Frequently Asked Questions (Back to main email story)

1. What was the main charge the FBI was investigating?
2. What about the three email conversations market with a (C)?
3. Why did Clinton accept classified information?
4. How did Clinton handle information she knew was classified?
5. Why were the Classified emails unmarked?
6. How do we know the info is classified if it’s not marked?
7. Were @state.gov emails on an unClassified system?
8. Did she break the law?
9. Did she break a State Department rule?
10. Did she put classified emails at risk of being hacked?
11. Did she fail to preserve records of her emails?
12. Did she delete 30,000 emails after they were subpoenaed?
13. Were Hillary’s public claims true?
14. What agencies did the Classified emails come from?
15. What were the violating authors’ excuses?
16. What was the real reason for the violations?
17. What about the 15,000 new emails discovered in August 2016?
18. Appendix A: More detail on #5, violating authors’ excuses.

Note that (FBI p.1-21) means page 21 of part 1 of the July FBI report. (These answer are compiled from a number of prior drafts and so are slightly disjointed.)

Q1: What was the main charge the FBI was investigating?

“The FBI’s investigation focused on determining whether classified information was transmitted or stored on unclassified systems in violation of federal criminal statutes [FBI Report (page 1)].” They faulted Clinton for having classified information on her “unclassified system,” in other words, on here private server. Some of this information was later declared to be Top Secret. (To top of page)

Q2: What about the three email conversations market with a (C)?

A: Three times during her four years as Secretary a paragraph or two was marked with a (C). This indicated “Confidential,” the lowest classification. The FBI asked the State Dept about these and “State did not provide a determination as to whether any of these three emails were classified at the time they were sent [FBI, p.1-20]. So these are not counted by the FBI as classified emails.

These few little markings are the only Classification markings of any kind found on any of Clinton’s emails [from FBI-1, p.20].

One of the chains with a “(C),” dated April 9, 2012, had the subject line “Call to President Banda” [FBI, p.2-8]. When the FBI informed Clinton that this email was Confidential and asked her what she thought of that, she explained she was not concerned that the email contained Confidential information because she “believed the email amounted to a condolence call” and she questioned its classification.

In fact President Mutharikaof of Malawi had died on April 5th, but this had been kept secret for a few days, after which Vice President Joyce Banda became President of Malawi. Almost certainly the paragraph was marked Confidential simply because of a misapplied rule concerning information gathered from foreign governments. (Malawi is a small landlocked country in South-East Africa with a GDP about four times smaller than Google’s.)

“Confidential” information is defined to be information that would damage national security if publicly disclosed without the proper authorization. Damage national security? (To top of page)

Q3: Why did Clinton accept classified information? Did she know?

No, she didn’t know that the information she received would, years later, retroactively be deemed classified when originally sent. For example, Clinton receiving classified information from Dennis Ross, a foreign service professional who served under Carter, Clinton, H. W. Bush, and Obama. It was not marked as classified, and it came from an unclassified server (probably his private email account, since he was not then working for the government). But later the FBI classified it as Secret. We don’t know why.

Sending it from one unclassified server to another was a strong indication to Clinton that Ross must not think the email was classified. The fact that he did not mark it classified is another. Since he had 35 years of experience with this, starting in the Department of Defense, it was natural for Clinton to assume he was not mishandling classified information.

Of course, the FBI questioned Clinton about the classified emails that were sent to her; here is their summary: “Clinton did not recall receiving any e-mails she thought should not have been on an unclassified system. She relied on State officials to use their judgment when e-mailing her and could not recall anyone raising concerns with her regarding the sensitivity of the information she received at her e-mail address.” [FBI p.1-26]

Here are a few details from her answers regarding specific emails.

• After mentioning the names of the individuals on the displayed email, CLINTON stated they were experienced foreign service professionals and she had no reason to doubt their judgement and ability to handle classified information.
• CLINTON stated the displayed email was forwarded to her and she relied on the judgment foreign service officers and others in the “thick” of what was happening.
• CLINTON thought XXXXX was a competent professional who served in some of State’s most difficult posts. … CLINTON stated XXXXX must have believed this email was ”SBU” because that was how he marked it CLINTON understood SBU to mean Sensitive But Unclassified.

It is worth mentioning that this last comment indicates some of the emails in question were actually marked as unclassified when they were sent to her, and only retroactively classified recently.

Since all the email she received were neither marked classified, nor sent to her in a way that classified information must be sent, and since it was sent by seasoned professionals at DOD, CIA, NSA etc., she naturally assumed she had received no classified information. And she new she had not sent any of her own because, as Secretary she was an Original Classification Authority (OCA). And an OCA has the authority to decide what is classified information. (To top of page)

Q4: How did Clinton handle information she knew was classified?

There is a “classified system” for sending classified info, and Clinton used it every day. It’s usually done from inside a Sensitive Compartmented Information Facility (SCIF). Her office was actually inside a SCIF so she could not even bring her Blackberry into her office. It is not even possible to “cut and paste” from the classified system into the unclassified system.

Because of her clarity regarding this distinction, she never sent information she believed was classified on her unclassified Blackberry, and she never thought others would be sending such information to her—from their unclassified system to hers.

The FBI reports no evidence that Clinton put any classified information into her emails. And with the two systems so clearly separate, it never occurred to her that the professionals with years of experience would be doing this. But the FBI does say she sent classified information from her unclassified home server. This is because she replied to emails containing unmarked secret information that were sent to her. Since her replies automatically include the original email, they contained classified information. (To top of page)

Q5: Why were the Classified emails unmarked?

According to the FBI Report, those who sent Clinton emails with classified information either (1) thought it was no classified, or (2) thought it was and knew they were sending it from an unclassified emails server over an unclassified system to another unclassified server. In the first case the answer is obvious, but what about the second case?

It’s easy to tell if you’re on an unclassified email server, like state.gov, because they can send and receive emails over the internet. A classified email server can’t do that. So everyone sending Clinton classified information knew they were using unclassified system, which is against the rules. Of course when you’re breaking the rules, even if you think it’s for a good reason, you don’t want to advertized the fact that you are doing that.

(The FBI acknowledges that classified emails were being sent from unclassified systems: “approximately 193 individual e-mail exchangeseee that were classified from the CONFIDENTIAL to TOP SECRET levels at the time the e-mails were drafted on UNCLASSIFIED systems and sent to or from Clinton’s personal server [FBI, p.1-20].”)

And that’s why they didn’t mark anything they sent to Clinton as Confidential, Secret or Top Secret. (To top of page)

Q6: How do we know the info is classified if it’s not marked?

A: In 2015 the State Dept had to release the emails to the public. Before doing so, they needed to check if any should now be classified or withheld from the public (apparently there is another excuse that can be used for this). The result was that they said the State Department said 2092 of the emails were currently Confidential, one was Secret and none Top Secret [FBI p.1-21-22].

But this did not answer the question of whether they were classified at the time they were sent. So the FBI select the emails they thought might have been classified when sent and asked the agencies they came from what they thought. So in late 2015 or in 2016, determinations were made about whether the emails should have been classified at that time they were sent. FBI Director Comey said their were 110, while the FBI Report says 193. The 110 number is most widely cited. (To top of page)

Q7: Were @state.gov emails on an Unclassified system?

Yes. That means they were saved on an sent from an unclassified server. Here are summaries of five quotes just below that prove this from several angles.

1. The state.gov email system is unclassified — not for classified information. (NYT)
2. OpenNet is the unclassified State Dept e-mail and web-browsing system. (State)
3. Top Secret e-mails were drafted on unclassified systems and sent to Clinton. (FBI)
4. Clinton’s staff used State-provide OpenNet e-mail accounts. (FBI)
5. Multiple  officials who authored e-mails with classified info provided the FBI with “reasons for sending the e-mails on unclassified systems.” (FBI)

Point 5 is particularly telling. The FBI was asking the officials who wrote classified emails why they wrote them on and sent the from an unclassified system and then sent them to Clinton. Clearly, the FBI views their email systems (at the State Dept, the Dept of Defense and other agencies) as unclassified, and thinks they should not have been using them for sending classified messages anywhere.

The excuses of these officials show that they knew the FBI was right about this. (To top of page)

Here are the full quotes and sources. (FBI refers to the July FBI report)

1. The NY Times reports, “Many of the emails were sent over the State Department’s unclassified system, state.gov, which is considered secure but not at the level of the State Department’s system for emailing classified information.”
2. The State Dept tells us, “OpenNet is the Sensitive but Unclassified (SBU) network in the Department.  It provides access to standard desktop applications, such as word processing, e-mail, and Internet browsing.”
3. The FBI report tells us, “193 individual e-mail exchanges that were classified from the CONFIDENTIAL to TOP SECRET levels at the time the e-mails were drafted on UNCLASSIFIED systems and sent to or from Clinton’s personal server. [FBI p.1-20]
4. “During Powell’s tenure, State introduced unclassified desktop external email capability on a system known as OpenNet” [FBI p.1-11]. “Clinton’s immediate staff used their personal e-mail accounts in combination with their State-provided OpenNet e-mail accounts for official State business [FBI p.1-14].”
5. “The FBI interviewed multiple officials who authored and/or contributed to e-mails, the content of which has since been determined to contain classified information. … During FBI interviews, the authors of these e-mails provided context surrounding the e-mails in question as well as reasons for sending the e-mails on unclassified systems. [FBI p.1-22].”  (To top of page) 

Q8: Did she break the law?

A: No. When asked this question, FBI director Comey replied “In connection with her use of the email server? My judgment is that she did not.” Politico

Here’s the law: U.S. Code § 798 – Disclosure of classified information: Whoever knowingly and willfully communicates, furnishes, … for the benefit of any foreign government to the detriment of the United States any classified information …

First, the classified information never reached any foreign government so it was not detrimental to the US. Second, what Clinton did was certainly not a knowing and willful communication with anyone. Her intent was to keep both her private emails and here State Dept emails safe from prying eyes. So it’s not even close. There was no intent to leak secrets to foreign governments and there is no evidence (and much evidence to the contrary) that any of the emails leaked. (To top of page)

Q9: Did she break a State Department rule?

A: Yes. But department rules are not laws. There is rarely any penalty specified for breaking them. There is no State Dept rule against using your private email for State-Dept business. There is only a “general policy that normal day-to-day” transmission of “Sensitive But Unclassified” (SBU) information be transmitted on an Authorized Information System (Name@state.gov email). A small fraction of Clinton’s emails were marked as SBU. For these emails she violated the “general policy,” and they she should have made her use her SSHC@state.gov email for these. But they didn’t.

Although the above rule is the one discussed in the press, there would seem to be a rule that classified information should not be conveyed over unclassified systems. But perhaps not, since the FBI Report says this: “Since there isn’t a classified system that allows DoS to communicate with its foreign counterparts, conversations that are held with foreign partners in unclassified channels are later “up-classified” to Secret to protect the information [FBI p.3-6].” In other words, the State Dept’s main business—talking to foreign nationals—would always violate a rule against communicating classified information through unclassified channels. (To top of page)

Q10: Did she put classified emails at risk of being hacked?

A: Not knowingly, and probably not at all. All emails systems are at risk. Hers was less well run, but it presented a vastly smaller target than the State Departments @state.gov system. While it can never be absolutely proven that a system has not been hacked, the FBI found no evidence that Clinton’s server was hacked and they found evidence that possible hacking attemps (there are always such attempts) fail on the three occasions they are aware of.

Hacking failures according to the FBI:

1. On January 9, 2011, Cooper sent Abedin an e-mail stating someone was attempting
   to “hack” the server, prompting him to shut it down. … The FBI’ s investigation did not identify successful malicious login activity associated with this incident.
2. “An examination of log files from March 2013 indicated that IP addresses from Russia and Ukraine attempted to scan the server on March 15, 2013, the day after the Blumenthal compromise, and on March 19 and March 21, 2013. However, none of these attempts were successful [FBI p.1-32].”
3. FBI extracted the Thread-Index and Message-ID values for each identified confirmed classified e-mail relevant to this investigation … in order to develop specific electronic signatures that could be used when searching for exact references in large data repositories. In an effort to identify whether any confirmed classified e-mails may have been compromised through computer intrusion methods, the FBI conducted signature-based searches in available databases, … To date, the signature-based searches in USG databases have not identified the relevant e-mails.

Massive hacks of the State Dept email and cable systems:

On 28 Nov 2010 the State Department sprung a massive Wikileak and lost 251,287 Classified “cables” (these are just emails transmitted on a classified system). For the next year, Clinton spent much of her time attempting to repair the damage from this massive leak of classified State Dept emails, known as Cablegate.

Then in Oct 2013 an Indonesian hacker placed this on the unclassified state.gov server:

But the State Dept did not secure it unclassified email server and in Nov 2014, Reuters reported they had been seriously hack some time earlier and the hack was continuing. And by Mar 2015 the hack was continuing and intelligence officials briefed on the investigation said it was “worst ever” cyberattack intrusion against a federal agency.

The State Dept said “We have no reason to believe classified information was compromised.” But they obviously meant only that the classified system was not compromised. However we now know that classified emails are frequently sent through the unclassified system. (To top of page)

Q11: Did she fail to preserve records of her emails?

A: No. Because she saved them on her private servers nearly all were preserved. Supposedly if she had used her State email, they would have all been automatically preserved. But in fact, essentially all of her emails came from accounts on that system, and all she sent went to accounts on that system. So they were all preserved in the government system for a while. Unfortunately, that system was in tatters and lost or misplaced most of the emails it was supposed to preserve. So without her private server, only a fraction of her emails would have been preserved. (To top of page)

This is only important because the Republicans claim that Clinton did not preserve her emails in the State Dept computer system. But almost all of her emails came through that system. And when they didn’t land there on their own, Clinton deliberately forwarded them to one of her staff to preserve them.

The reason they did not just pull Clinton’s old emails off of the state.gov server is because the State Dept lost most of them. “In a report released Wednesday, the inspector general  [of the State Dept] found that of the one billion emails sent in 2011, only 61,156 were preserved. That number dropped to 41,749 in 2013.” (The Hill, Mar 11, 2015) If Clinton had not saved her emails on her own server, we would have many fewer of them.

Q12: Did she delete 30,000 emails after they were subpoenaed?

A: Yes, but they were not the ones subpoenaed. Otherwise she would be in huge trouble. She deleted her private emails. Even if these had been on her State Dept email account she would have been allowed to decide which ones were her private emails and delete them.

• Dec 5, 2014, Clinton provides 30,000 emails and 55,000 pages to the State Dept — all of her work-related emails.
• March 4, 2015: The Benghazi committee issues a subpoena requiring Clinton to turn over all emails from her private server related to the incident in Libya.
• March 27, 2015: Clinton’s lawyers send a letter to the Benghazi committee saying that the State Department already got those on Dec 5, 2014.  (To top of page)

Q13: Were Hillary’s public claims true?

A: One honest mistake and some the others mostly true

• Feb 4, 2016: “I never sent or received any classified material.”

Not true, but an honest mistake. She still didn’t know gov spooks deliberately broke the rules and sent her unmarked secrets.

• On July 2, 2016: “Let me repeat what I have repeated for many months now, I never received nor sent any material that was marked classified.”

About 99% true. None of the Secret and Top Secret ones were marked at all. Three conversations had a paragraph or two marked with “(C)” for confidential, but had no “Confidential” header. And, when asked if they were confidential, the State Dept did not reply.

• In an interview with Fox News in late July 2016, Clinton stated:
  • “Director Comey said my answers were truthful,
  • and what I’ve said is consistent with what I have told the American people, that there were decisions discussed and made to classify retroactively certain of the emails.”

As to the first part, Comey said “We have no basis to conclude she lied to the FBI.”

As to the second part, Politifact reads that as saying that “Comey said everything she told the America people was true.” Comey didn’t say that, so they gave her “Pants on Fire.” I read it as saying “What she told the FBI is consistent with here telling the American people that certain emails were retroactively classified.” In other words, they were not marked as Classified when she got them or replied to them. And that, as just noted, is 99% true as the FBI report of her interview makes clear. (To top of page)

Q14: What agencies did the Classified emails come from?

If there is any blame for these inappropriate emails, it lies with those in the CIA, the Dept of Defense, Dept of State, the NSA, NGA and even the FBI (FBI p.1-21) who author the classified information. They put the classified information into their own unclassified systems sent it through the State Dept’s unclassified system. And they failed to mark it as classified.

Here the quote from the FBI Report: “In addition to State classified equities, the investigation determined the 81 e-mail chains contained classified equities from 5 other USIC agencies: the CIA, DOD, FBI, National Geospatial-Intelligence Agency (NGA), and National Security Agency (NSA). [FBI, p.1-21]”  (To top of page)

Q15: What were the violating authors’ excuses?

The FBI never pointed to any classified information that originated with Clinton, but it did interview multiple officials who authored classified emails on unclassified systems. 

Here is a brief summary of the their reasons for violating the protocol and their claims the emails were actually not classified (so neither they nor Clinton were in violation). [FBI p.1-21–25] (more detail)

• A former DOD official: “to quickly coordinate public affairs responses.”
• The State Operations Center: “because of the need to quickly elevate information at times when the intended recipients did not all have immediate access to classified e-mail accounts.” (Classified emails are Name@state.sgov.gov)
• “State Dept employees … provided reasons for why they did not believe the information in the emails was classified.”
• [Redacted] stated the right method of communication was whichever method allowed for the fastest possible dissemination of the message.
• “Authors of the e-mails stated that they used their best judgment … to carefully word e-mails on UNCLASSIFIED networks so as to avoid sensitive details or “talk around” classified information.
• Mills [Clinton’s chief of Staff] … stated that there was nothing in them that concerned her regarding their transmission on an unclassified e-mail system.
• Sullivan [Clinton’s deputy], … provided reasons why the e-mails may have been sent by him or others on unclassified systems. … Sullivan also indicated that, for some of the e-mails, information about the incidents described therein may have already appeared in news reports.
• Abedin [Clinton’s deputy] noted that she had only conveyed the information from the e-mail and had not originated it. She also stated that she relied upon the sender to properly mark the e-mail for classification purposes.

(For even more detail see Appendix A below.) (To top of page)

Q16: What was the real reason for the violations?

The Washington Post answers this as follows:

“It’s common” that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who’s now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information.

“It’s common knowledge that the classified communications system is impossible and isn’t used,” said one former high-level Justice Department official.

For many purposes, they are slow and bothersome to use. Also, much information is over-classified. For example things already reported in the press sometimes get classified. So everyone cheats from time to time and sends classified material through the standard convenient

Of course, even their actions entailed no intent to put such information into the wrong hands and indeed none of it ended up there. Moreover that had legitimate reasons for cutting corners in a very cumbersome system. (To top of page)

Q:17 What about the 15,000 new emails discovered in August 2016?

On Aug 22, every media outlet blared something like the pro-Clinton’s Washington Post headline: “The FBI found 15,000 emails Hillary Clinton didn’t turn over. Uh oh.” The idea was they would finally find a smoking regarding Benghazi.

But it turned out (Sept 7, CBS) that only 30 were related to Benghazi and all but one had already been turned over. That one said “I watched with great admiration as she dealt with a tough and personally painful issue in a fair, candid and determined manner, …” It was just a compliment after Clinton testified before a 2013 Senate panel about Benghazi, forwarded to Clinton by a State Dept aide. Notice that his happened long after Clinton was no longer Sect. of State. (To top of page)

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Sources:

• 2016-07-06 Overblown, Slate
• 2016-01-22 22 Top Secret, Politico “Does EB know what you are doing [with] I’m?”

 

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Appendix A (What were the violating authors’ excuses?)

• “a former DOD official explained that he sent an e-mail, since deemed to contain classified information, in order to quickly coordinate public affairs responses by State and DOD. [p 1-23]

In this case the classified information is sent from an unclassified system at the Department of Defense to the State Department and finds it’s way to Clinton.

• Individuals, including those in the State Operations Center who were responsible for passing information to high-level State officials, … noted that such information was generally sent on State unclassified e-mail systems because of the need to quickly elevate information at times when the intended recipients did not all have immediate access to classified e-mail accounts.

In this case lower level State Dept officials went classified info on unclassified system and it found its way to Clinton.

• State Dept employees … provided reasons for why they did not believe the information in the emails was classified.

In this case, the authors did not think the information that sent to Clinton was classified.

• [Redacted] stated the right method of communication was whichever method allowed for the fastest possible dissemination of the message. He also stated that information he received from other USG agencies was “technically probably classified” but that “you can’t do business that way.”

In this case again, some classified information was apparently sent Clinton from other government agencies on unclassified systems and reach Clinton.

• authors of the e-mails stated that they used their best judgment in drafting the messages and that it was common practice at State to carefully word e-mails on UNCLASSIFIED networks so as to avoid sensitive details or “talk around” classified information.

In this case, the authors thought they had avoided the classified information, but it was decided in 2016 that they had not. So again classified information was sent to Clinton on unclassified State Dept systems.

• Mills [Clinton’s chief of Staff] was provided seven emails which contained information later determined to be classified. She stated that there was nothing in them that concerned her regarding their transmission on an unclassified e-mail system.

In this case information later determined to be classified was again originated in the unclassified State Dept system was sent to Clinton. In the authors view, the information was not classified.

• Sullivan [Clinton’s deputy], … communicated extensively with Clinton by e-mail. Their communications included both e-mails written by Sullivan and e-mails written by others that Sullivan forwarded to Clinton. … provided reasons why the e-mails may have been sent by him or others on unclassified systems. … Sullivan also indicated that, for some of the e-mails, information about the incidents described therein may have already appeared in news reports.

Again the Classified information originated on unclassified system. Again, Sullivan question the recent decision retrospectively classify the information, stating it might have already been public.

• When asked about an e-mail subsequently determined to contain CONFIDENTIAL information, Abedin noted that she had only conveyed the information from the e-mail and had not originated it. She also stated that she relied upon the sender to properly mark the e-mail for classification purposes and did not take it upon herself
  to question the sender’s judgment as to such marking.

Again the information came to Clinton inappropriately from the unclassified State Dept system.

• Although the FBI appears only to have questioned State Dept officials and one DOD officials, it notes that “In addition to State classified equities, the investigation determined the 81 e-mail chains contained classified equities from 5 other USIC agencies: the CIA, DOD, FBI, National Geospatial-Intelligence Agency (NGA), and National Security Agency (NSA). [p 1-21]

(To top of page)