The Weekly Sift

On the Right, it is an article of faith that Hillary Clinton’s use of a private email server while she was Secretary of State involves her in crimes that deserve a jail term; either she will be indicted by the FBI or (if not) President Obama somehow is protecting her from indictment. Donald Trump has said “Hillary Clinton has to go to jail.” and “Anything Obama wants, she’s going forward with because you know why? She doesn’t want to go to jail.”

More recently, as it became clear that Clinton would be nominated, some Bernie Sanders supporters began expressing similar hopes: that legal troubles would take Clinton off the board, leaving the nomination for Sanders. Sanders himself has not gone that far, but has urged voters and delegates to “take a hard look” at the report of the State Department Inspector General.

One small place the Clinton/Sanders debate has been playing out is in the comments on this blog, and I have started getting criticism for ignoring or minimizing the issue, particularly the more recent developments. [1] So I thought I’d read the Office of the Inspector General’s report and other well-informed commentary on the Clinton’s emails and report.

What it’s all about. The OIG report says:

Secretary Clinton employed a personal email system to conduct business during her tenure in the United States Senate and her 2008 Presidential campaign. She continued to use personal email throughout her term as Secretary, relying on an account maintained on a private server, predominantly through mobile devices. Throughout Secretary Clinton’s tenure, the server was located in her New York residence.

Instead, she should have used a State Department email account for official business while she was Secretary of State. I don’t think anyone disputes that basic description of the situation. The entire argument is about how serious the issue is.

Separable concerns. The first thing to understand about Clinton’s emails is that there are two separate and more-or-less opposite concerns: security (i.e., keeping information in) and transparency (letting information out).

Most articles about the emails wander from one concern to the other, sometimes irresponsibly. But it makes no sense to jump from an OIG quote about Clinton breaking transparency rules to a charge that she has put the nation’s security at risk. Either, neither, or both might be true, but they are completely different issues.

We won’t know exactly what the FBI is investigating until they tell us, but indications are that they are focused on the security of classified information. If so, then the OIG report is almost a perfect complement: It focuses mainly on transparency; to the extent it discusses security at all, it talks about sensitive-but-unclassified information, which I assume includes things like personnel records.

Transparency. The OIG report is deadly dull to read, because it’s mainly a recent history of record-keeping at the State Department. Clinton is a central figure, but the sweep is much broader.

The report paints a picture of a common bureaucratic problem: The government has good intentions about keeping complete records. Some of those intentions have been written into laws like the Federal Records Act. The National Archives and Records Administration (NARA) has issued government-wide regulations for meeting the legal requirements, and the State Department, like other departments and agencies, has created policies and procedures that (if followed) should fulfill the NARA regulations.

Unfortunately, though, State (like much of the government) never finds the money to create an up-to-date, usable record-keeping system, particularly with regard to modern forms of communication like email. So proper record-keeping is cumbersome, and employees are left with a conflict between following the proper procedures and getting their jobs done.

According to a 2010 U.S. Government Accountability Office (GAO) report, most agencies do not prioritize records management, as evidenced by lack of staff and budget resources, absence of up-to-date policies and procedures, lack of training, and lack of accountability. In its most recent annual assessment of records management, [the National Archives and Records Administration] identified similar weaknesses across the Federal Government with regard to electronic records in particular. NARA reported that 80 percent of agencies had an elevated risk for the improper management of electronic records, reflecting serious challenges handling vast amounts of email, integrating records management functionality into electronic systems, and adapting to the changing technological and regulatory environments.

You might think that just using the State Department email system would be enough to insure compliance, but no.

Several staff mentioned preserving emails by saving them in their Department email accounts. However, as previously noted, NARA regulations state that agencies may only use an electronic mail system to store the recordkeeping copy of electronic mail messages identified as Federal records if that system contains specific features; the current Department email system does not contain these features.

There’s a separate program for making sure emails get properly recorded, but most people don’t use it.

However, prior OIG reports have repeatedly found that Department employees enter relatively few of their emails into the SMART system and that compliance varies greatly across bureaus, in part because of perceptions by Department employees that SMART is not intuitive, is difficult to use, and has some technical problems.

So working around the system in one way or another has been common.

OIG also reviewed an S/ES-IRM report [don’t worry about the acronym, it looks to be State’s information technology office] prepared in 2010 showing that more than 9,200 emails were sent within one week from S/ES servers to 16 web-based email domains, including gmail.com, hotmail.com, and att.net. S/ES-IRM told OIG that it no longer has access to the tool used to generate this particular report. In another instance, in a June 3, 2011, email message to Secretary Clinton with the subject line “Google email hacking and woeful state of civilian technology,” a former Director of Policy Planning wrote: “State’s technology is so antiquated that NO ONE uses a State-issued laptop and even high officials routinely end up using their home email accounts to be able to get their work done quickly and effectively.”

Previous secretaries of state worked around the system in different ways. Colin Powell used a mixture of personal and official email, while Condoleezza Rice didn’t use email at all. (I’m having trouble imagining how you run a department without email, but somehow she managed it.) Clinton defenders who say that Powell did exactly the same thing as Clinton are exaggerating, but it’s true that no previous secretary had found a way to use email while fully complying with the official procedures.

Nobody worked around the system quite as completely as Secretary Clinton did, and in doing so she undoubtedly violated State Department policies. It’s possible she was in violation of a law against removing government records, though she claims the government still had all her correspondence because the people she was writing to were on government servers. (As we’ve seen, NARA wouldn’t consider that adequate.) She has since sent the government printed copies of her business emails, filtering them out from her personal emails, which were on the same server. (Though critics wonder if she filtered properly.)

But departmental policy is not the same as law, so it’s still iffy whether there’s a technical legal violation related to the FRA. Even if there is, prosecuting for it would be unheard of. The OIG report gives the example of an ambassador to Kenya:

the Ambassador continued to use unauthorized systems to conduct official business [after being told not to]. The Department subsequently initiated disciplinary proceedings against him for his failure to follow these directions and for several other infractions, but he resigned before any disciplinary measures were imposed.

That response — no legal charges, but internal discipline that vanishes when someone leaves State — seems to be how these things are typically handled.

Security. Another point that doesn’t get enough attention in the media is that the State Department’s email system does not have sufficient security to allow classified discussions. Classified discussions require use of a different messaging system, which can only be accessed from secure locations. (I’m wondering whether this system is the one whose messages Chelsea Manning released to the world, but I haven’t verified that.)

So, completely independent of whether Clinton’s email files were stored on her personal server or the State Department’s, those files are not supposed to contain classified information. If they do, there’s been a security violation before the email gets to the server.

In other words, if you’re worried about documents stamped TOP SECRET getting attached to emails and winding up on a hard drive in Clinton’s basement, stop. That’s not how State is supposed to operate or did operate.

The potential security violations we’re hearing about are almost all of the incidental or accidental variety: Somebody (usually not Clinton, but the person writing to her) should have known that certain information ought to be classified, but mentioned it in email anyway. [2] Or an email contained information that the State Department considered unclassified at the time, but was later classified by some other agency.

Politics and sources. Before going into detail about specific alleged violations, another thing to understand is that all our windows into the FBI investigation are distorted by politics. The FBI has not issued any official reports on Clinton’s emails and is not briefing the press directly. But it sometimes briefs members of Congress about what it has been finding, and that information sometimes gets leaked to the press.

So most of the news articles about the FBI investigation into Clinton’s emails are based on leaks from Republican congressmen, who may slant their assessments or cherry-pick their quotes because they want to make Clinton look bad. Whenever a story mentions “congressional sources”, that generally means “Republicans”.

As a result, there has been a string of sensational “scoops” that subsequently had to be walked back as more accurate versions came out. (One report that 147 FBI agents were involved in the investigation — making it a Public Enemy #1 scale effort — eventually got reduced to less than 12.) As always, the sensational version sticks in the public mind even after it has been debunked. This is particularly true within the conservative echo chamber.

Recent revelations. This week the The Wall Street Journal published an article (sourced to anonymous “congressional and law-enforcement officials”) describing top-secret information allegedly found on Clinton’s server. These were email exchanges between lower-level State Department officials that got forwarded to Clinton. (I found no claim that Clinton participated in the exchanges.)

The circumstances are worth understanding: The U.S. regularly launches drone strikes in Pakistan without the official consent of the Pakistani government. This fact itself is considered top secret (even though everyone knows it), and plans for specific drone strikes are top secret, for obvious reasons. (If news about the strike got out beforehand, whoever we were trying to attack could get away.)

As you can imagine, the drone program is not popular inside Pakistan. Protests from Pakistani officials got more and more intense, and the State Department was the official channel for receiving these protests. So eventually, officials at State were given prior warning of drone strikes.

The CIA initially chafed at the idea of giving the State Department more of a voice in the process. Under a compromise reached around the year 2011, CIA officers would notify their embassy counterparts in Islamabad when a strike in Pakistan was planned, so then-U.S. ambassador Cameron Munter or another senior diplomat could decide whether to “concur” or “non-concur.” Mr. Munter declined to comment.

Diplomats in Islamabad would communicate the decision to their superiors in Washington. A main purpose was to give then-Secretary of State Clinton and her top aides a chance to consider whether she wanted to weigh in with the CIA director about a planned strike.

Drone strikes are time-sensitive events, because the terrorist leaders they target move around a lot. So if State was going to object, it had to do so quickly. And now we once again run into the limitations of State Department systems.

The time available to the State Department to weigh in on a planned strike varied widely, from several days to as little as 20 or 30 minutes. “If a strike was imminent, it was futile to use the high side, which no one would see for seven hours,” said one official. [3]

Adding to those communications hurdles, U.S. intelligence officials privately objected to the State Department even using its high-side system. They wanted diplomats to use a still-more-secure system called the Joint Worldwide Intelligence Community Systems, or JWICs. State Department officials don’t have ready access to that system, even in Washington. If drone-strike decisions were needed quickly, it wouldn’t be an option, officials said.

So once again, we see people facing a choice between following proper procedures and getting their jobs done. On at least a few occasions, then, discussions about drone strikes happened over insecure email channels.

One such exchange came just before Christmas in 2011, when the U.S. ambassador sent a short, cryptic note to his boss indicating a drone strike was planned. That sparked a back-and-forth among Mrs. Clinton’s senior advisers over the next few days, in which it was clear they were having the discussions in part because people were away from their offices for the holiday and didn’t have access to a classified computer, officials said.

I interpret “cryptic” to mean that the officials tried to be oblique in their references, so that anyone who might intercept the email wouldn’t immediately know what they were talking about. (I picture something like Tony Soprano’s phone conversations, or the ones KGB agents have on The Americans.) This is not considered an acceptable technique for securing classified information, but it seems to have worked.

U.S. officials said there is no evidence Pakistani intelligence officials intercepted any of the low-side State Department emails or used them to protect militants.

The WSJ article also notes that this kind of corner-cutting happens from time to time all over the government.

Several law-enforcement officials said they don’t expect any criminal charges to be filed as a result of the investigation, although a final review of the evidence will be made only after an expected FBI interview with Mrs. Clinton this summer.

One reason is that government workers at several agencies, including the departments of Defense, Justice and State, have occasionally resorted to the low-side system to give each other notice about sensitive but fast-moving events, according to one law-enforcement official.

So: Rules were broken, but not with malicious intent, and apparently without bad consequences. The most serious violations were not by Clinton, but the record of that rule-breaking is on her server and shouldn’t be. If the WSJ article is accurate, prosecuting anyone for these incidents would be highly unusual, and Clinton would not be at the top of the list.

---

[1] Here’s where I’m coming from: I voted for Sanders in the New Hampshire primary and have been raising many of his signature issues — inequality, campaign finance, etc. — for several years. But I have criticized the anti-Clinton turn in Sanders’ rhetoric. And I have been increasingly disenchanted with his campaign’s tendency to turn the ordinary politics of a presidential contest into a persecution narrative, one that unifies the media, the Democratic Party, election officials, and everybody else who isn’t 100% for Bernie into a sinister Clinton-supporting “Them”.

[2] If you’ve ever worked someplace that handles classified information (I used to and my wife still does), you know that such technical violations of security are not that unusual, because the boundary between what can and can’t be said in certain places to certain people can be hazy. (I’ve heard many face-to-face conversations end with: “But we probably shouldn’t be talking about this.”) Also, while any idiot should know not to mention the names of spies or technical details of weapons systems, a lot of stuff gets classified that really isn’t that important. That kind of information sometimes slides into conversations without anybody noticing.

[3] The article does not speculate about this, but I wonder if the CIA ever gamed the system: By picking particularly inconvenient moments to notify State and leaving very small time windows, they might make it harder for State to interfere with their plans.