In Clinton E-Mail Scandal, Sensitive Information Is Just as Important as Classified Information

Hillary Clinton cannot defend her behavior in setting up a private, extra-government server system in order to conduct government business without complying with (a) government recordkeeping requirements, (b) the protocols for handling national defense information, and (c) the disclosure mandates of the Freedom of Information Act. It is unsurprising, therefore, that she is – with no small amount of media help – trying to move the goal posts.

For instance, Mrs. Clinton emphasizes her private server system’s purportedly elaborate security precautions – which, as I argued in my second post this morning, are beside the point since it was improper to use that system. And she stresses that she did not maintain or transmit classified documents on her private system – which, as I argued in my first post this morning, is beside the point since the issue is how she handled, stored and transmitted national defense information, regardless of whether it was stamped classified or came from documents.

Relatedly, Mrs. Clinton’s emphasis on classified documents diverts attention from another significant problem: Most sensitive information in government is not classified, but government officials are still not allowed to communicate, transmit or store it outside government communications channels and filing systems. And quite apart from any criminal liability in this regard, this point goes to Mrs. Clinton’s fitness for high office – since she not only flouted laws, regulations and guidelines; she was head of the State Department at the time and was thus obligated to enforce these laws, regulations and guidelines.

I addressed this issue back in March, when news of Mrs. Clinton’s private e-mail system surfaced:

Overlooked: “Sensitive But Unclassified”

[M]ost 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 [at her press conference], 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.”

This controversy is about much more than classified documents and criminal liability. It is about fitness, competence and character.