Colin Powell Is Done Talking About Hillary Clinton’s Emails, So Let’s Take A Trip Down @StateDept Tech Lane

Posted: 1:27 am ET
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After making waves for saying “Her people have been trying to pin it on me,” former Secretary of State Colin Powell is done talking about former Secretary of State Hillary Clinton’s emails and is not commenting anymore on it.

For those too young to remember this  — there was a time, not too long ago when the State Department communicated via teletype machines (with paper tape), similar to the one below.   You draft your cables on a Wang computer, give it to the local secretary to convert the document, and then she (almost always a she) runs it through the teletype machine for transmission to Main State and other diplomatic posts overseas.  If I remember right,  State had some creative IT folks who hooked up a DOS computer to the teletype machine so conversion was possible.  You still had to print it out and it still took a lot of trees.

Image via Open Tech School

 

When Colin Powell came to the State Department in 2001, the State Department was still using the Wang machine similar to the one below. They were either stand alone machines or were connected via a local area network and hooked up to a gigantic magnetic disc.  If post was lucky, it got one computer also hook up for email. Otherwise, you have a Selectric typewriter and a weekly diplomatic pouch.

Via Pinterest

Here is retired FSO Pater Van Buren with a look at technology at State during the Powell era.

When the rest of the world was working on PCs and using then-modern software in their offices, State clung to an old, clunky mainframe system made by the now-defunct company WANG. WANG’s version of a word processor was only a basic text editor with no font or formatting tools. Spell check was an option many locations did not have installed. IBM had bid on a contract to move State to PCs in 1990, but was rejected in favor of a renewal of the WANG mainframes.
[…]
Until Powell demanded the change, internet at State was limited to stand-alone, dial up access that had to be procured locally. Offices had, if they were lucky, one stand alone PC off in the corner connected to a noisy modem. If you wanted to use it, you needed in most cases to stand in line and wait your turn.
[…]
The way I see it, there’s about a 99.9 percent probability that he discussed his signature accomplishment at State with her, and cited his own limited, almost experimental, use of an AOL email account, as an example of how to break down the technical, security, bureaucratic, and cultural barriers that still plague the State Department today.

Read in full below:

 

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@StateDept Spox: Lax security culture here? We don’t share that assessment

Posted: 2:47 am ET
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Via the Daily Press Briefing with John Kirby:

QUESTION: So one of the word I think that kind of stood out in this regarding the State Department’s equities was “careless.” I think he even said extremely careless at one point regarding the former secretary and how she handled her emails – top staff around her, including some still at the department, and the agency as a whole. Do you agree that this agency was extremely careless with how it dealt with classified and otherwise sensitive information?

MR KIRBY: Well, I’m not going to, again, comment on the specific findings and recommendations that the FBI director noted today.

QUESTION: Why not?

MR KIRBY: But the question about —

QUESTION: That was a public statement.

MR KIRBY: The claim about – I do want to address this – the claim about a lax environment or culture when it comes to handling classified information. And I would just say – and I’m comfortable commenting on that because, as the director himself said, that was not part of their investigation – his – their assessment of a lax environment or culture. We don’t share that assessment of our institution. That said – and I’ve said this many times before – we’re always looking for ways to improve. We’re going to continue to look for ways to improve. But we don’t share the broad assessment made of our institution that there’s a lax culture here when it comes to protecting classified information. We take it very, very seriously.

QUESTION: But I’m sorry, you don’t share the assessment that when the former head of the agency had thousands of emails that you had to upgrade, including hundreds that were – over a hundred that were classified at the time, that that doesn’t amount to a lax approach to classified information? I mean, how many hundreds would you need for it to be lax, in your opinion?

MR KIRBY: What I’m saying, Brad, is that as a cultural assessment of the State Department as an institution that we have a lax culture here, we don’t share that assessment. And as the director said himself, that’s not – wasn’t part of their investigation or the findings and recommendations that they made inside that investigation.

QUESTION: Well, but so it’s not – it’s true that it was not the scope of their investigation, but in looking at her emails and the number of officials that were emailing here about classified information, that’s where they came to the determination that there was a lax culture. So I mean, I guess you would have to look at every single employee and see what their treatment of email to determine that it’s a lax culture, but clearly, the FBI found enough – Secretary Clinton’s intent or whatever notwithstanding, that generally that there were a lot of officials and that they came across in the scope of this investigation which led them to believe that the culture is not taken as seriously as it could be.

MR KIRBY: Well, I’ll let the FBI director speak to their findings and recommendations and his investigation, as he should. The question was do I share, do we share, the assessment of the culture at the – of the – at the institution of the State Department to be lax, and we do not share that assessment. We take it very seriously here.

 

let me stop you right there

 

QUESTION: So you think – well, clearly, he found it in the previous administration, in the previous term. So are you saying that maybe that there was a lax culture that doesn’t exist anymore?

MR KIRBY: No, I’m not saying that. I’m not saying that at all, Elise. I’m not parsing words here. I’m saying that the State Department has in the past and does today take the treatment of classified information very seriously. And when we —

QUESTION: So it was just some bad apples?

MR KIRBY: And when we have – pardon?

QUESTION: So it was just a few people that did not take enough care?

MR KIRBY: I’m not going to speak to any more specifically about the findings and recommendations that the FBI made and announced today. What I can tell is we don’t share the broad assessment that there is a lax culture here at the State Department when it comes to dealing with classified information. In fact, quite the contrary; we take it very seriously.

QUESTION: I have one more. I have one more. Can you – the FBI director said that had some of these people still been in office that they would have been subject or could have been subject to administrative penalties. Is anybody that’s currently employed by the State Department going to have any notes in their files as a result of anything that their emails uncovered in terms of their communications?

And then also, some of the previous employees that worked for Secretary Clinton that were found to have exchanged what is now believed to be classified information, are they going to have kind of posthumous notes put in their file should they ever seek to be employed by the U.S. Government again? And does the State Department do that or does the FBI do that, and is that through OPM? Like what’s the process there?

MR KIRBY: So let me answer it this way, and I think I alluded to this at the top. We’re going to determine the appropriate next steps following a decision by the Department of Justice, and that’s where this really lays right now. We have – as you know and I’ve said, we have an administrative process to evaluate cases where information may have been mishandled, and as I’ve said previously, at the request of the FBI, we didn’t move forward with that process so as not to interfere with their investigation. We also don’t believe that it’s appropriate at this time, given that there are – that the matter is now before the Department of Justice to determine their next step, to make decisions or not to make decisions – we don’t think it’s appropriate for us to move forward on that at this time. So I just don’t have an update for you on the – on any possible timing or scope of that review process.

QUESTION: So what would be the – so once the Department of Justice makes their recommendation, then you would determine what administrative processes you want to move forward with?

MR KIRBY: I think we need to wait to see what the Justice Department decides to do now in the wake of the FBI investigation before we move forward one way or the other, and we want to allow the proper time and space for that before we decide anything further with respect to those issues.

QUESTION: Kirby, a couple of detailed questions on this, and if you don’t have the answers, if you could undertake to take them. As has been explained to me, there are two separate processes that can be undertaken here. One of them is an administrative process and the other is a security clearance-related process.

As has been explained to me, but I’d like to confirm, the administrative process governs solely people who are currently employed by the Department of State. So can you confirm that that’s the case, that administrative processes or sanctions don’t apply to people who are no longer employed by State?

Second, as it’s been explained to me, it is possible for people who are no longer employed at State but who retain a security clearance to be subject to a security clearance process and perhaps sanction. Is that your understanding as well?

And then a couple of other specific things. Are any – is – does Secretary – former Secretary Clinton or any of her senior aides – specifically Cheryl Mills, Jake Sullivan, and Huma Abedin – continue to have security clearances provided by the State Department? And if so, is it theoretically possible that you would then review those security clearances in the light of whatever is ultimately the Justice Department prosecutorial decision and the FBI’s investigative material?

MR KIRBY: There’s an awful lot there. Let me see if I can dissect it. I’m certainly not going to get ahead of what is still an ongoing process now at the Justice Department, or speculate one way or the other about which way this will go. I don’t know – I’m happy to ask the question, your question about administrative processes. I don’t know if there is a technical definition for “administrative” and whether that applies in broad scope to only current employees or former employees. I’ll have to take that.

On the security clearance process or review, all I can tell you generally speaking is that – is that if there is a need – and I’m speaking broadly, not to this – that – the way it typically works, as I understand it, is that the department that issues a security clearance, if there is – if it’s determined that that clearance needs to be reviewed for whatever reason, it’s up to that – it’s up to the department that issued it to review it regardless of whether the employee is still at the – is still employed by the agency. The agency has that responsibility unless, of course, that employee went to a different federal agency and then got it renewed there. Does that make sense?

I’m not going to speculate one way or another about the degree to which this is – this is even a part of it. The FBI director was very careful; I’m going to be very careful. These are now decisions that have to be discussed. The findings and recommendations now have to be absorbed by the Department of Justice, and then they make – they’ll make decisions or not going forward.

And then on your last question, about the individuals, we do not discuss the security clearance of individuals as a matter of policy. We just don’t discuss it.

QUESTION: In – but these are former officials.

MR KIRBY: We don’t – we do not discuss.

QUESTION: And one of them, Jake Sullivan, in the transcript of his deposition in the civil lawsuit in which he was deposed as part of discovery, his lawyer said that his security clearance was restored so that he would have the ability to look at some of the material that was classified that they wanted to talk to him about. And so it’s at least in the public domain in that one instance, according to his lawyer, that he had, as of that date about a week ago, a security clearance.

MR KIRBY: Yeah.

QUESTION: Why can’t you talk about whether former officials have security clearances?

MR KIRBY: Because that’s our policy.

QUESTION: You don’t want —

MR KIRBY: And it’s been longstanding policy. We do not discuss the security clearance levels or access of individuals, current or former. We just don’t – that’s our policy and I’m not going to violate that.

QUESTION: It’s a State Department policy or a government-wide policy?

MR KIRBY: I know it’s at least a State Department policy, Elise. I’ll find out if it goes beyond that. I’m not going to —

QUESTION: Because certainly there have been instances, whether it’s General Petraeus or Sandy Berger or others, that when there was punitive action taken, they did discuss the security clearance.

MR KIRBY: I’m not going to discuss the individual security clearances from this podium – just not going to do it. And if there’s – I’d refer you to the individuals in question and if they’re represented by others to speak to that, but I won’t do that.

QUESTION: Just one more on the question of lax – laxity. You state that you disagree with the assessment that the State Department is lax, has a culture of being lax in the protection of classified information. Why is it that the highest State Department official was allowed to establish and use a private email server with, as I understand it, no government-provided security for emails that contain information that, as the FBI director said this morning, some of which was classified at the time it was sent and received? I mean, if it’s not lax, how can the top official of the department go off and set up their own system that isn’t subject to the normal procedures here?

MR KIRBY: Look, I’m not going to re-litigate the investigation. As I said, I’m not going to speak to the findings and recommendations – the FBI director spoke to that earlier today – and to what they found in terms of the practices back then and how those practices were followed. What I’ll just tell you – broadly speaking, we don’t share the assessment that as an institution – an entire institution – that the State Department has in the past or does today take lightly the issue of sensitive and classified information. We absolutely don’t.

QUESTION: What’s your basis for that?

QUESTION: The reason I asked it is that you look at, as I understand it, kind of every level of potential check or balance here, right? The assistant secretaries for DS, the under secretary for management – according to the inspector general’s report, these people were not asked and did not voice an opinion on the use of this system. The person on the seventh floor who was charged with these kinds of issues, at least according to the report, told people – told two people not to talk to anybody about it. So even if the quibble is with the world “laxity,” do you feel that your systems were sufficient to safeguard classified information sent by or to the secretary of state?

MR KIRBY: Again, I think the FBI director addressed that as well as part of their investigation. I am simply not going to discuss or comment on their findings and recommendations with respect to this case.

QUESTION: Well, I mean —

MR KIRBY: This issue – wait a second, Elise. Wait, wait – and to your question. And as he said himself, his assessment of the State Department’s culture was not part of this investigation, and that’s why I’m comfortable addressing that, that on – as a whole, in the main, we absolutely do not share the broad assessment that the entire culture here at the State Department is lax when it comes to protecting sensitive and classified information.

And what I’m basing that on, Brad, is the longstanding – and I don’t just mean recently – the longstanding training and indoctrination that one goes through before you get employed here and the periodic reviews of the training and sensitive information handling that you have to go through all the time. I’ve been here a little bit more than a year; I’ve already had to go through it several times myself. That you – we have two networks for email traffic that are deliberately set up to handle various degrees of sensitive information, and that the work of diplomats all around the world is by its very nature is sensitive, but it’s also outward-facing, and has to be. And there is a role here at the State Department to be communicative, to have dialogue, to foster communication. That’s a big part of who we are. And I can – and I can tell you that everybody involved in that understands the risks and the opportunities of it, and takes it very seriously.

QUESTION: Well —

MR KIRBY: So to say that the culture here —

QUESTION: Yeah.

MR KIRBY: — is lax, that’s a pretty broad brush, and again, we wouldn’t use it; we don’t believe it.

QUESTION: The problem is this indoctrination that you speak of obviously didn’t work when it came to the past secretary, or the hundred or so officials who all contacted her during the course of her tenure, or the dozens of officials who would have known that she wasn’t using a state.gov address or would have known that information that was at least on the borderline was going to a nongovernment account. So that failed across the board, right?

MR KIRBY: I’m not going to make a qualitative assessment.

QUESTION: The IG report said as much.

MR KIRBY: The IG spoke as well to this. I’m not going to talk about the findings and recommendations of this investigation.

QUESTION: Well —

QUESTION: And —

MR KIRBY: But this was – there is a difference, Brad, between an assessment of email practices under Secretary Clinton’s tenure and how they were implemented and saying that the culture here at the State Department is lax.

QUESTION: Okay, well, what —

QUESTION: Yeah, but – no, no, no, hold on. But – sorry, you can’t separate the head of the agency and everybody who worked around her at a senior level in this agency and say —

MR KIRBY: Right, and I’m not trying to.

QUESTION: Well, you —

QUESTION: — well, there were somebody out there who was following the rules, so the culture was okay.

MR KIRBY: It’s more than somebody, Brad.

QUESTION: Well —

QUESTION: Well, I don’t know. Show me an IG report that shows all the adherence.

QUESTION: Let me —

QUESTION: And secondly, you’re making this case about how the State Department was an – is an outward-looking agency.

MR KIRBY: Yeah.

QUESTION: None of these emails from Secretary Clinton were outward-focused. They were all about internal messaging, they were all about her and her aides consulting on matters —

MR KIRBY: Sure.

QUESTION: — that weren’t meant for public consumption, and there’s even messages about not wanting things out for public consumption. So I fail to see how that’s an argument that shows why somehow this is distinct or excusable.

MR KIRBY: It’s a valid argument when you’re talking about the entire institution, Brad, and not an individual inside it, regardless of whatever level that individual serves, to make a broad assessment – and look, I don’t – I don’t – I’m not going to – I think I’ve said it plenty of times already – to make a broad assessment of the entire institution, that it was lax or that we don’t care or we don’t take it seriously. We don’t share it.

Now, look, as I also said, we’re always looking for ways to improve. And if there’s ways we can learn from this particular investigation to improve, then we’ll do that.

QUESTION: So, John – okay. So I think it’s pretty clear what you’re taking issue with is that you’re – you’re interpreting the FBI director’s comments to mean a culture throughout the whole State Department apparatus. And I think his – what he’s trying to say is based on – and they did not – the scope of their investigation was not the whole State Department; it was Secretary Clinton and the immediate staff and several other dozen officials that were emailing her – that there was a lax culture among a subset of State Department officials. That – I don’t think he’s making an indictment on the whole State Department, but he is saying that there was a culture inside the State Department where the security was lax. I mean, the fact that this took place kind of indicates that it was.

And he does also say that this use of a personal email domain was known by a large number of people and readily apparent. So there were numerous people inside the State Department that knew that she was using this type of system. So how can you not – if you don’t want to acknowledge that there was a lax culture in the whole kind of State Department bureaucracy, can you not acknowledge that among a subset of employees at the time that there was a lax – a culture of lax security among that subset?

MR KIRBY: Well, I’ll let the investigation speak for itself and the FBI director to speak for it.

QUESTION: But by you kind of parsing out and saying that this – let me finish – that by you parsing out and saying that the whole building doesn’t have a lax security problem suggests that you’re dismissing that a small portion did.

MR KIRBY: I was not suggesting any such thing, Elise. As I said, we cooperated with the FBI on its investigation. I can’t talk about the scope of that cooperation. I’m not going to, again, address the specific findings and recommendations that he made. And the director has spoken for their investigative work, and I would refer you to him and to his staff to speak to it going forward. And I don’t have his exact quote, so I can’t tell you if I’ve misinterpreted or not. I mean, he can speak for himself in terms of what he meant. The way we interpreted it was that it was a broad-brush assessment of the culture here at the State Department when it came to —

QUESTION: Do you not – do you not agree that a group of people, however large it was, that knew about this system and let it kind of – greenlighted it and let it go forward and didn’t ask questions about it suggests that security – and a culture of security was lax somewhere in the —

MR KIRBY: Look, our inspector general himself found that there were lapses and that not all appropriate practices were conducted. I mean, nobody’s taking issue with that. What I’m taking issue with – and the only thing I’m taking issue with today, because I’m not going to comment, as I said, on the specifics – the only thing I’m taking issue with is an assessment, a broad assessment, of the culture of the institution, which we do not share.

QUESTION: Can I follow up on this?

QUESTION: Something else from today: The director of the FBI said that the FBI had found over a hundred emails that contained classified information at the time that they were sent or received, and some were even actually marked classified. So that contradicts what the State Department has been saying throughout this investigation, so how do you square the two?

MR KIRBY: As I said, I’m not going to comment on the specific findings and recommendations of the investigation.

QUESTION: John —

QUESTION: One follow-up —

QUESTION: Would you, though, at least acknowledge that —

MR KIRBY: Hang on a second. Hang on.

QUESTION: Something else that he said in his comment – he said that the 110 emails had been determined by the owning agency to contain classified information. So do you now acknowledge that it is the owning agency’s responsibility, not the recipient’s or even necessarily the State Department, in determining what information is classified and what’s not?

MR KIRBY: Again, what I would tell you is we cooperated fully with the FBI on this and I’m not going to comment specifically on the findings of the investigation. As much as I know you’d like me to, I’m not going to do that. There is now – there is a process here in place where the Department of Justice is going to take a look at this. We’re going to let that process play out, as we should, and we’ll await any pending decisions by the Department of Justice before the State Department moves forward one way or another.

QUESTION: John, how do you stand up —

QUESTION: What about the possibility that people hostile to the U.S. had possibly gained access to —

MR KIRBY: I’m sorry?

QUESTION: What about the possibility that states or entities hostile to the U.S. had possibly gained access to some of the content of those emails? Do you share those concerns that the FBI director said today?

MR KIRBY: Well, again, we, of course, take the security of our systems very, very seriously, and we’re always concerned about intrusions into our system. I think the director also said that they didn’t find any direct evidence that the system was compromised, but I don’t have additional details to offer today.

QUESTION: But he also said that you couldn’t be sure and that – and it’s possible that they did so and you don’t even know about it.

MR KIRBY: Again, we’re always concerned about this. And look, federal government systems get attacked every day. I just don’t have any additional details on this.

QUESTION: Oh, you’re not – you’re not suggesting that because government systems are hacked that there was enough security in place that would replace —

MR KIRBY: I’m not —

QUESTION: — that would be equal to the government security? The FBI director specifically said that it was not as secure as a government system or even a Gmail account.

MR KIRBY: Again, I’m not going to discuss or debate the findings or the recommendations.

QUESTION: But you were the one that raised it. You said government computers get – or government systems get hacked all the time.

MR KIRBY: It doesn’t mean we don’t take it seriously, Elise.

QUESTION: Hey, John, just – can I —

MR KIRBY: Carol.

QUESTION: John, do you – I believe the FBI director made a point of saying that you were lax in comparison to elsewhere within government. Do you believe that you stand up equally to other agencies in the government, including national security agencies like the FBI and the CIA, the White House, and the Pentagon? Do you think you are equal to them?

MR KIRBY: I think – look, first of all, that everybody has a – everybody in the federal government has standard rules that crosscut agencies in terms of how sensitive and classified information is treated and dealt with. We all have the same basic rules. But each federal agency also has a fundamental different purpose and each of the major federal agencies has to, by dint of their purpose, look at the world in different ways.

As I said to Brad, we are required – not just that we like it – we’re required to be outward-facing, we’re required to communicate, we’re required to foster dialogue, we’re required to have conversations with foreign leaders and in foreign countries all around the world every single day. Now, that doesn’t obviate, doesn’t excuse, it doesn’t mean that we’re not also responsible in the conduct of that business to protect sensitive information. We have to. But the State Department, unique to many – unique, I think, among federal agencies, has an actual obligation to communicate.

So that’s why I’m confident in saying that – look, do we always get it right? No. Have we admitted that there were things we could have done better in the past? Absolutely. The IG found that. The Secretary himself has taken steps to try to improve records management here. But we have an obligation to communicate, and you have to find the right balance between the need to do that – to foster dialogue, to try to gain better understanding of what somebody else thinks and articulate your policy, at the same time protecting sensitive information. So we have a different role. I don’t think it’s useful to compare each and every federal agency with the way they do this because each of them have different responsibilities in terms of the information environment. But again, I’m not at all excusing anything in terms of our responsibilities – our baseline responsibilities, which every federal agency has – to protect classified and sensitive information.

QUESTION: Hey, Kirby.

MR KIRBY: Yeah.

QUESTION: According to a letter dated February 18th, 2016, from Julia Frifield, the assistant secretary for legislative affairs, to Chairman Grassley, the letter explicitly discloses that Cheryl Mills did maintain a top-secret – well, did maintain a security clearance because, pursuant to Section 4.4 of Executive Order 13526, she was designated by former Secretary Clinton to assist her in research consistent with that section of the executive order. So you do disclose – you do talk about security clearances, at least in this one instance, with regard to Ms. Mills.

MR KIRBY: That’s a – that – you’re talking about a piece of correspondence between the head of legislative affairs here and a senator. That’s different than public disclosure, certainly different than disclosure and talking about it here from the podium. As I said, our policy is not to discuss it, and I’m not going to change the policy here today.

QUESTION: Even though you’ve told lawmakers about it?

MR KIRBY: That is not the same as having a public discussion of security clearance. That’s a vastly different thing.

QUESTION: Is it – that wasn’t a classified letter.

MR KIRBY: Just because something’s not classified doesn’t mean that it’s —

QUESTION: Well, we know that.

MR KIRBY: — that it’s okay to discuss here at the podium, Brad.

QUESTION: I know.

MR KIRBY: I mean, look, the – I’m not going to violate —

QUESTION: We know that classified isn’t the marker for you to —

MR KIRBY: I’m not going to violate the policy today.

 

Judicial Watch Submits Plan to Depose Top Ranking @StateDept Officials and 30 (b)(6) Witnesses

Posted: 1:54 pm EDT
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On February 23, Judge Emmet Sullivan of the District Court of the District of Columbia granted Judicial Watch’s (JW) motion for discovery related to the use of the clintonemail.com system by the former secretary of state and at least one other former State Department employee. The case is Judicial Watch vs. U.S. Department of State (Civil Action No. 13-cv-1363 (EGS)). Court records indicate that that JW need to submit a Discovery Plan To Court and Counsel by 3/15/2016 (see Court Grants Request to Interview Clinton Aides and @StateDept Officials Under Oath Over Email Saga).

In its court filing of March 15, JW submitted its plan to seek testimony from the following former and current officials of the State Department. Names and descriptions are as listed by JW:

Stephen D. Mull (Executive Secretary of the State Department from June 2009 to October 2012 and suggested that Mrs. Clinton be issued a State Department BlackBerry, which would protect her identity and would also be subject to FOIA requests);

Lewis A. Lukens (Executive Director of the Executive Secretariat from 2008 to 2011 and emailed with Patrick Kennedy and Cheryl Smith about setting up a computer for Mrs. Clinton to check her clintonemail.com email account);

Patrick F. Kennedy (Under Secretary for Management since 2007 and the Secretary’s principal advisor on management issues, including technology and information services);

Donald R. Reid (Senior Coordinator for Security Infrastructure, Bureau of Diplomatic Security since 2003 and was involved in early discussions about Mrs. Clinton using her BlackBerry and other devices to conduct official State Department business);

30(b)(6) deposition(s) of Defendant [designated witness(es) for the State Department] regarding the processing of FOIA requests, including Plaintiff’s FOIA request, for emails of Mrs. Clinton and Ms. Abedin both during Mrs. Clinton’s tenure as Secretary of State and after;

Cheryl D. Mills (Mrs. Clinton’s Chief of Staff throughout her four years as Secretary of State);

Huma Abedin (Mrs. Clinton’s Deputy Chief of Staff and a senior advisor to Mrs. Clinton throughout her four years as Secretary of State and also had an email account on clintonemail.com); and

Bryan Pagliano (State Department Schedule C employee who has been reported to have serviced and maintained the server that hosted the “clintonemail.com” system during Mrs. Clinton’s tenure as Secretary of State).

And here’s one we won’t know possibly until after the judge’s expected ruling on April 15 — Judicial Watch also seeks testimony from 30 (b)(6) witness or witnesses who can provide testimony on behalf of the State Department on the following issues:

  • the creation or establishment of the clintonemail.com system as well as any maintenance, service, or support provided by the State Department of that system;
  • the knowledge or awareness of State Department officials and employees about the existence and use of the clintonemail.com system;
  • any instructions or directions given to State Department officials and employees about communicating with Mrs. Clinton and Ms. Abedin via email;
  • any inquiries into Mrs. Clinton’s use of the clintonemail.com system as well as any discussions about responding to such inquiries or publicly revealing the existence and use of the clintonemail.com system to the public; and
  • the inventorying or other accounting of Mrs. Clinton’s and Ms. Abedin’s email upon their departure from the State Department.

The (b)(6) is in reference to the FOIA exemption which protects information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”

Judge Sullivan’s February 23 ruling required the State Department to respond by 4/5/2016.

The plan submitted to the court is available to read here (PDF).

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Congressional Democrats Complain Inspectors General’s Review of HRC’s Emails as “Too Politicized”

Posted: 1:28 pm EDT
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In January, we wrote It Took Awhile But Here It Is — Going After @StateDept OIG Steve Linick With Fake Sleeper Cells. In February, there was an allegation of “fishing expeditions.” This month, it got louder (Kerry Stands By Linick as Clinton Campaign Goes the Full Monty on @StateDept Inspector General).  From the beginning, we are of the opinion that the real target of these allegations of bias is Mr. Linick, who came to the State Department in 2013.  If you can smear the messengers badly enough, then, of course, all those reports his office issued and will issue in the future can simply be ignored or dismissed as partisan.  We remain convinced that the State IG and ICIG are doing their jobs as well as they could under awful weather conditions in an election year.

More recently, the NYT reported that senior Democrats in Congress have now accused the inspectors general of the State Department and the nation’s intelligence agencies of politicizing their review of the former secretary of state’s use of a private email server while she was secretary of state.

The accusation — made in an unusually pointed letter dated Wednesday — underscored the increasingly partisan nature of the controversy over the email practices of Mrs. Clinton, the front-runner for the Democratic presidential nomination. Those practices are the subject of an F.B.I. investigation, in addition to inquiries by the inspectors general and congressional committees.

“Already, this review has been too politicized,” the Democrats wrote to Steve A. Linick, the State Department’s inspector general, and I. Charles McCullough III, the inspector general for the nation’s 16 intelligence agencies. “We are relying on you as independent inspectors general to perform your duties dispassionately and comprehensively.”

WaPo notes that Mr. Linick, the State Department’s independent watchdog, has been conducting a review of the use of private email for government business at the request of Secretary of State John Kerry.

The office of I. Charles McCullough III, who plays the same role for the intelligence community, was involved in a review of Clinton’s correspondence as it was released to the public, a process that concluded last month.

The dual complaints from the campaign trail and from Capitol Hill regarding the watchdogs could be an effort to proactively inoculate Clinton should one of the two offices issue a report that is damaging to Clinton’s presidential campaign. Clinton’s campaign has already aggressively worked to undermine the credibility of the two offices.

Doug Welty, a spokesman for the State IG, said:

“Partisan politics play no role in OIG’s work.  At all times, State OIG operates as an independent organization, consistent with the law,” he said in a statement. “Our work will continue to be unbiased, objective, and fact-based. We are now reviewing the email practices of the current and last four secretaries of State, not just Secretary Clinton.  Any suggestion that the office is biased against any particular secretary is completely false.”

We recognize that the IGs walk a very difficult line, having to report not only to their agency heads (in the case of the ICIG, that’s more than a dozen intel agencies) but also to the Congress. Sherman Funk, the former State Department IG described it as straddling the barbed wire fence.  If our elected reps are concerned that the reviews have become “too politicized,” then Congress should stop leaking to the press IG materials before they are officially released.

Of course, if these reviews become so highly partisan that it become impossible for the watchdogs to do their jobs, there is always another solution.  Congress can restore the Independent Counsel law which could be used by Congress or the Attorney General to investigate individuals holding or formerly holding certain high positions in the federal government.

Oh, my goodness, look who will be salivating over that. The last time the IC happened, if we remember right, there was a lot of sludge and the stock price for Clorox actually went up.  So best not go there. Below is the letter sent to both IGs:

 

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“Experienced Diplomats and Foreign Service Officers” Thrown Under the Bus – Internal Screaming at 125 dB

Posted: 2:04 am EDT
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A couple months ago, we saw HRC’s campaign talked to CNN about the controversies in the handling of classified material, called it “a gray area” and cited foreign service officers as part of its defense:

And the career foreign service officers that were often the originators of this e-mail, they know the difference between what’s classified and what’s not.   A lot of people, I think, are mistaken to suggest that Hillary Clinton originated many of these e-mails. In fact, they are chains that are ultimately forwarded to her after being bandied back and forth by career foreign service officers in the State Department. And these are people, like I said, that know the difference between what’s classified and what’s not.  So by the logic of what today’s announcement suggests, then there would be dozens of officials in the State Department that were completely negligent. Does anyone really think that’s what’s going on here? I don’t. 

On March 5, the AP posted Things we learned from 50000-plus pages of Clinton emails.  The Washington Post also has a report on its analysis of the classified content in over 50,000 publicly released Clinton emails  based on what the State Department has said contained classified information.  Excerpt from the WaPo piece:

“If experienced diplomats and foreign service officers are doing it, the issue is more how the State Department deals with information in the modern world more than something specific about what Hillary Clinton did,” said Philip H. Gordon, who was assistant secretary of state for European and Eurasian affairs and was the author of 45 of the sensitive emails from his non-classified government account.
[…]
They said they never stripped classified markings from documents to send them through regular email, as Republicans have alleged occurred in Clinton’s correspondence.

Instead, they said, the emails largely reflect real-time information shared with them by foreign government officials using their own insecure email accounts or open phone lines, or in public places such as hotel lobbies where it could have been overheard.

In other emails, they said they purposely wrote in generalities. Numerous emails were labeled “Sensitive But Unclassified,” indicating those writing did not think the note was classified.

Former ambassador Dennis Ross, who has held key diplomatic posts in administrations of both parties, said that one of his exchanges now marked “secret” contained information that government officials last year allowed him to publish in a book.

The emails relate to a back-channel negotiation he opened between Israelis and Palestinians after he left the government in 2011.

“What I was doing was communicating a gist — not being very specific, but a gist. If I felt the need to be more specific, we could arrange a meeting,” Ross said.

Princeton Lyman, a State Department veteran who served under presidents of both parties and was a special envoy to Sudan when Clinton was secretary of state, said he has been surprised and a bit embarrassed to learn that emails he wrote have been classified. He said he had learned through decades of experience how to identify and transmit classified information.

“The day-to-day kind of reporting I did about what happened in negotiations did not include information I considered classified,” he said.

One former senior official who authored some of the now-classified emails referred to a “cringe factor” for officials reviewing their own emails with the benefit of time that was often not available in the middle of unfolding world crises.

The former official, speaking on the condition of anonymity, expressed disagreement with the State Department’s decision to classify the emails. Still, the official said diplomats at the time believed they were sending the material through a “closed system” in which the emails would be reviewed only by other State Department officials. They are becoming public now, the official noted, only because of Clinton’s email habits and her presidential run.

“I resent the fact that we’re in this situation — and we’re in this situation because of Hillary Clinton’s decision to use a private server,” the official said.

 

We completely understand if folks are screaming internally (or not) up to the pain threshold of 125 decibel.

 

 

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Email of the Day: Wow! What’s With These @StateDept “Make Them Whole” Awards?

Posted: 1:50 am EDT
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Via foia.state.gov released through the Leopold v. State Department FOIA litigation. These “make them whole” awards are given because the “sucessesors (sic) got the award and they didn’t.” Wait, what? Does this mean the employees got these awards because the folks who followed them on these jobs got the awards but they didn’t? Help us, we don’t understand this award type. Is this like those competition where everyone gets a trophy?

 

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DOJ Grants Immunity to Bryan Pagliano, Ex @StateDept Staffer and HRC’s Former Server Guy

Posted: 2:16 am EDT
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Can private lawyers hoard potentially classified information? Yes. No, It Depends. Wait, No?

Posted: 2:30 am EDT
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Related to Brown v. State Department: Another Day, Another FOIA Lawsuit, David Brown wanted to know “If it is now policy to allow private lawyers to hoard potentially classified information, the public is entitled to know the authority by which such policies are maintained, and who is permitted such generous treatment.”  

The Daily Beast last week reported that Clinton’s private lawyer got his way when he pushed back after being asked to delete all copies of a classified email—a level of deference an expert calls ‘far from the norm.’  State Department employees were also reportedly told “to develop a system that would let Kendall keep the emails in a State Department-provided safe at his law firm in Washington, D.C., where he and a partner had access to them” according to the Daily Beast.

Newly released documents, obtained by The Daily Beast in coordination with the James Madison Project under the Freedom of Information Act, include legal correspondence and internal State Department communications about Clinton’s emails. Those documents provide new details about how officials tried to accommodate the former secretary of state and presidential candidate.
[…]
“The arrangement with Kendall was far from the norm,” Steven Aftergood, an expert on classification and security policy at the Federation of American Scientists, told The Daily Beast. “There are a number of attorneys around who handle clients and cases involving classified information. They are almost never allowed to retain classified material in their office, whether they have a safe or not. Sometimes they are not even allowed to review the classified information, even if they are cleared for it, because an agency will say they don’t have a ‘need to know.’ In any event, the deference shown to Mr. Kendall by the State Department was quite unusual.”
[…]
While State Department officials initially may have felt that non-government lawyers were qualified to maintain classified emails at their office, they changed their tune as investigators began to discover more top secret information among Clinton’s communications.
[…]
The arrangement with Kendall has been previously reported. But the documents reveal new details about what was happening inside the State Department as officials moved ahead with the unorthodox setup.

 

Related item:

12 FAM 530 STORING AND SAFEGUARDING CLASSIFIED MATERIAL-June 25, 2015, pdf).

 

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Senator Grassley Explains Hold on Thomas Shannon’s Nomination to be @StateDept’s #4

Posted: 2:21 am EDT
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Senator Chuck Grassley (R-IA) has placed a hold on the nomination of Ambassador Thomas Shannon as Foggy Bottom’s next “P.” Below is an excerpt in the Congressional Record with Mr. Grassley explaining his hold (see Senator Grassley Lifts Hold on 20 Foreign Service Nominations, Places New Hold on “P”). He stated that he is not questioning the credentials of Ambassador Shannon in any way; just pushing the State Department to “respond to congressional inquiries in a timely and reasonable manner.”

Mr. GRASSLEY. Mr. President, I intend to object to any unanimous  consent request at the present time relating to the nomination of  Thomas A. Shannon, Jr., of Virginia, a career member of the Senior  Foreign Service, class of Career Ambassador, to be an Under Secretary of State, Political Affairs.

I will object because the Department of State has still not responded  to almost a dozen investigative letters dating back to 2013. In  addition, on August 20, 2015, my staff met with Department officials in  an effort to prioritize material for production. The Department has failed to comply with its commitments, producing material late, failing  to provide all requested material, and even failing to provide material to the Senate Judiciary Committee contemporaneously with providing the same documents to Freedom of Information Act, FOIA, requestors. These are the same complaints that I raised on September 30, 2015, when I placed a hold on Brian James Egan of Maryland to be legal advisor of the Department of State. Apparently, the Department simply does not understand its obligation to respond to congressional inquiries in a timely and reasonable manner.

Two and a half years ago I began a broad inquiry into the government’s use of special government employee programs. I did not single out the State Department on this issue. To the contrary, I wrote to 16 different government agencies. Two and a half years have passed since I began my inquiry, and the State Department has still not produced the materials I have requested or certified they do not exist.

 In addition to the investigation of the Department’s special government employee program, I am also investigating the Department’s  compliance with the FOIA as it pertains to Secretary Clinton’s private server that was used to transit and store government information. The Minority Leader has questioned whether the Judiciary Committee’s jurisdiction extends to these matters. I would note that the special government employee designation is an exception to Federal criminal conflict-of-interest laws. Those laws are within the jurisdiction of the Judiciary Committee, as is FOIA.
[…]
As a further example of the Department’s continued intransigence, I requested all SF-312 “Classified Non-Disclosure Agreements” for Secretary Clinton, Ms. Huma Abedin, and Ms. Cheryl Mills on August 5, 2015. My staff met with Department personnel three times since that letter and participated in dozens of emails and phone calls in an effort to acquire these documents. In addition, after the Department complained that it had received too many requests from me, my staff produced a prioritized list of requests to assist the Department in producing responses. At number three on that list were the SF-312 forms, and at number one are the official emails of Mr. Pagliano. Notably, during conversations with my staff on the subject, Department personnel stated that they could not locate those forms with the exception of only page 2 of Ms. Abedin’s SF-312 exit form. On November 5, 2015, the Department produced SF-312 entrance forms for Secretary Clinton, Ms. Abedin, and Ms. Mills to a FOIA requestor but failed to provide the same to the Committee. Clearly, the documents exist.
[…]
The continued intransigence and lack of cooperation make it clear that the Department did not care enough about their Foreign Service  officer candidates to “get in gear” and begin to produce responses to  my oversight letters. Accordingly, I have released my hold on these officer candidates and have escalated to Mr. Shannon. The Department of State’s refusal to fully cooperate with my  investigations is unacceptable. As I have noted before on the floor of the Senate, the Department continues to promise results, but there has been very little or no follow-through. The Department’s good faith will be measured in documents delivered and witnesses provided.

My objection is not intended to question the credentials of Mr. Shannon in any way. However, the Department must recognize that it has an ongoing obligation to respond to congressional inquiries in a timely and reasonable manner.

Read the full entry in the Congressional Record here.

 

 

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Congress Mandates Limits on @StateDept’s Records Management After Hillary Clinton’s Email Flap

Posted: 12:44 am EDT
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In 1976, Henry Kissinger apparently left the State Department with records of his telcons, along with his memcons and office files, at the conclusion of his tenure as the 56th Secretary of State.  The National Security Archive in 2001 filed a legal complaint directed at the State Department and the National Archives “for abdicating their duty under the Federal Records Act to recover the Kissinger documents, which were produced on government time with government resources.” In March 2015, the National Security Archive again filed suit against the State Department under the Freedom of Information Act to force the release of the last 700 transcripts of Kissinger’s telephone calls (telcons). The Archive’s appeal of State’s withholding dates back to 2007. State has apparently claimed they were “pre-decisional” or covered by executive privilege — claims that the Archive says “should long since have expired in the case of 40-year-old records.”

In 2013, 67th did not have to removed her record emails since they were not even in the State Department systems. Meanwhile, the State Department will be tied up in multiple civil litigations related to these damn emails until 2055.

In any case, Congress is on it! No one will be able to do this ever again. No one, that is, until the next secretary of state maybe in 2028 … and it’ll be for something similar to the telephones, or emails, but different; perhaps out of a new technology that is yet to be invented… records retention for lifelogging or mindprinting, anyone?

Well, here is what Congress did for now.  A section of the ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes the following item on Records Management with funding restrictions on the use of email accounts and email servers created outside the .gov domain, a requirement for records management reports from both the State Department and USAID within 30 days, and a provision for  withholding $10,000,000 from the “Capital Investment Fund” until the reports required are submitted to Congress.

(1) LIMITATION AND DIRECTIVES.—

(A) None of the funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II that are made available to the Department of State and USAID may be made available to support the use or establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program in contravention of the Presidential and Federal Records Act Amendments of 2014 (Public Law 113–187).

(B) The Secretary of State and USAID Administrator shall—

(i) update the policies, directives, and oversight necessary to comply with Federal statutes, regulations, and presidential executive orders and memoranda concerning the preservation of all records made or received in the conduct of official business, including record emails, instant messaging, and other online tools;
(ii) use funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II, as appropriate, to improve Federal records management pursuant to the Federal Records Act (44 U.S.C. Chapters 21, 29, 31, and 33) and other applicable Federal records management statutes, regulations, or policies for the Department of State and USAID;
(iii) direct departing employees that all Federal records generated by such employees, including senior officials, belong to the Federal Government; and
(iv) measurably improve the response time for identifying and retrieving Federal records.

(2) REPORT.—Not later than 30 days after enactment of this Act, the Secretary of State and USAID Administrator shall each submit a report to the Committees on Appropriations and to the National Archives and Records Administration detailing, as appropriate and where applicable—
(A) the policy of each agency regarding the use or the establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program;
(B) the extent to which each agency is in compliance with applicable Federal records management statutes, regulations, and policies; and
(C) the steps required, including steps already taken, and the associated costs, to—

(i) comply with paragraph (1)(B) of this subsection;
(ii) ensure that all employees at every level have been instructed in procedures and processes to ensure that the documentation of their official duties is captured, preserved, managed, protected, and accessible in official Government systems of the Department of State and USAID;
(iii) implement the recommendations of the Office of Inspector General, United States Department of State (OIG), in the March 2015 Review of State Messaging and Archive Retrieval Toolset and Record Email (ISP–1–15–15) and any recommendations from the OIG review of the records management practices of the Department of State requested by the Secretary on March 25, 2015, if completed;
(iv) reduce the backlog of Freedom of Information Act and Congressional oversight requests, and measurably improve the response time for answering such requests;
(v) strengthen cyber security measures to mitigate vulnerabilities, including those resulting from the use of personal email accounts or servers outside the .gov domain; and
(vi) codify in the Foreign Affairs Manual and Automated Directives System the updates referenced in paragraph (1)(B) of this subsection, where appropriate.

(3) REPORT ASSESSMENT.—Not later than 180 days after the submission of the reports required by paragraph (2), the Comptroller General of the United States, in consultation with National Archives and Records Administration, as appropriate, shall conduct an assessment of such reports, and shall consult with the Committees on Appropriations on the scope and requirements of such assessment.
(4) FUNDING.—Of funds appropriated by this Act under the heading “Capital Investment Fund” in title I, $10,000,000 shall be withheld from obligation until the Secretary submits the report required by paragraph (2).

You gotta do what you gotta do, now for some laughs via SNL:

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