Media Matters, Hillary Clinton’s Pravda, argues rather lamely that those of us who have been noting that “foreign government information” — confidential communications from foreign governments — found in Clinton’s e-mails was classified from its inception are wrong. Amusingly enough, they reinforce my point in trying to rebut it.
MM quotes me from an appearance on Fox News earlier this week, where I explained that presidential Executive Order 13526 presumptively requires classification of foreign government information. I noted: “By executive order issued by President Obama in the beginning of his administration . . . the disclosure of foreign-government information — that is, communications from foreign governments that are intended to be held in confidence — is presumed to harm the national security, which is the threshold for classifying information.” (I’ve cleaned up the quote a bit to fix some tragic run-on spoken sentence structure.)
Media Matters then argues that “Classification Of Communication With Foreign Officials Is Not Mandatory Under 2009 Executive Order.” In support, they cite another part of the same executive order that provides that the various categories of classifiable information are to “be considered for classification if ‘its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security.’” Well, yes. But the executive order, as I noted in my appearance, also provides that foreign government information is the only category of classifiable information that is presumptively classified because the disclosure of that information is presumed to harm the national security. So as I have stated, the president has already made the determination that this information meets the national-security threshold for classification, which means it must be classified.
The State Department Foreign Affairs Manual reaches the same conclusion. First, it emphatically states (5 FAM 482.6) that “[f]or the Department and the Foreign Service, the most important category of national security information is foreign government information.” That information, it notes, “may be included in diplomatic notes, aide memoirs . . . telegrams, emails, or other documents reporting conversations with foreign government officials.” It may not always “bear any foreign government security classification” when transmitted to a U.S. official. But it nevertheless still requires protection. The recipient of the foreign government information – which in many of the emails we see is Hillary Clinton herself – “must provide a degree of protection for that information at least equivalent to that required by the foreign government or the international organization that provided the information.” That generally means classifying at the “Confidential” level or higher, depending upon the seriousness of the information.
In fairness, there is an exception to this rule. “When adequate to achieve the required protection, FGI may be handled under standards that are less restrictive than the safeguarding standards that ordinarily apply to U.S. ‘Confidential’ information, including modified handling and transmission and allowing access to individuals with a need-to-know who have not otherwise been cleared for access to classified information or executed an approved nondisclosure agreement.”
This exception obviously did not apply to the dozens of e-mails now retroactively marked classified as foreign government information. Nor, by virtue of the very nature of the conversations at issue, could they have fallen within this exception from the outset. To take one example, discussions with Benjamin Netanyahu about the Middle East peace process are obviously highly sensitive. And Hillary and her aides even recognized that sensitivity at times. In one e-mail exchange, her close assistant Jake Sullivan suggested that he talk with Clinton by secure line about conversations he had just had with Netanyahu, but then incongruously proceeds to summarize those same classified communications in an email. In another, Tony Blair does exactly the same thing – suggesting the need for a secure line, but nevertheless communicating on e-mail about conversations he had with Netanyahu. The point is that Clinton and her cohorts recognized the sensitivity of the information they were exchanging. Yet she continued to handle such information on her own unclassified email system. She never marked it and shared it with numerous people, such as her IT service providers (who had physical possession of her server), who had no need to know.
Once these foreign communications (like Blair’s summary of Netanyahu communications) end up on her e-mail system, it was up to Clinton and her staff to classify them and handle them with the appropriate level of care required of sensitive government secrets. So her defense that the communications were not marked as classified is simply an admission that she didn’t take the proper steps to mark them. As her own regulations plainly provided (5 FAM 582.10(f)) “foreign government information (FGI) requiring protection may appear in a foreign government’s documents with or without a security classification marking by that government. It is the responsibility of the recipient U.S. agency to mark such FGI requiring security classification protection with the appropriate level of U.S. security classification marking (emphasis added).” Having failed in that basic responsibility, Clinton has risked exposure of these confidential communications — the very stock in trade of our nation’s diplomacy — to untold numbers of hackers and foreign enemies. She cannot plausibly claim ignorance here.