“I remain mystified by the fact that the use of a private e-mail account apparently went either unnoticed or unremarked upon during the four-year tenure in office of the former secretary” […] ”Simply put, where was everyone? Is there any record indicating that any lawyer, any FOIA officer, any records person, any high-level official ever respectfully confronted the former secretary with reasonable questions about the practice of sending e-mails from a private account? It is unfathomable to me that this would not have been noticed and reported up the chain.”
What are we learning from this first batch of emails?
1) The document dump is not arranged or ordered in any useful way. The emails from 2011 are mixed with 2012. Some of the emails are included more than once. Some of the redactions are rather odd, given that some of these emails were already published via the NYT. The former secretary of state is not referred to as HRC, only as “H.” The emails show an extremely small number of gatekeepers – Mills, Sullivan, Abedin, plus a couple of folks routinely asked to print this or that.
2) Sid, Sid, Sid — there are a good number of memos from “friend of S” or “HRC’s contact,” Sidney Blumenthal, who apparently had his own classification system. The memos he sent were marked “Confidential” although he was no longer a USG employee at the time he sent them and presumably, no classifying authority. Imagine the COM in Libya and NEA folks chasing down this intel stuff. Right. Instead of “OGA” for other government agency, State got “FOS”or “friend of S” as intel source.
3) “Pls. print” one of the former secretary of state’s favorite response to emails sent to her.
4) When former Secretary Clinton finally addressed the firestorm of her use of private email, she said: “I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two,” a self-assured Clinton told more than 200 reporters crowded into a U.N. corridor. (via Reuters). It looks like she had more than one email address, and we don’t know how many devices. The email below was sent from an iPad.
8) In November 2012, the House Intelligence Committee had a closed hearing that reportedly had the Director of National Intelligence James Clapper, Matt Olsen, Director of the National Counterterrorism Center, CIA Acting Director Michael Morell and the State Department’s Under Secretary for Management Patrick Kennedy. Those could be the Matt and Pat in this email:
9) There was a meeting at the WH Situation Room on Nov 26, 2:35 pm on Benghazi. The invitation was for the Secretary +1, and if she was unable to attend, an invitation for one representative only. The then Executive Secretary John Bass (now US Ambassador to Turkey) asked Mills if she’d prefer “Pat” to attend or “Dan.” Dan is State’s former counterterrorism guy, replied “Pat should go” in reference to Patrick Kennedy. Mills asked HRC if she’s good with Pat going and she replied “I think I should go w Pat.”
10) On December 17, 2012, then State Department spokesperson Victoria Nuland (now A/S for the EUR bureau) confirmed that the Accountability Review Board on Benghazi had concluded its work, and that the report went to Secretary Clinton that day (see ARB Concludes Work, Unclassified Report May Be Publicly Available on Wednesday). The following email is between Burns and Mills dated December 18, 2012. It mentions three names, Eric, Pat, and Greg Starr. We are guessing that the Eric in the email is Eric Boswell, the then Assistant Secretary of Bureau of Diplomatic Security, and Pat is the Under Secretary for Management. The portion referencing Greg Starr was redacted except for Burns’ “I like the Greg Starr idea.”
11) On December 20, 2012, the State Department’s two deputies, William Burns and Thomas Nides went before Congress instead of Secretary Clinton (see Clinton Recovering, Top Deputies Burns and Nides Expected to Testify Dec.20). Thank yous all around with HRC saying thank you to Burns and Nides. Thereafter, Cheryl Mills sent an email praising HRC’s email as being “so nice.” This was then followed with more thank yous from Nides and Burns.
12) So nothing surprising in the emails except the parts that may give some of us toothache. And the missing parts. This is only the first batch of emails although our understanding is that this constitutes the Benghazi-related emails. If that’s the case, it is striking that we see:
a) No emails here to/from Eric Boswell, the Assistant Secretary for Diplomatic Security.
c) No emails to/from Gregory Hicks who was Embassy Tripoli’s DCM at the time of the attack and who would have been attached by phone/email with Foggy Bottom (Hey! Are telephone conversations recorded like Kissinger’s?)
d) Except for an email related to one of the ARB panel member, there are no emails related to setting up the ARB, the process for the selection of ARB members, the assistance requested by the ARB, the support provided by the State Department to the panel, etc. What happened to those emails?
13) Then Secretary Clinton was using at least two emails from her private server according to these released emails. It does not look like anyone from the State Department could have just sent her an email by looking her up on the State Department’s Global Address List (GAL). But certainly, her most senior advisers including the experienced, career bureaucrats at the State Department must have known that she was using private email.
Seriously, no one thought that was odd? Or did everyone in the know thought it was beyond their pay grade to question the practice? Let’s imagine an entry level consular officer conducting official business using a private email server. How long would that last? Right.
So what happened there? Ugh! Pardon me? You were just doing your job? That CIA briefer also was just doing his job.
In the five-minute session with reporters, Mrs. Clinton also addressed questions about her exclusive use of a personal email address while at the State Department, saying she wanted the department to release the emails she had sent and received from her private account sooner rather than the estimated release in January 2016.
“They belong to the State Department, so the State Department has to go through its process,” Mrs. Clinton said. “But as much as they can expedite the process, that’s what I’m asking them to do.”
Because Mrs. Clinton exclusively used a personal email account while at the State Department, much of her correspondence has been shielded from federal records requests, creating a firestorm from Republicans investigating her handling of the 2012 attack on the United States mission in Benghazi, Libya.
By printing emails, Hillary Clinton forced the State Department to spend 5 weeks putting them back in digital form http://t.co/6Z2yTGc8hT
Someday, somebody will helpfully calculate the labor cost of 12 employees doing this for 5 weeks; something that could have been avoided if the responsible people were doing their jobs responsibly in the first place.
In any case, Congress has now threatened to benghazimazi the State Department funding, not all of it, just some, of course. Rep. Kay Granger (R-Texas), chairwoman of the House Appropriations subcommittee that oversees funding for State and foreign aid told The Hill that funding could be withheld from the agency’s programs and efforts “unless it relates to our own national security or our allies.” According to The Hill, GOP sources said divisions such as Legislative Affairs and Public Affairs and the Office of the Secretary could be affected. Whether this would be a tame who will blink first contest or a real pissing contest, remains to be seen.
About 350 pages of the Clinton emails obtained by The New York Times and now available online, represent about a third of the roughly 850 pages of emails from Secretary Clinton’s personal account that have been turned over to the Select Committee on Benghazi. The emails seemed to be all Sid, Sid, Sid, but there are also emails from the former Ambassadors to Libya, Chris Stevens (p.116, p.138, p.341) and Gene Cretz (p.70, p.346), former A/S for NEA Jeff Feltman (p.68, p.71), Cheryl Mills, State Department management go-to guy, Pat Kennedy (p.330), among others. Click here to read it or download the pdf file here.
That WSJ article above has this to say about the Keystone-related documents subject to FOIA and the rapid dominance doctrine in the halls of Foggy Bottom:
The Keystone documents Ms. Mills objected to were all either held back or redacted, the same person said. After Ms. Mills began scrutinizing documents, the State Department’s disclosure of records related to Keystone fell off sharply, documents that include a court filing show.
Two others with knowledge of State Department records procedures said political appointees were allowed greater say than the FOIA experts thought was appropriate. It was hard to push back against the political staff, one said.
The pipeline project was so sensitive that an expert on FOIA was invited to a State Department policy meeting to advise on how to prospectively shield documents from disclosure, such as by marking them as involving the “deliberative process,” said a person who attended.
That’s the infamous exemption for the “deliberative process,” otherwise known as the “b-5.” In early May, the Senate Judiciary Committee held a hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government.” Joyce Barr, the Assistant Secretary for Administration, as well as Chief FOIA Officer for the Department of State was one of the witnesses and made news for reportedly saying that Secretary Clinton’s use of a private email account for official business was “not acceptable.” Too late much?
One other witness at that hearing was Thomas S. Blanton, the Director of the National Security Archive at George Washington University. Below is from his prepared statement on the “b-5″ exemption, also known as the “withhold it if you want to” exemption.
One reason why FOIA does not work is the abuse of the most discretionary exemption in the FOIA, the fifth or “b-5” on deliberative process. This exemption also includes attorney-client privilege, and every lawyer in this room shivers at the idea of infringing on that. Yet, I would point out that the Presidential Records Act dating back to 1978 has eliminated the b-5 exemption as a reason for withholding records 12 years after the President in question leaves office. Through the PRA, we have conducted a 35-year experiment with putting a sunset on the deliberative process exemption, and the facts show us no damage has been done with a 12-year sunset. Yes, some embarrassment, such as the junior White House lawyer who vetted (and rejected) a certain Stephen Breyer for a Supreme Court nomination back in the 1990s. But no new spate of lawsuits. No re-opened litigation. No damage to the public interest. Embarrassment cannot become the basis for restricting open government. In fact, embarrassment makes the argument for opening the records involved.
According to Mr. Blanton, the Justice Department’s use of the “withhold it if you want to” exemption is at an all-time high this year, invoked 82,770 times to withhold records that citizens requested. The same exemption used by the CIA to withhold volume 5 of a 30-year-old internal draft history of the disaster at the Bay of Pigs. This is the same exemption used by the FBI to censor most of the 5,000 pages it recently “released” on the use of the Stingray technology to locate individuals’ cell phones. Apparently, this is the exemption that the administration also used to keep the Office of Legal Counsel final opinions out of the public domain according to Mr. Blanton.
At that time, there was a message from Mission Command:
“Good morning, Mr. Hunt (or whoever is available). Your mission, should you choose to accept it, involves the retrieval of all Special Government Employee (SGE) names. There are more than a hundred names but no one knows how many more. They are padlocked in the Privacy Act of 1974 vault, guarded by a monstrous fire-breathing creature from Asia Minor. PA1974 vault location is currently in Foggy Bottom. As always, should you or any member of your team be caught or killed, everybody with a badge will disavow all knowledge of your actions. This message will self-destruct in five seconds. If not, well, find a match and burn.”
In January 2014, without Mr. Hunt, the State Department finally released its SGE list as reported by ProPublica here . ProPublica concluded then that “the list suggests that the status is mostly used for its intended purpose: to allow outside experts to consult or work for the government on a temporary basis.” Which makes one wonder why it wasn’t readily released in the first place.
The recent Clinton email debacle, revived interest on Secretary Clinton’s use of the SGE program that allowed some political allies to work for the government while pursuing private-sector careers. In March, Sen. Charles E. Grassley (R-Iowa), who heads the Judiciary Committee was on it.
“The public’s business ought to be public with few exceptions,” Grassley said in a statement Saturday. “When employees are allowed to serve the government and the private sector at the same time and use private email, the employees have access to everything and the public, nothing.”
Senator Grassley’s request to the State Department, apparently not yet answered, is available here.
Last week, Senator Grassley received confirmation that the State Department Office of Inspector General will review the department’s use of the Special Government Employee program. Below is part of Senator Grassley’s statement:
“This program is meant to be used in a limited way to give the government special expertise it can’t get otherwise,” Grassley said. “Is the program working the way it’s intended at the State Department or has it been turned on its head and used in ways completely unrelated to its purpose? An independent analysis will help to answer the question. An inspector general review is necessary. Available information suggests that in at least one case, the State Department gave the special status for employee convenience, not public benefit.”
In response to Grassley’s request, State Department Inspector General Steve Linick confirmed his office “intends to examine the Department’s SGE program to determine if it conforms to applicable legal and policy requirements, including whether or not the program, as implemented, includes safeguards against conflicts of interest.”
Grassley is concerned about potential conflicts of interest arising from a top State Department employee, Huma Abedin, who worked for both the government as a Special Government Employee and an outside firm, Teneo, at the same time.
More about Ms Abedin’s consulting work here. Senator Grassley’s request to IG Linick is available here. IG Linick’s response to Senator Grassley is available here.
You get the feeling that State/OIG is the most wanted office in WashDC these days?
“…our problems have never respected dividing lines between global economics and international diplomacy. And neither can our solutions. That is why I have put what I call economic statecraft at the heart of our foreign policy agenda.”
–Secretary of State Hillary Rodham Clinton
Of the 425 large corporate donors to the Clinton Foundation, the Wall Street Journal found 60 of those donors lobbied the State Department during Hillary Clinton’s tenure. Excerpt:
Mrs. Clinton’s spokesman, Nick Merrill, says: “She did the job that every secretary of state is supposed to do and what the American people expect of them—especially during difficult economic times. She proudly and loudly advocated on behalf of American business and took every opportunity she could to promote U.S. commercial interests abroad.”
Corporate donations to politically connected charities aren’t illegal so long as they aren’t in exchange for favors. There is no evidence of that with the Clinton Foundation.
In some cases, donations came after Mrs. Clinton took action that helped a company. In other cases, the donation came first. In some instances, donations came both before and after. All of the companies mentioned in this article said their charitable donations had nothing to do with their lobbying agendas with Mrs. Clinton’s State Department
The New York Times also posted the letter from the former secretary of state’s lawyer David E. Kendall to House Chairman Trey Gowdy. Excerpt below:
There is no basis to support the proposed third-party review of the server that hosted the firstname.lastname@example.org account. During the fall of 2014, Secretary Clinton’s legal representatives reviewed her email@example.com account for the time period from January 21, 2009 through February 1, 2013. After the review was completed to identify and provide to the Department of State all of the Secretary’s work-related and potentially work-related emails, the Secretary chose not to keep her non-record personal e-mails and asked that her account (which was no longer in active use) be set to retain only the most recent 60 days of e-mail. To avoid prolonging a discussion that would be academic, I have confirmed with the Secretary’s IT support that no e-mails from firstname.lastname@example.org for the time period January 21, 2009 through February 1, 2013 reside on the server or on any back-up systems associated with the server.
Page 8 of this 9-page document includes a letter from the State Department’s Under Secretary for Management Patrick Kennedy:
We understand that Secretary Clinton would like to continue to retain copies of the documents to assist her in responding to congressional and related inquiries regarding the documents and her tenure as head of the Department. The Department has consulted with the National Archives and Records Administration (NARA) and believes that permitting Secretary Clinton continued access to the documents is in the public interest as it will help promote informed discussion.
Accordingly, Secretary Clinton may retain copies of the documents provided that: access is limited to Secretary Clinton and those directly assisting her in responding to such inquiries; steps are taken to safeguard the documents against loss or unauthorized access; the documents are not released without written authorization by the Department; and there is agreement to return the documents to the Department upon request. Additionally, following counsel, we ask that, to the extent the documents are stored electronically, they continue to be preserved in their electronic format. In the event that State Department reviewers determine that any document or documents is/are classified, additional steps will be required to safeguard and protect the information.
The entire Kendall-Gowdy letter is available to read here.
Because it’s Friday, there is also this item from Gawker and ProPublica adding a stranger twist to this email saga.
Secret spy network funneled intelligence about crisis in Libya directly to Sec State Clinton’s private email account http://t.co/eMHBfYpV4y — ChrisHerter’s BowTie (@ColdWarBowTie) March 27, 2015
In related news, remember when Michael Schmidt broke the NYT story about Secretary Clinton’s exclusive use of a personal email account during her entire tenure as Secretary of State? That was on March 2. On March 25, Secretary Kerry finally asked the Office of Inspector General to review email and record retention at his agency. The letter Secretary Kerry sent to IG Steve Linick is available to read here (pdf).
Kerry asks IG for review of State’s email & records policies, but does not seek specific focus on Clinton’s practices http://t.co/1Lvtv2Vy06
The hunt for Secretary Clinton’s OF-109 Separation Statement was all over the news last week, although it seemed, oh, so much longer. Fox News was searching for it. The Daily Caller found a whistleblower who alleged double standard. Media Matters called out the conservative media’s own double standard. Add the official spokesperson of the State Department and we got a free roller coaster ride plus coupons.
It looks like 12 FAM 564.4 is the relevant regulation um, excuse me, “recommendation” in the Foreign Affairs Manual. Waiting for the spox to clarify that although the briefing is mandatory, signing the separation statement is really optional and voluntary!
12 FAM 564.4 Termination (TL:DS-88; 02-13-2003) (Uniform State, AID, OPIC, TDP) a. A security debriefing will be conducted and a separation statement will be completed whenever an employee is terminating employment or is otherwise to be separated for a continuous period of 60 days or more. The debriefing is mandatory to ensure that separating personnel are aware of the requirement to return all classified material and of a continuing responsibility to safeguard their knowledge of any classified information. The separating employee must be advised of the applicable laws on the protection and disclosure of classified information (see 12 FAM 557 Exhibit 557.3) before signing Form OF-109, Separation Statement (see 12 FAM 564 Exhibit 564.4).
QUESTION: So when you say – it is my understanding that all employees – and I think you even alluded to this when it first came up, that all employees were required to sign this document on completion of their government service. Is that not the case?
MS. PSAKI: Required is not the accurate term. It’s – we’re looking into how standard this is across the federal government and certainly at the State Department. But there’s no – we’re not aware of any penalty for not signing it.
QUESTION: Well, at the State Department, though, is it – it is common practice, though, is it not, for employees, at least employees below the rank of Secretary of State to sign such a thing – to sign such a document when they leave? Is it not?
MS. PSAKI: Well, I just don’t want to characterize how common practice it is. Certainly, I understand there’s been a focus on this form. We’ve answered the question on whether or not Secretary Clinton signed the form, and we’ll see if there’s more statistics we can provide about how common it is.
QUESTION: It’s your understanding, though, that not completing this form is not a violation of any rule or regulation?
MS. PSAKI: It’s not a violation of any rule, no.
QUESTION: And when you said that you have found no record of her two immediate – was it her two immediate predecessors?
Marc Perkel who runs a spam filtering service has an interesting addition to the Clinton email saga, something to do with what happens to emails that go through a spam filtering service. But he also wrote this:
But – and this is a very important point – is HOW the emails were turned over. She printed each one out on paper one by one and handed over boxes of paper with the email printed. Thus those email can’t be searched electronically. So if someone wants all emails to some individual or emails about a subject then someone has to hand search these emails and they are likely to miss something.
It would have been far easier to copy all the emails onto a thumb drive and hand that over to the State Department where they could be electronically imported into the system and electronically searchable like all the other emails are. But she chose to go to great trouble to deliberately make things difficult for the State Department to process those emails. And that indicates an act of bad faith. She’s just giving all of us the virtual finger.
This from a a guy who writes that if Clinton is the candidate, he “would still vote for her in the general election over any Republican.”
When asked why these documents were not provided to State in electronic format for better searchability, the official spox said, “Well, there is some long precedent here for how this is done.” I don’t know what kind of precedent she is talking about. Has anyone ever had to produce 55,000 pages of emails before from a private email server? How do you search that? Control+D for smart not?
This is basically 110 reams of paper at 500 sheets per ream, or 11 bales of paper. And if the Clinton folks instead used a thumb drive for these 55,000 pages of email, it probably could have spared a tree or two!
Reseed’s strategy is prevention and remediation — not only can we curb deforestation by encouraging consumers and retailers to adopt e-receipts, but we can also reverse some of the damage with the money saved. Forgoing 55,000 receipts can spare an entire tree, and it only takes a dollar in donations for Reseed to plant a tree.
The ACLU writes that the politics swirling around the Clinton email scandal obscure real problems:
As the Committee for Responsibility and Ethics in Washington has documented at length, various Bush White House officials used Republican National Committee accounts to communicate with Attorney General Alberto Gonzales in what would become the scandal over the hiring and firing of United States attorneys that the Department of Justice later found to be the inappropriately politicized.
The decision by Secretary Clinton to use “clintonemail.com” exclusively for official business disregards these historical examples. Unfortunately, officials can face the strong temptation to hide official business out of the reach of Freedom of Information Act requests. And as the new retention rules recognize, that’s unacceptable for our democracy.
On March 17, twelve open government organizations also wrote a letter to Secretary Kerry and David S. Ferriero, the Archivist of the United States asking that the Clinton emails containing federal records be transferred to the Department of State in their original electronic form:
Because it is of the utmost importance that all of former Secretary Clinton’s emails are properly preserved and transferred back to the State Department for accountability and historical record purposes, we are asking that you verify that Secretary Clinton’s emails containing federal records are transferred to the Department of State in their original electronic form, so that all such emails may be accessible pursuant to the Freedom of Information Act. The Archivist and State Department are authorized by the Federal Records Act to seek the recovery of records that may have been improperly removed, and the task of determining which emails constitute federal records should not be left solely to Mrs. Clinton’s personal aides. Rather, the Archivist and State Department should oversee the process to ensure its independence and objectivity. To the extent that it is ascertained that any record emails were deleted, they should be retrieved if technically possible.
The letter available online here (pdf) was signed by Cause of Action, Defending Dissent Foundation, Electronic Frontier Foundation, MuckRock, National Coalition for History, National Security Archive, National Security Counselors, OpenTheGovernment.org, Pirate Times, Project on Government Oversight (POGO), Society of Professional Journalists and The Sunlight Foundation.
Dan Metcalfe spent more than thirty years working at the U.S. Department of Justice where he served from 1981 to 2007 as director of the Office of Information and Privacy. He was responsible for overseeing the implementation of the FOIA throughout the entire executive branch. He now teaches secrecy law at American University’s Washington College of Law. His deconstruction of the former secretary of state’s explanation on her exclusive use of private email is probably the best one we’ve seen so far. There is also an analysis here from the National Security Archive.
Below is an excerpt from the op-ed piece Mr. Metcalfe wrote for Politico:
[T]here is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home. This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act)—or both.
[…] as Secretary Clinton might like to claim personal “credit” for this successful scheme when talking with her friends about it within the privacy of her own home—perhaps while leaning against her private Internet server in her basement—the fact is that she didn’t invent this form of law circumvention; she just uniquely refined it. Yes, it was the Bush administration—specifically, the White House Office of Administration in concert with Vice President Dick Cheney, Karl Rove and the Republican National Committee—that likewise succeeded with wholesale email diversion back in the pre-smartphone days of freewheeling Blackberry usage.
Unfortunately for all of us, the competition for perverse “honors” in the world of circumventing both the letter and the spirit of federal records laws is indeed quite stiff.
Then there’s this guy who in 1994 was a 22 year old who worked as a computer programmer for a company called Information Management Consultants tasked with sorting through presidential docs in 1993. He wondered if the Clinton team included technical wizards who designed a flawless keyword search when combing through her emails:
If so, she should release technical documentation of the search algorithm, the test procedure, and the test results — assuming they tested it. Without that information, we have no basis for sharing Hillary Clinton’s “absolute confidence” that the State Department has received all her work-related email communication.
Hey, wouldn’t it be nice to know who should get a large medal for being asleep at the switch at the State Department on this? Asleep at the switch doesn’t sound very good but perhaps it is a kinder version for whatever it was that happened at HST.