The Corner

Politics & Policy

Hillary’s ‘No Classified Markings’ Canard Actually Makes Things Worse

As our friend Guy Benson tallies things up in the Clinton email scandal, there were not only a whopping 2,079 emails containing classified information that were stored and transmitted on Hillary Clinton’s non-secure private server system. It turns out that she personally wrote 104 such emails – which, the Washington Post gingerly observes, “could complicate her efforts to argue that she never put government secrets at risk.” I’ll say. In fact, I have said: see my February 6 column describing the damage the former secretary of state has done to national security by exposing intelligence secrets, collection methods, and sources of information to hostile foreign intelligence services.

Let’s also keep in mind a fact that’s easy to forget since what’s before our eyes is so outrageous: For now, we are only talking about the Clinton emails that she deigned to turn over to the government. As Guy reminds us, there are another 32,000 emails that she attempted to delete. There have been reports indicating that the FBI has been able to recover at least some of these from the server. It is a shoe that has yet to drop.

Recall the state of play: Mrs. Clinton originally insisted no classified information was ever transmitted on her servers. When this became untenable, she changed her story to claim that she never personally sent or received classified emails – a claim that, even if true, would be of little legal relevance since she caused the creation of the private server system via which, because of the way she ran her office, the transmission of classified emails by her underlings was inevitable. But of course, we now know for sure that the claim is not true: Wholly apart from what she may have received, Clinton personally wrote and sent those aforementioned 104 emails containing classified information.

So the final evolution in this bogus defense is that there were “no classified markings” on emails stored or sent via the private server. Obviously, this is offered to intimate that she had no way of knowing she and her subordinates were handling classified information with criminal recklessness.

As I’ve repeatedly explained, this is an absurd suggestion: Government officials with security clearances are trained in categories of information that are classified pursuant to executive order, and documents that incorporate national defense secrets are “born classified” regardless of whether they are marked classified – e.g., if a government official takes notes at a classified briefing or from a classified document, the notes are classified even if not marked as such; or if information comes from foreign governments, it is presumptively classified under President Obama’s pertinent executive order (which mainly repeats longstanding categories of information deemed classified). For instance, former CIA director David Petraeus’s highly classified journals were not marked classified, but he pled guilty to mishandling them anyway because he well knew the lack of markings were not a defense.

In fact, the lack of markings not only fails as a defense. It is more likely to be evidence of guilt.

The government maintains separate networks for classified and unclassified documents. The documents on the classified system are the ones marked classified. It is not physically possible to email documents from the classified to the unclassified system. Therefore, if information marked classified somehow ends up outside the classified system in an unmarked form, it can only be because someone willfully and at considerable effort put it in the unmarked form. If many of Mrs. Clinton’s emails are not marked classified even though they contain classified information, it took quite intentional labor to get them that way.

The most likely scenario involves either taking notes by hand while reading information on the classified system and then turning those notes into an email sent on the unclassified system; or directly typing into an unclassified computer what one is reading or has read off the classified computer (either in real time or from memory), and then transmitting what has been typed via unclassified email. Another possibility is to conceal the classified markings on a physical document taken from the classified system, then scan the document into the unclassified system, after which the scanned copy (still the same classified information but with classified markings now removed) can be emailed.

This is to say: the most logical explanation for the removal of classified markings would be that the high official knows what she or he is doing is wrong; hopes the absence of markings will minimize the chances of being caught; and, if caught, has corruptly planned in advance to claim, “Look, the documents are unmarked. How could I have known they were classified?”

Mind you, we already know of one instance in which then-Secretary Clinton, impatient over the delay in receiving a classified fax over the secure system, instructed an underling (Jake Sullivan) to “turn it into nonpaper w no identifying heading and send nonsecure” – i.e., create a scanned electronic copy minus the original markings and send it on the nonsecure system.

“No classified markings” is more likely to be proof of misconduct than a valid defense for Mrs. Clinton and her underlings.

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