Wednesday, March 18, 2015

Does Mrs. Clinton Have Another "Missing" Form?

Despite the hopes--and fumbling efforts--of Hillary Clinton and her supporters, the e-mail scandal isn't going away anytime soon.

In the latest wrinkle, hapless State Department flack Jen Psaki admitted yesterday that no copy of the Optional Form 109 (OF-109) could be found in Mrs. Clinton's personnel records from her days as Secretary of State.  Known as the "separation form," it is signed by individuals leaving the department (or other federal agencies) and certifies they have turned over all "classified or administratively controlled" materials, as well as all "unclassified documents and papers" relating to official government business.

Ms. Psaki's update came after a week of departmental stonewalling on the separation form issue.  She was quick to point out that Mrs. Clinton's predecessors at State, Condolezza Rice and Colin Powell, didn't sign an OF-109, either.  But there's an obvious difference in how Clinton conducted her electronic communications at State, as compared to Dr. Rice and General Powell.  During her tenure as SecState, Condolezza Rice used standard .gov e-mail accounts, meaning the department had a good handle on her electronic correspondence when she returned to academia.

Colin Powell has also admitted to using a personal e-mail account during his tenure as State.  A spokesman for Powell said most were of a "housekeeping nature" and did not contain any sensitive or classified information.  Mr. Powell did not retain copies of the e-mail and the account he used "has been closed" for a number of years, according to a statement.  Representatives of the former Secretary said Powell will work with the State Department to see if any additional action is required.

Clinton supporters claim that Powell's practices were virtually identical to those of Mrs. Clinton, but there are significant differences.  First, many of the current rules on record keeping were not in effect when Powell served as Secretary of State, and secondly, it has been reported that Powell utilized a personal e-mail from a commercial provider, so back-up copies of his communications could probably be located, if necessary.  Powell never went as far as Hillary, who created her own e-mail domain (, complete with multiple accounts and her own server, located at the Clinton home at Chappaqua, New York.

While much of the controversy remains focused on the "missing" OF-109, and the ultimate disposition of e-mails retained by Mrs. Clinton, there may be another element in this controversy, which could shed more light on her departure from the State Department, and the (apparent) dismissal of standard government security and records disposition requirements.

When Ms. Psaki returns to the State Department podium, reporters would do well to ask about another piece of paper the Standard Form 312, better known as a "Classified Information Non-Disclosure Agreement."  It's a document signed by anyone who has been granted access to classified information, including government employees, military personnel, political appointees, elected officials (and anyone else with a security clearance).  By signing the SF 312, individuals promise to never divulge classified information to other organizations, groups or individuals without determining they have a need for the information and the required clearance.

Additionally, signatories of the SF-312 acknowledge acknowledge that the "unauthorized disclosure, unauthorized retention, or negligent handling of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation."  They also enter into a binding agreement that requires them to return all classified information upon leaving their position, as detailed in various federal statutes:

"I shall return all classified materials which have, or may come into my possession or for which I am responsible because of such access: (a) upon demand by an authorized representative of the United States Government; (b) upon the conclusion of my employment or other relationship with the Department or Agency that last granted me a security clearance or that provided me access to classified information; or (c) upon the conclusion of my employment or other relationship that requires access to classified information. If I do not return such materials upon request, I understand that this may be a violation of sections 793 and/or 1924, title 18, United States Code, a United States criminal law."    

So, there's clearly an overlap between the records disposition rules outlined on the OF-109, and the return of all classified records, as detailed on the SF-312.  So far, all we have is Mrs. Clinton's assurance than none of her e-mails contained sensitive or classified data, and the admission that roughly half of those communications (said to be of a personal nature) have been deleted.

But there's one more interesting portion of the Standard Form 312, found in the last section of the document, the Security Debriefing Acknowledgement:

"I reaffirm that the provisions of the espionage laws, other federal criminal laws and executive orders applicable to the safeguarding of classified information have been made available to me; that I have returned all classified information in my custody; that I will not communicate or transmit classified information to any unauthorized person or organization; that I will promptly report to the Federal Bureau of Investigation any attempt by an unauthorized person to solicit classified information, and that I (have) (have not) (strike out inappropriate word or words) received a security debriefing."

That final paragraph is important, since employees must acknowledge receipt (or non-receipt) of a security briefing, covering all the rules on non-disclosure and return of classified material listed on the form.  Signing the SF-312 is one of the last acts before a person leaves a job that requires access to classified information.  Before departing the State Department for the last time, Mrs. Clinton should have received the required security briefing and it should be documented on the SF-312--the same form she also signed upon entering the job.  

The SF-312 isn't some rare or optional document.  It is part of security clearance folder for anyone who has ever had access to classified information, including former political leaders and cabinet officials.  And, the requirements for protecting and returning classified information are clearly germaine to the current Clinton controversy.  So, where is Hillary's Clinton's SF-312?  There should be a copy on file at the State Department's Special Security Office (SSO), and readily accessible by department officials.

Members of the media--and Congressional investigators--should demand information on the whereabouts of Mrs. Clinton's SF-312.  If it can't be located (like the OF-109), her problems will only get bigger.    

During today's press briefing at State, Ms. Psaki suggested that Mrs. Clinton (and other, former Secretaries of State) were not required to sign the OF-109, because they retain their security clearances to work on their memoirs.  She also stated that signing the OF-109 was part of the process for revoking an individual's security clearance.  But that dog won't hunt, either.  Signing with OF-109 has nothing to do with retaining your clearance; while someone losing their clearance would sign the form, so do former officials and employees who are keeping their clearances, or having them go inactive upon retirement, or moving into a job that doesn't require classified access.  The clear focus of the OF-109 is ensuring former officials turn over official records before they head out the door.

Likewise, individuals with clearances must complete that final section of the SF-312 when they leave a position where they had access to classified information.  The exception, typically, is when the employee or director transfers into a position that requires the same access.  In those situations, the individual is moved "in status" from one organization to another, with their security file passing to the Special Security Office (SSO) at their new employer.

So what job does Mrs. Clinton now occupy that mandates similar access?  High-paid corporate speaker?  Likely Presidential candidate?  If the administration has decided to maintain her access, they should affirm that decision and detail how often Hillary is briefed, and where those presentations occur.  They should also identify the SSO which now controls her security file.  The answers could be quite illuminating.  Out of office, Mrs. Clinton has no compelling need for classified access at this juncture in her career, so there is no reason there shouldn't be a signed SF-312 in her personnel records.  

Back to you, Ms. Psaki. 

Similar thoughts from Shannen Coffin at National Review.            


1 comment:

Brandon E said...

Need to find the DD Form 1848 and DD form 4414. I don't know if the understanding of the proper protection of classified information lies solely on the individuals that used to or currently work with classified or what. So many people don't seem to understand the gravity of what she did and how many rules she broke for her convenience.

I was an intelligence analyst, then moved to industrial security, then became and SSO then finally a Program Security Officer. So I'm pretty familiar with what she has done.

Your question regarding her SIPR and JWICS accounts is a very valid one. If she never intended to use those systems then there's no way she could have done her job as SECSTATE, unless she planned to run even the classified information