The Meaning of "Marked"

This has not been a good stretch for Hillary Clinton.

While she remains the Democratic front-runner for president, there are continuing signs that some voters are kicking the tires on other candidates.  First came word that Senator Bernie Sanders is now within six points of Mrs. Clinton in New Hampshire, a margin fractionally outside the poll's margin of error.  The same survey, commissioned by WMUR-TV, showed Clinton with a double-digit lead over Sanders in the late spring.

And if that's not enough, other Democrats are urging Starbucks CEO Howard Schultz to enter the race.  At this point, there is no indication Mr. Schultz is prepared join the fray, but he has been critical of the "lack of leadership" from government and politicians in recent years, and like Donald Trump, he could personally finance a sustained campaign--if he decides to jump in.

Of course, Mrs. Clinton's biggest problem is the on-going e-mail scandal, which shows no signs of going away.  Earlier this week, we learned the FBI is looking into the security of her private e-mail server, which she used as a substitute for government-run networks.  According to the Washington Post, the bureau has contacted the Denver-based IT firm which managed Clinton's server about the security of the system.  Similar queries were posed to her Washington-based lawyer, David Kendall, about a thumb drive in his possession that contains a number of Clinton e-mails.

Sources contacted by the Post were quick to point out that Mrs. Clinton was not a target of the FBI probe.  But another, unnamed federal official, contacted by the New York Post, said the bureau is, in fact, conducting a criminal investigation.  A former DOJ staffer who was willing to speak on the record noted that the FBI is organized to ferret out wrong-doing, not work as a security consultant:

“My guess is they’re looking to see if there’s been either any breach of that data that’s gone into the wrong hands [in Clinton’s case], through their counter-intelligence group, or they are looking to see if a crime has been committed,” said Makin Delrahim, former chief counsel to the Senate Judiciary Committee, who served as a deputy assistant secretary in the Bush DOJ.

“They’re not in the business of providing advisory security services,” Delrahim said of the FBI. “This is real.”

With these latest revelations, there was also a slight change in parsing by the former secretary of state. When the scandal first broke, Clinton said she was "confident" she never transmitted or received classified information over her system, which was based on a server at her home at Chappaqua, New York.  But on Tuesday, Mrs. Clinton said she never "knowingly" sent or received classified data through her e-mail network.  

And this is where it gets a little fuzzy--by design.  At this point, the fall-back position for Team Clinton seems to rest with the security markings of material that was stored on her server and on that thumb drive in Mr. Kendall's office.  As anyone who has ever handled classified information will tell you, the highest classification level is clearly marked at the top and bottom of each page, and each paragraph is marked as well.  The covers of hard-copy documents reflect their overall classification, and instructions for declassifying are provided as well.  Similar markings are found on electronic versions of classified reports and components of the IT system are clearly labeled to reflect the highest level of material found on the network.  

But let's suppose someone is viewing a classified cable or summary, either in hard-copy form (or electronically), then summarizes the material in a new document or e-mail on an unclassified network.  Do the classification rules still apply?  Of course they do, and more importantly, the individual who placed Secret, Top Secret, or Top Secret/SCI information on the non-secure system has committed a crime.  

However, it is unlikely investigators will find complete, classified documents in the e-mails of Hillary Clinton or others who utilized her network.  For starters, most government computers handling classified information--including those at the State Department--do not allow the uploading or downloading of documents through flash drives or similar devices.  There are obvious exceptions; transgender traitor Bradley Manning copied thousands of documents onto CD-RW media and memory cards for a digital camera, then passed them on to Wikileaks.  

Another recent turncoat, Edward Snowden, also exploited weaknesses in the system to get the information he was looking for.  Working for a defense contractor at NSA, convinced a colleague to let him borrow his log-in credentials.  That gave Snowden access to NSANet, and some of the crown jewels of American intelligence.  His position as a network administrator also allowed him to utilize thumb drives to "move" documents from one system to another. In a matter of weeks, he accumulated literally thousands of intel documents.    

For Hillary and her associates, the process was more convoluted.  The FBI inquiry was requested by the Inspector General of the Director of National Intelligence (DNI), after his staff found classified information on four e-mails provided by Mrs. Clinton (out of a sample batch of 40).  Based on the IG's cryptic description, it appears that information found in those e-mails was similar to that contained in classified intel documents.  That seems to suggest the person(s) who placed classified material on the network simply summarized or paraphrased material they viewed in hard copy, or on systems like SIPRNET (which handles Secret-level material), or JWICS, which is cleared for TS-SCI.  Quite naturally, there were no page or paragraph markings--why call attention to an illegal act?

This much we know: Mrs. Clinton and most of her senior associates utilizing the e-mail system were cleared for the most sensitive information produced and retained by the U.S. government.  They had routine access to the full range of intelligence data, up to the TS-SCI level, and a number of SAR/SAP programs as well.  If you want to discuss that information--without the hassle of creating and utilizing e-mail accounts on SIPRNET or JWICS, just pull bits of material and put them into an unclassified e-mail and send them over an unsecure network.  It's a fair bet that most (if not all) of her e-mails are in the hands of virtually any country with a national signals intelligence (SIGINT) capability.  

All the more reason for the FBI to continue a criminal probe.  Mishandling classified information is a crime (just ask General David Petraeus).  But the Clinton e-mail system went far beyond sharing hard-copy files with a mistress/biographer, and storing them outside a secure facility.  By entering classified material into an unsecure e-mail system, the former Secretary of State and her associates likely exposed a wide range of classified material to intercept and collection by our enemies.  

Ignore the spin.  This is not a matter of ensuring that classified material was secure; it's a question of who deliberately placed sensitive data on a non-secure network and engaged in that practice on a recurring basis.  But determining guilt may be more difficult that you'd think.  Unless there was a system administrator moving classified documents from State Department systems to the Clinton server, investigators may be compelled to compare original intel documents with the e-mails, line-by-line and word-for-word.  In response, Mrs. Clinton and her cronies may claim they thought the information was unclassified (nod, nod, wink, wink), and literally dare DOJ to press charges.  

And there's the rub.  Attorney General Loretta Lynch may decide to take a pass on filing charges, or drag out the investigation over many months, announcing a decision after November, 2016.  That is not to say that Hillary Clinton is off the hook, but given DOJ's recent record in prosecuting any number of Democratic scandals, any day of reckoning is far down the road--if it ever comes.

But Ms. Lynch can't do anything about the damage the e-mail issue is inflicting on Hillary's campaign.  Her opponents smell blood in the water, and more revelations may destroy her latest White House bid, regardless of what happens with the FBI probe.