Newly Released Email Shows Clinton Instructing Aide To Strip Header and Send Information Over Unsecured Lines After Objections Over Security
1, January 11, 2016 jonathanturley Criminal law, Politics, Society
  The e-mail scandal involving former secretary of state Hillary Clinton has continued to unfold, as we have been discussing. The number of classified emails have now grown to 1340. While the vast majority have low level classification, a few contained information classified at the secret level. This is not the first such allegation of someone stripping classification headers in scandal. The mishandling of classified information is a crime and the level of gross negligence in the use of the private server by Clinton is staggering. However, there has long been a good-faith debate over whether Clinton is being given a pass on a criminal investigation by the Obama Administration or whether her actions (while negligent) were not criminal in nature. A recent story could change that debate considerably. One of the emails released recently reportedly shows Clinton instructing an aide to strip off classification markings from a document and to send by unsecure means. Such an act could be charged as a criminal offense under federal classification laws.
The 2011 email could add significant pressure for the Obama Administration, even though the House Select Committee on Benghazi said that it is not investigating Clinton’s potential mishandling of classified data through her private, home-based email server.
The email from Jacob Sullivan tells Clinton that “They say they’ve had issues sending secure fax. They’re working on it.” Clinton responds by ordering “If they can’t, turn into nonpaper w no identifying heading and send nonsecure.” To remove classification headings from a classified document is usually treated as a very serious matter, though the level of the classification is not known.
Here is one of the pertinent provisions:
such as 18 USC 793:
d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
It is important to note that we do not know if the document was in fact classified or, if so, at what level. We also do not know if the aide followed the instructions, stripped the headers, and sent the information on the unprotected server. The concern raised about the transmission and reference to the headers would support the view of some classification level. Notably, this law covers any information “relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
At a minimum, the instructions raise a serious question of judgment in overriding such concerns about unsecure transmissions and circumventing protections for sensitive material. Having worked since the Reagan Administration with classified information, I remained floored by all of these allegations from the exclusive use of an unsecure personal server to this latest controversy of stripping headings and overriding security objections. I remain confused as to why this is even necessary for a high-ranking official who has a host of security officers who can supply classified material in proper form and under proper controls. I can understand (even if I strongly disagree with) the effect to retain control over communications by relying exclusively on a private server. However, stripping headers of classification markings (assuming that is what happened) would appear a case where simple convenience trumped national security protections for these officials.
Again, however, we will still need to see the classification level of the information to judge the gravity of the act. Telephone books can be classified as “confidential” even though information within the documents are public. What is surprising however is that such a high-ranking officials would send an email to strip markings rather than instruct aides to find an unclassified source.
What is equally perplexing is the expression of shock by Clinton that an aide was using a private email account despite her virtual exclusive use of a personal unsecure server. In another involving Jacob Sullivan, Clinton sends an email dated Feb. 27, 2011, expressing surprise that a State Department staffer was using a personal email account. The diplomatic officer named John Godfrey wrote a detailed summary of information about Libyan dictator Muammar Qaddafi that was forwarded to Clinton. Clinton responds by asking for whom Godfrey works. “Us,” Sullivan writes back. Clinton replies: “Is he in NEA [Near Eastern Affairs] currently? Or was he in Embassy? I was surprised that he used personal email account if he is at State.”
In addition to the Sullivan emails, there is a rising controversy over a Sidney Blumenthal email that many believe was derived from classified sources, including the highly sensitive intelligence generated from the National Security Agency. At the time, Blumenthal held no government position even though he was actively advising Clinton on a host of issues.
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