Classification Law and Clinton Emails

[Mz Pip]

The info below was written by a friend of mine who recently retired from the DoD. Before he retired he also wrote to the Under Secretary of Intelligence pointing out that procedures governing the exchange of information had not been updated since 1987 and did not recognize the Internet. The media seems uninterested in anything but fanning the flames of controversy.

As an expert in the DoD on classification, I felt compelled to write about the Clinton email fiasco. I sent this to several reporters in Washington DC only to get "Interesting points" as a response.

Classification Law and the Clinton Emails

The kangaroo courts being held on Facebook, in Congress, and the various internet and print media over the Clinton emails have all deliberately avoided any discussion about the law regarding classification. FBI Director, James Comey, got it right based solely on the law. For those who protect their beliefs with cognitive dissonance, you’ll probably skip reading this. For everyone else, this is an apolitical revelation of some facts pertaining to classification law.

The federal rules defining what can be classified, who can classify it, constraints and prohibitions, levels of classification and required markings are codified in 32 CFR 2001 pursuant to Executive Order 13526. Each successive President signs an E.O. shortly after assuming the office continuing the classification policies. The CFR specifies that the heads of federal agencies are appointed as having Original Classification Authority (OCA). This authority is limited to specific positions in the Federal government and can only be delegated in writing to very senior positions within each Federal agency. Staff members are not authorized by the law to make original classification determinations. These OCAs are required to subjectively assess risk (possible outcome plus probability of outcome) of documents, images, objects, etc. in their purview for their potential damage to US national security if exposed publicly and be able to articulate that specific risk if challenged. The law also specifies if there is doubt, the default determination is Unclassified. Unclassified only means the information does not meet the criteria for labeling it as Confidential, Secret, or Top Secret based on the risk assessment. The State Department names this category Sensitive But Unclassified while the Defense Department labels this category Unclassified/For Official Use Only. It’s important to note here that Unclassified does not mean publicly releasable which requires a separate determination. Clinton, as Secretary of State, had the authority conveyed by law to make her own determination about the classification of her emails.

The CFR is not a criminal statute. Therefore, prosecution for unauthorized disclosure of classified information falls under the Espionage Act of 1917 (18 USC 792+). This is where intent to damage the US national security is required to be proven to get a conviction. FBI Director Comey specifically stated that while Clinton’s email server did not meet security requirements to prevent infiltration or hacking, there was no evidence that hacking occurred.

Opinion: Clinton was certainly careless – no doubt about it, and deserves rebuke for that. However, based on the authorities conveyed by 32 CFR 2001 and the required elements for prosecution under 18 USC 792, the FBI had no choice other than to recommend no charges be filed. Neither CFR nor department policies address access controls in the modern information computing environment. As federal departments modernize IT systems to support information sharing between authorized users, they are continually hampered by antiquated security policies that barely recognize the existence of the internet. While the CFR is clear about who can make an original classification determination, staff members below each OCA in lower elements of the federal agencies continue to illegally label items classified without specifically delegated authority from their OCA or performing the legally required risk assessment.

[DURHAM D]

1. "Clinton was certainly careless" ?????

Really... she, and Bill, were not hacked. Almost every government agency has been and Chelsea Manning took more than a quarter of a million State Department cables (from the DOD system) and made them public.

Hillary was trying to do her job without decent tech support.



But...she is a girl and we have different standards for them. I guess she should of twiddled her thumbs like Condi, well actually Condi just practiced the piano, and she would of been okay. Who gives a shit about international relations anyway.

[CajunBlazer]

4. It actually more difficult to hack a server to which only one person has access

Much of the hacking of servers makes use of "human engineering" - that is exploiting human users who are the weak point of any email system. It might involve tricking someone into providing his/her pass code or secreting a virus which gives the hacker access to the system and spreads when a user opens a document.

Obviously if hundreds of people have access to a server, the chances that human engineering method will be successful increases tremendously. There are hundreds of people who can make a mistake. If only one person has access and a pass code, obviously the chances go down according.

[BlueMTexpat]

9. +1! eom

[Thinkingabout]

2. They don't have information to charge Hillary and they have cast their own

Cognitive dissonance ideas on this, the same people who still believes there was WMD's in Iraq and believes Obama was born in Kenya. Says a lot.

[CajunBlazer]

3. I am going to try to give this narrative more exposure

...by putting it on my bog. Perhaps others can do so as well. Others with popular accounts can give it publicity as well.

The link to the narrative which is now on my blog is: http://www.cajunscomments.com/classification-law-and-clinton-emails/


I hope you don mind me calling you a friend in my introduction to the narrative Mz Pip; I feel that all of us in the Hillary Group are friends.

[Mz Pip]

5. The name of the person who wrote this

Is David Vail. You can attribute it to him. It doesn't have to be anonymous.

[CajunBlazer]

6. Do you know David's possition at the DoD before he retired?

[Mz Pip]

7. I'll find out

He sent me a long email a few months ago detailing some of this. I thought I saved it but can't find it now. I'm a couple of years younger than Hillary and completely get how easy it is to screw up emails.

A tech savvy person migh consider it careless. For me it's more like clueless. I think I know what I'm doing but still manage to screw it up.

I'll contact Dave and ask him to resend his original email that he'd sent to a reporter a few months ago. It has the info you are requesting.

[Mz Pip]

10. Here it is.

United States Transportation Command, Operations Directorate, in the Dept of Defense, command manager for the Joint Operation Planning and Execution System (JOPES) which is a classified system, engaged in classification policy issues with the Pentagon, challenged risk assessments, and challenged classifications made by other DoD organizations.

[CajunBlazer]

11. Thanks, I have already added his name

I will now add his credentials. Thanks again.

[Mz Pip]

12. Great

I know he's been frustrated by the lack of attention given to the facts of the matter.

[fleabiscuit]

8. Must bookmark this one. Thanks. K&R

[oasis]

13. Trey Gowdy's witch hunt crew should have accessed this info before

sticking the taxpayers with a multi-million dollar tab.

[Mz Pip]

14. They weren't interested in the law

Or the truth. They wanted to smear Clinton and used their power to launch investigations to do just that.

Sadly, there are plenty of people who think investigation = must be guilty of something. I saw plenty of that even on DU. Wishful thinking on their part.

[Her Sister]

15. Thanks Mz Pip!

So am getting a few things from these passages:

He's trying to clarify classification procedures and people that can and cannot classify. HRC herself as SoS had a high enough position to be authorized.

The fact that it's not criminal but falls under an Espionage Act & therefore intention is important and must be proven. Also the fact that people not authorized to classify do so any way. And again, HRC server was not hacked unlike the gov't server/system.

Clinton, as Secretary of State, had the authority conveyed by law to make her own determination about the classification of her emails.