What Hillary Clinton Has in Common With NSA Whistleblowers

In a Tuesday New Yorker piece, Jeffrey Toobin sets the Hillary Clinton email scandal in the context of our government’s out-of-control secrecy system (which we detailed in this 2011 report). This controversy, as my colleague Gabe Rottman observed when it first broke, “highlights the incoherence and unfairness of existing classification policies,” such as its differential application to government insiders and outsiders.

But Toobin also points out that part of the reason that Clinton has ended up in morass of controversy is that “the definition of what constitutes a government secret has never been clear”—and that not only does the public have no way of knowing what is classified, but classified information is not necessarily marked as such and “realistically, government officials can't know either—and this is Hillary Clinton’s problem.” The result for her is that the investigation is likely to drag on, he says.

In short, the vagueness and lack of definition of the secrecy regime, as well as the tendency of secret classifications to spread like cancer through government information systems, has tripped her up. And because she is a national political figure running for president—in short, someone who has a lot of people gunning for her—that regime will provide lots of fodder for her enemies. She has faced justified criticism over what appears to have been an effort to evade systems designed for government openness—using a private email account for official business—but if she is now enmeshed in an ongoing morass with this issue, it is at least in part because of the nature of our classification system.

Our classification system has spun so far out of control, and is such a morass of often vague and unknowable determinations, that it has become one of those areas of law (along with tax law, perhaps, and immigration law) that is so complex that non-specialists cannot hope to understand it. That opaqueness greatly increases the amount of discretion involved in interpreting what is and is not compliant—and that means that if somebody is out to get you, they've got a lot of raw material that can be shaped to do so.

Numerous government whistleblowers have found this out. Former NSA executive Thomas Drake, for example (whose case was itself the subject of an extensive New Yorker profile by Jane Mayer as well as a segment on 60 Minutes), came into the crosshairs of the national security establishment for criticizing his agency and was persecuted via an espionage prosecution after a search of his house in which, as Mayer put it, the FBI “bagged documents, computers, and books, and removed eight or ten boxes of office files from his basement.” From that hoard, they identified a couple of documents they alleged were classified.

One document... was marked “unclassified/for official use only” and posted on the N.S.A.’s internal Web site. The government has since argued that the schedule should have been classified, and that Drake should have known this. The other document, which touted the success of [NSA program] Turbulence, was officially declassified in July, 2010, three months after Drake was indicted.

Several other NSA whistleblowers, meanwhile, also had their homes raided, including former Congressional staffer (and NSA overseer) Diane Roark. Of her raid, Mayer writes:

The agents seemed to think that the commercial pitch contained classified information. Roark was shaken: she and the others thought they had edited it scrupulously to insure that it did not. Agents also informed her that a few scattered papers in her old office files were classified. After the raid, she called her lawyer and asked, “If there’s a disagreement on classification, does intent mean anything?”

Intent is, in fact, an important requirement in most criminal secrecy prosecutions, and is why Toobin argues that Clinton is not likely in legal (as opposed to political) jeopardy over her State Department emails. Still, it’s ironic that Clinton is finding herself in some of the same territory as the NSA whistleblowers, given that she has been unfairly critical of Edward Snowden. Clinton does not yet seem to have grasped the collapse in legitimacy of the U.S. secrecy system that has been behind recent whistleblower and leak cases. It is possible to simultaneously recognize that Clinton deserves blame for what appears to be an effort at limiting accountability, but has also been caught up by an unfair and dysfunctional classification system that stands at the ready as a weapon to be wielded against whistleblowers and other insiders who lose the good graces of the national security state.

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Clydeskillareb

How utterly convenient now for the Hillary camp, with YOUR misguided assistance can employ the premise that what is Classified...is NOT;and, on the other hand, what is NonClassified
can not be discerned or distinguished from what IS. A perfect defense for this lady who willfully exposed our secrets to the whole world by using an OPEN server...forget about Classified or not...everything on that server was exposed.

Anonymous

actually, it was a secure server......has not been hacked, as opposed to many government servers that were

Ross

Great article except it's also used against government "outsiders" also. Government agencies penalize "Letter to the Editor" writers and those that write their member of Congress - government outsiders exercising proper and legal First Amendment exercises. (Ex: CoinTelPro and other blacklisting programs/tactics).

Ole' Hippy

Whistle blowers almost never get treated fairly, it's so easy to judge until one is caught in the system too. It's only fair if ALL are treated the same, not just the privileged few. How quick can the hammer fall on one trying to do what's right because they can't live with themselves without speaking up. The whole system's broke and there are too many secrets anyway, they need to be out in the public domain. I hope that the lesson will be learned and the e-mail's will be done according to policy.

Kubilay Uner

And just as I was slowly considering renewing my financial support for the ACLU, here you come out as apologists for one of the most powerful people in the US, who clearly and knowingly evaded safeguards designed to ensure that power is accountable to the people. Much like MSNBC or Fox had to decide whether they want to be agents of journalism or propaganda (and clearly came down on the latter), the ACLU has to decide once and for all whether it wants to defend civil liberties, or be an ideological agent. Until you squarely come back to your original (and vital) mission, which unfortunately currently counts for only about half of your activities, I will continue to refuse to support your efforts. The ACLU used to be indispensable, and in fact still would be - no other org has filled the void. I wish you would realize that principled defense of civil liberties means no room for ideological exemptions.

dryangore

Well if the emails weren't public knowledge to America's enemies before, they probably are now considering that not only did the State Department release them (albeit with redacted information), but simply the large rise in public awareness about the existence of these emails. Also when an investigation such as this is undertaken, often copies of the data are created in order to facilitate investigation. This adds more sources of the information of which America's opposition can potentially focus their online attacks. The fact is that the emails, before this time, were probably not at risk of ever falling into the wrong hands due to the fact that they were obfuscated from view. This is because they were not in a place where a potential online attacker would probably look. They would be focused on ip addresses associated with the government.

btw, not a Clinton fan, just think it's absurd that they are making such a big deal about this when the more important security infrastructure (on the www) like that of the FBI, CIA, military bases, etc... is such a mess. (I have a computer science degree).

C_more

Great pro-Hillary post! Holding one of the highest positions in the world and nothing she emails is worthy of classification, nothing she created is classified. Nothing was classified when it passed through her hands, but is years later?

Your post only supports one side of an argument and that she didn't know. Her position clearly indicates that she should have known.
An intelligent person in a sensitive position wouldn't develop plans for some new WMD. Then disseminate the plans to some foreign government(s) just because they hadn't yet been classified.

The argument that her private server wasn't hacked and the documents therefore remained secure doesn't hold water, They
were still mishandled. We don't KNOW that her server wasn't hacked and since she went to great lengths to have it "wiped" clean, we may never know.

Anonymous Insider

Having done some work for the State Department as a subcontractor, I can tell you that there is not a whole lot that can be emailed through a non-government server. If there is a who, what, when, where or how that is not general public knowledge, chances are it will be assigned some level of classification until vetted otherwise.

Hillary Clinton used her own private server to have complete control over her email records because she knew she was going to run for President again. I don't buy that she didn't know any better and I don't buy that she exclusively used her private email because carrying around two devices was too much of a hassle.

Hillary Clinton thinks we are all stupid and that laws are for little people.

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