On July 22, The Hill reported that the Gowdy committee investigating the 2012 Benghazi attacks announced it has called on one of Secretary of State John Kerry’s top aides to appear this week. The panel apparently wanted Jon Finer, Kerry’s chief of staff, to appear on July 29th to discuss the State Department’s compliance with the panel’s investigation.
Late on July 27, The Hill reported that the State Department has agreed to release 5,000 pages of documents to the House Select Committee on Benghazi tomorrow, July 28. This document release temporarily cancels Mr. Finer’s appearance before the panel but chairman Trey Gowdy (R-S.C.) has not ruled out any future appearance.
The new document dump comes after a standoff between the State Department and the House panel, which had previously ordered a top aide to Secretary of State John Kerry to testify on Wednesday.
After the department committed to releasing the 5,000 new pages to the committee, the hearing with that aide — Kerry’s chief of staff, Jon Finer — will be postponed until after Kerry has completed a marathon string of briefings and hearings to sell the international nuclear deal with Iran.
“If the State Department does not fulfill this production, or if production continues to be anemic and underwhelming, we will move forward with scheduling a compliance hearing before the committee,” he added.
The Hill State Dept to release 5,000 pages to Benghazi panel: The State Department has agreed to release 5,000… http://t.co/Rq0Cb88AHq
This happened Thursday night. We drafted this post early morning but waited for a piece of information we wanted to see. So yup, overtaken by events. In any case, you may now read the inspector generals memos referenced to in the NYT report here. See NYT: Criminal Inquiry Sought Over Clinton Emails? Read the Inspector Generals Memos. We’re also waiting for the OIG to issue a clarification on the DOJ referral the NYT reported.
The memos went possibly from two IG offices — State Department Steve Linick and Intelligence Community Inspector General I. Charles McCullough, III — to the Under Secretary for Management Patrick Kennedy. The IGs memos are also cc’ed to one of the State Department’s deputy secretaries. It looks like, the memos or contents/snippets of it were shared with DOJ, as a DOJ official appears to be the NYT’s source for this story (see tweets below).
— 1. The memos were provided to The New York Times by a senior government official.
— 2. The inspectors general also criticized the State Department for its handling of sensitive information, particularly its reliance on retired senior Foreign Service officers to decide if information should be classified, and for not consulting with the intelligence agencies about its determinations.
— 3. The revelations about how Mrs. Clinton handled her email have been an embarrassment for the State Department, which has been repeatedly criticized over its handling of documents related to Mrs. Clinton and her advisers.
— 4. Some State Department officials said they believe many senior officials did not initially take the House committee seriously, which slowed document production and created an appearance of stonewalling.
— 5. State Department officials also said that Mr. Kerry is concerned about the toll the criticism has had on the department and has urged his deputies to comply with the requests quickly.
On this whole email debacle at the State Department, it must be said that this might not have happened if not enabled by senior bureaucrats in the agency. We do not believe for a moment that senior officials were not aware about the email practices of then Secretary Clinton or the record retention requirement. But hey, if the practice was done for four years over the protests and dissent of officials at “M”, “A”, the Legal Adviser or the CIO, we’d like to see that email trail.
By the way, this NYT report follows a July 20 Politico report about a contentious hearing where U.S. District Court Judge Richard Leon demanded explanations for why some of the Associated Press’ FOIA requests received no reply for four years or more before the wire service filed suit in March.
“The State Department’s not going to have the luxury of saying, because we’re focusing on Hillary’s emails, we’re doing so at the cost and expense of four-year-old requests. So, that’s not going to be an excuse,” the judge said. “In my judgment, a four-year-old request gets a priority over a recent request.”
On Mr. Kerry’s concern about the toll the criticism has had on the department … the secretary is right to be concerned. Senior officials did not take Congress seriously? Even if senior bureaucrats do not agree or approve of the conduct of the Select Committee, even if they think this is a sideshow seeking to derail a presidential campaign, the required document production is still part of their jobs. In my view, the most serious consequence on the appearance of stonewalling is it also gives the appearance that bureaucrats are picking sides in this political shitstorm.
This can potentially undermine the expectation of the State Department as an impartial and non-political entity. The perception, right or wrong, that this impartiality is compromised, will not serve it or its employees well in the long run.
Not too long ago, State Department EFM Jen Denoia wrote about the reasonable expectation of family members to have access to the department’s online resources:
Eligible Family Members (EFMs) such as myself are still mired in the same backwards technology that existed when our family joined the State Department 15 years ago. Despite advances such as the development of fobs, a device many employees use to generate passwords for intranet access from off-site computers, EFMs have not been granted access to such tools. While we tend to do most of the post research, we are still reliant upon non-State resources in order to retrieve bidding information when we need it the most.
A year after Secretary Clinton arrived at State (and to this day), there is still no decent online access for family members of State Department employees. The Foreign Service version of MilitaryOneSource for family members may remain only a dream for the foreseeable future. In 2009, a senior adviser at the State Department helped justify the “fobs for everyone” by citing that the program “will produce new fewer than 624,000 more hours of productivity by end of year.”
On May 12, 2009, CIO Susan Swart wrote an email to Alec Ross, then State Department senior advisor for innovation:
I met with Pat today and we did discuss expansion of the fob program. He is supportive and asked that we do a decision memo to him. WE need this get decision on funding and longer term strategy but I don’t see this as slowing down an announcement the Secretary might make, we just need to coordinate timing.
A couple days later, Alec Ross sent an email to Cheryl Mills and Jake Sullivan:
We’re going to forward with the doubling of mobile access to email and productivity tools. It’s INSANE that fewer than 1 in 5 state Department are able to access their email or documents when they’re away from their desk.
It has contributed to the 9:00-5:00 culture here and exacerbates the disconnection between D.C. and the missions. This is a good short-term win and by my estimates will produce new fewer than 624,000 more hours of productivity by end of year one which I think is extremely conservative – it assumes just 1.5 additional hour online per employee per week.
Given that those being given the tools are principally foreign service officers and people more senior than the mean average DoS employee, I think this is very reasonable. Will put an evaluative instrument into this to see if I’m correct.
More detail on all this below if you want it.
I should point out that Pat Kennedy and the CIO have been great. This has been one of several instances where they listened, they got it, and they’re moving forward. The CIO said she’d thought of it before, just didn’t know if she could handle the politics. I’m not going to spend a ton of time on our “corporate IT” but in obvious cases like this I’ll keep jumping in.
Last thing — this idea got a lot of attention on The Sounding Board. I propose that HRC respond to the staff (maybe in a quick 60 second video that we post there) saying in effect – Thank you for sharing your thinking. I heard you. Because of you we’re doing this.
Re-enforce that HRC is still listening to the staff.
That same day, Cheryl Mills forwarded the email to HRC:
FYI – we’re going to get a short video from you that we’ll put on our site announcing this. It’s also one of the ideas we can use for how we are reforming the department for the reform committee.
Secretary Clinton replied:
Sounds great but you’ll have to explain to me!
So then Ms. Mills sent the following:
sure — bottom line – you need a special security code to get on line from a computer outside the building. Only 1 in 5 of our employees has gotten the device (fob) that allows you to do this access.
This effort is making sure they get fobs into the hands of more (or all) employees so folks can work from home thereby increasing productivity substantially since the 4 in 5 essentially do no work from home once they leave the building until they get in again b/c they don’t have access to their email.
On May 14, 2009, at 10:20 PM, the Secretary replied:
Got it. Is the other matter fixed. Anything else going on?
Whatever it was she was asking about, Ms. Mills told her, it was “fixed.” The rest of the email chain is redacted. Click C05761923 (pdf) to read this emails via foia.state.gov.
“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