Author: Josh Gernstein
The U.S. intelligence community has retreated from claims that two emails in Hillary Clinton’s private account contained top-secret information, a source familiar with the situation told POLITICO.
After a review, intelligence agencies concluded that the two emails did not include highly classified intelligence secrets, the source said. Concerns about the emails’ classification helped trigger an ongoing FBI inquiry into Clinton’s private email setup.
Intelligence Community Inspector General I. Charles McCullough III made the claim that two of the emails contained top-secret information; the State Department publicly stated its disagreement and asked Director of National Intelligence James Clapper’s office to referee the dispute. Now, that disagreement has been resolved in State’s favor, said the source, who spoke on condition of anonymity.
A spokesman for Clapper said the review of the emails has not been completed. “ODNI has made no such determination and the review is ongoing,” Clapper spokesman Brian Hale said.
However, the source said State Department officials had already received instructions from intelligence officials that they need not use the strictest standards for handling the two emails in dispute – meaning that they aren’t highly classified.
Hale declined to comment on whether any changes had been made in recent days to the handling requirements for the disputed emails.
Intelligence officials claimed one email in Clinton’s account was classified because it contained information from a top-secret intelligence community “product” or report, but a further review determined that the report was not issued until several days after the email in question was written, the source said.
“The initial determination was based on a flawed process,” the source said. “There was an intelligence product people thought [one of the emails] was based on, but that actually postdated the email in question.”
A senior intelligence official told POLITICO last month that the disputes over the classification of Clinton’s emails would take some time to adjudicate. “The process is ongoing and is likely to be a lengthy one due to the volume of material and the litigation aspects,” said the official, who asked not be named.
State Department spokesman John Kirby said Friday he was unaware of any resolution of the classification issue regarding the messages McCullough’s office said had been deemed “top secret.”
“As far as I know we’ve received no final decision by the intelligence community with respect to these two emails,” Kirby said at a daily briefing for reporters. “As far as we know, that process is ongoing.”
One curious twist to the classification dispute is that it is not entirely clear who has authority to resolve it. State spokesmen have repeatedly said that the diplomatic agency has asked Clapper’s office to review the issue, but the intelligence chief’s office has never acknowledged the power to override an intelligence agency’s determination on classification or to order State not to release information it considers unclassified.
There is an interagency committee to hear appeals on declassification issues, the Interagency Security Classification Appeals Panel. The group, run out of an office at the National Archives, usually considers disputes about historical information. Kirby said Friday he was unsure whether that panel was involved in the current dispute or why State raised its concerns with Clapper’s office instead.
A top expert in classification procedures called the reported determination about the disputed emails “an astonishing turn of events.”
“It’s not just a mistake,” Steven Aftergood of the Federation of American Scientists said of the initial “Top Secret” claim. “It was a transformative event in the presidential campaign to this point. It had a potential to derail Clinton’s presidential candidacy.”
Aftergood said Clapper’s office should be credited for seriously reconsidering the earlier conclusions by intelligence agencies.
“Usually, when an agency commits itself to a judgment that is this consequential, the agency will tend to dig in its heels and insist — no matter what — it was right. What’s unusual here is an agency said we reconsidered and we changed our mind. That’s a difficult thing to do, and they’re liable to be attacked for doing it,” Aftergood said.
A spokesman for Clinton’s presidential campaign welcomed the reported development, while allies said the news vindicates her.
“The inspector general’s determination always seemed arbitrary and questionable, and we are grateful that it appears the DNI may be confirming that,” spokesman Brian Fallon said. “This would illustrate the subjective nature of the classification rules that are at the heart of this matter.”
“DNI Clapper’s determination is further evidence that there was no wrongdoing by Secretary Clinton,” said Sen. Dianne Feinstein (D-Calif.). “The classification process is complex and subjective, but this confirms Secretary Clinton did not send classified information through her email account. It’s time to put this issue behind us and move on.”
In an Aug. 11 memo to 17 lawmakers, McCullough said the two emails “include information classified up to TOP SECRET//SI/TK/NOFORN.” The subject of the emails has never been publicly confirmed, but published reports have said one refers to North Korea’s nuclear program and another to U.S. drone operations. The acronym “SI” in the classification marking refers to “signals intelligence,” and a footnote in McCullough’s memo references the work of the National Geospatial Intelligence Agency, which oversees U.S. spy satellites.
Kirby said in September that the agency believed State officials got some of the information in the disputed emails from sources different from the highly sensitive sources used by intelligence agencies.
“One thing that’s important to remember is that very often the State Department and the intelligence community acquire information from separate channels, and thus there can be more than one report about a certain issue or an event. And some of those reports can be derived wholly through unclassified means, and some are derived through classified means,” Kirby told reporters.
Various officials have confirmed that none of the Clinton emails was marked classified, although hundreds have now been deemed as such by State, nearly all at the Confidential level — the lowest tier of classification.
McCullough’s August memo said Congress would be provided “updates” on the situation. However, it’s unclear whether any written notification of the withdrawal of the “Top Secret” classification has been shared with lawmakers. A spokeswoman had no immediate comment for this story.
State or other agencies may eventually determine that the emails in question contain classified information, but the recent action cleared State to handle the two emails in State’s standard FOIA system, which is authorized only for information classified up to the “Secret” level — the middle of the three main tiers of national security information.
The two emails are part of a set of four emails McCullough’s investigators flagged after obtaining access earlier this year to a sample of 40 emails among the 30,000 Clinton stored on a private server and provided to her former agency last December. “My office’s limited sampling of 40 of the emails revealed [that] four contained classified [intelligence community] information that should have been marked and handled at the SECRET level,” McCullough wrote to lawmakers on July 23.
Concerns about the four emails McCullough’s investigators isolated appear to have set in motion a series of critical events in the email saga. State stepped up its efforts to have Clinton’s private attorney David Kendall return thumb drives.
State decided back in May that one email in the Clinton collection contained “Secret” information about arrests possibly linked to the attack on U.S. facilities in Benghazi. At that time, Undersecretary of State for Management Patrick Kennedy asked Kendall to delete all copies of that email and return all paper copies to the department. Kendall declined to delete the electronic copies because of outstanding preservation requests from inspectors general and congressional committees.
However, the classification of that email as secret did not set off the scramble that began in late July when the intelligence inspector general flagged the set of four from the sample of 40. The flagging of those four emails by the ICIG led to a formal referral to the FBI of a potential counterintelligence breach.
Within days, the FBI contacted Kendall asking him to turn over the thumb drive, which he did in early August. On July 31, Kennedy also sent urgent letters to lawyers for two top Clinton aides, Cheryl Mills and Huma Abedin, asking that all the federal records in their possession be immediately returned to the government, along with all copies.
FBI Director James Comey has since confirmed his agency is conducting a review of the matter. An FBI spokeswoman declined to comment when asked what impact the classification developments would have on the agency’s ongoing probe.
While disclosures of information classified at the “Secret” level can trigger an investigation, Aftergood said the conclusion that the two emails were not “Top Secret” could have some impact on how the FBI proceeds.
“That would tend to reduce the urgency of the initial referral,” he said.