Secretary of State would receive downgraded intelligence. Finally, SAP intelligence has been discovered on Clinton’s private server, and many are now calling this the smoking gun. SAP is a specialized management system of additional security controls designed to protect SAR or Special Access Required. SAR has to do with extremely perishable operational methods and capabilities, and only selected individuals who are “read on” or “indoctrinated” are permitted access to these programs. The mishandling of SAP can cause catastrophic damage to current collection methods, techniques and personnel. In other words, if you have worked with classified material for more than a day, it seems highly implausible that someone could receive any of the aforementioned over an un-secure medium without alarm bells sounding.”
The ramifications for not following SAP intelligence procedures are found on the State Department website. Under the Handling Protected Information section, deliberate or negligent failure to comply with rules and regulations for protecting classified or sensitive information would cast doubt about an individual’s “trustworthiness, judgment, reliability, or willingness and ability to safeguard such information, and is a serious security concern.”
It further defined mishandling top secret information as, “deliberate or negligent disclosure of classified or other protected information to unauthorized persons, including but not limited to personal or business contacts, to the media, or to persons present at seminars, meetings, or conferences; collecting or storing classified or other protected information in any unauthorized location; loading, drafting, editing, modifying, storing, transmitting, or otherwise handling classified reports, data, or other information on any unapproved equipment including but not limited to any typewriter, word processor, or computer hardware, software, drive, system, game board, handheld, ‘palm’ or pocket device or other adjunct equipment; inappropriate efforts to obtain or view classified or other protected information outside one’s need to know; copying classified or other protected information in a manner designed to conceal or remove classification or other document control markings; viewing or downloading information from a secure system when the information is beyond the individual’s need to know; any failure to comply with rules for the protection of classified or other sensitive information; negligence or lax security habits that persist despite counseling by management; failure to comply with rules or regulations that results in damage to the National Security, regardless of whether it was deliberate or negligent.”
Noncompliance with rules, procedures, guidelines or regulations pertaining to national security concerns could result in dismissal and/or criminal prosecution as General Petraeus, Private Bradley Manning, CIA’s Jeffrey Sterling and John C. Kiriakou, and Stephen Jin-Woo Kim learned.
So far the information from Mrs. Clinton’s server remains in the hands of the FBI agents, who will decide whether to recommend an indictment to the Department of Justice.
The best result to come from the classified email scandal for Mrs. Clinton is that compromised communications resulted in no major changes to top-secret programs that could cost millions of dollars or lives. This includes the most secret methods and processes use to collect intel and puts at risk HUMIT assets, programs, and weapons systems, etc. super-secret stuff. Lives can be lost and programs compromised as in the cases of Johnny Walker (that cost the Navy and DoD billions in program costs); Jonathan Pollard (released classified intel to Israel and was recently freed from prison after 30 years); and, Robert Philip Hanssen, an FBI agent was sentenced to life in prison without parole for selling classified information to Russia.
Back in 2009 when Senator and President-elect Obama was transitioning into the White House, Daily Tech explained the changes required to make his Blackberry secure when he became President Obama. “While Obama could use his Blackberry freely as a Senator, as President he will have to trade his beloved Blackberry in for a less sexy (and user-friendly) NSA-approved mobile phone. The reason Obama will need a significantly more secure mobile device is one of national security. Hackers and eavesdroppers could conceivably gain access to private conversations made with the Blackberry. RIM does offer encryption for the Blackberry, but it isn’t up to the standards needed for classified data. The NSA does have an approved device that Obama can choose once he takes office. The device is the General Dynamics Sectera Edge. The device is a PDA phone that is certified by the NSA to handle top-secret voice communications along with secret email and websites.” So the risks associated with using non-secure communications were not unknown to the public and certainly not to the government.
There is the further issue of Mrs. Clinton wiping her server and claiming she provided all government- related emails to a Congressional committee. Based on the evolving investigation and classification of more than a thousand emails Mrs. Clinton may be looking at charges for the destruction of evidence or obstruction of justice as well.
If the Justice Department indicts Mrs. Clinton for unauthorized disclosure of classified information or other charges, she may be forced to shift her schedule from campaigning to plea-bargaining.