I just want to make a quick follow on to Anne Laurie’s post by getting to the real meat of the issue that the New York Times framed the reporting on Secretary Clinton from 23 July 2015 forward by publishing an inaccurate story with a thoroughly misleading headline. Leave all the self defensiveness of different NY Times reporters aside. It is all sound and fury signifying nothing but the all too human self defensiveness when someone is involved with a major screw up.
Since this is going to be long, here’s the Bottom Line Up Front (BLUF) since 1/2 the post is going to be after the page jump.
Bottom Line Up Front
- The New York Times wrote an inaccurate story with a completely misleading headline that framed all future reporting on this issue and which also further framed Secretary Clinton as criminal in her behavior as Secretary of State.
- As a result the New York Times blew the larger story, which is that US governmental IT is so bad and lagging, not to mention insecure, that utilizing a private server was both not prohibited according to the rules in place at the time that Secretary Clinton became Secretary of State, and that it still isn’t much better.
- That the real political question, if there really was one, was about political calculus and optics. As in should Secretary Clinton have been considering the potential future political optics when deciding to go with the personal server if she was still considering running for President again in the future?*
- Reporters, both at the New York Times and other newspapers, networks, and/or platforms DID NOT then and DO NOT now understand classification, classification issues, nor the classification review that occurs when a FOIA request is made!
- Political reporters did not realize then, and still do not realize now, that they were being manipulated to achieve the aims of Judicial Watch in an attempt to achieve Judicial Watch’s political goals in regard to both Secretary Clinton and the 2016 election.
And now on to the actual post.
The real issue here is that the New York Times got the initial reporting wrong, used a terribly misleading headline, and that almost three years later seemingly NO ONE in the news media, especially the US political news media, still has any understanding of how classification works! This whole mess is the result of reporters not bothering to learn, or acting as if they don’t know, how the actual Freedom of Information Act (FOIA) process works, including classification review. That whenever a FOIA request is made a review is done to determine if classified information can now be declassified and released pursuant to the request. And, equally importantly, that material that was deemed unclassified at the time it was created and/or transmitted should now be retroactively up classified as a result of changed circumstances. Nor did anyone bother to actually investigate that all of this resulted from Judicial Watch weaponizing the FOIA process in an attempt to create just this type of situation, which it could then exploit the political news media in order to achieve Judicial Watch’s own political goals.
On 23 July 2015, the Times then public editor, Margaret Sullivan, wrote an article delineating what and how the Times reporting had gotten wrong:
The story certainly seemed like a blockbuster: A criminal investigation of Hillary Rodham Clinton by the Justice Department was being sought by two federal inspectors general over her email practices while secretary of state.
It’s hard to imagine a much more significant political story at this moment, given that she is the leading candidate for the Democratic nomination for president.
The story – a Times exclusive — appeared high on the home page and the mobile app late Thursday and on Friday and then was displayed with a three-column headline on the front page in Friday’s paper. The online headline read “Criminal Inquiry Sought in Hillary Clinton’s Use of Email,” very similar to the one in print.
But aspects of it began to unravel soon after it first went online. The first major change was this: It wasn’t really Mrs. Clinton directly who was the focus of the request for an investigation. It was more general: whether government information was handled improperly in connection with her use of a personal email account.
Much later, The Times backed off the startling characterization of a “criminal inquiry,” instead calling it something far tamer sounding: it was a “security” referral.
And the evolving story, which began to include a new development, simply replaced the older version. That development was that several instances of classified information had been found in Mrs. Clinton’s personal email – although, in fairness, it’s doubtful whether the information was marked as classified when she sent or received those emails. Eventually, a number of corrections were appended to the online story, before appearing in print in the usual way – in small notices on Page A2.
But you can’t put stories like this back in the bottle – they ripple through the entire news system.
So it was, to put it mildly, a mess. As a result, I’ve been spending the last couple of days asking how this could happen and how something similar can be prevented in the future. I’ve spoken to the executive editor, Dean Baquet; to a top-ranking editor involved with the story, Matt Purdy; and to the two reporters, Matt Apuzzo and Michael S. Schmidt.
The story developed quickly on Thursday afternoon and evening, after tips from various sources, including on Capitol Hill. The reporters had what Mr. Purdy described as “multiple, reliable, highly placed sources,” including some “in law enforcement.” I think we can safely read that as the Justice Department.
The sources said not only was there indeed a referral but also that it was directed at Mrs. Clinton herself, and that it was a criminal referral. And that’s how The Times wrote it initially.
“We got it wrong because our very good sources had it wrong,” Mr. Purdy told me. “That’s an explanation, not an excuse. We have an obligation to get facts right and we work very hard to do that.”
By Friday afternoon, the Justice Department issued a terse statement, saying that there had been a referral related to the potential compromise of classified information, stating clearly that it was not a criminal referral. Mr. Purdy says he remains puzzled about why the initial inaccurate information was confirmed so clearly. (Update: Other news outlets also got confirmation of the criminal referral as they followed The Times’s story. They did not report, as an earlier version of this post suggested, that she herself was the target of the referral.)
I want to highlight something that I quoted from Sullivan above because I think it is highly significant:
(Update: Other news outlets also got confirmation of the criminal referral as they followed The Times’s story. They did not report, as an earlier version of this post suggested, that she herself was the target of the referral.)
Sullivan clearly recognized that The Times reporting set up all the subsequent reporting. This is significant. Had The Times gotten it right, then the framing would not have been set that there were two criminal referrals for Secretary Clinton made by two Inspectors General regarding her handling of emails. The Times was the initial point of transmission, as the paper of record, for this inaccurate information.
Here’s the actual truth about classified information transmitted to Secretary Clinton by email and therefore through the Clinton server. It was provided, under oath, by former FBI Director Comey to the House Oversight Committee in his public testimony in July 2016. (emphasis mine)
On Tuesday, FBI Director James Comey stated with respect to former Secretary of State Hillary Clinton’s emails: “Only a very small number of the emails containing classified information bore markings indicating the presence of classified information.”
Republicans immediately pounced on this statement to accuse Secretary Clinton of lying when she stated previously that she did not send or receive any information marked classified.
At today’s Oversight Committee hearing, Director Comey provided significant new information about these emails that debunked this Republican conspiracy theory.
First, Director Comey explained that he was talking about only three emails out of the 30,000 his office reviewed, or 1/100 of 1% of the emails.
Second, Director Comey explained that these three specific emails were not properly marked as classified pursuant to federal guidelines and manuals. They did not have a classification header, and they did not list the original classifier, the agency and office of origin, the reason for classification, or the date for declassification. Instead they included only a single “(c)” for “confidential” on one paragraph lower down in the text.
Finally, Director Comey explained that it would have been a “reasonable inference” for Secretary Clinton to “immediately” conclude that these emails were not in fact classified. Here is the exchange between Director Comey and Rep. Matthew Cartwright:
Rep. Cartwright: Those three documents with the little “c”s on them, were they properly documented? Were they properly marked according to the manual?
Director Comey: No.
Rep. Cartwright: According to the manual, and I ask unanimous consent to enter this into the record, Mr. Chairman. According to the manual, if you’re going to classify something, there has to be a header on the document, right?
Director Comey: Correct.
Rep. Cartwright: Was there a header on the three documents that we’ve discussed today that had the little “c” in the text someplace?
Director Comey: No, there were three e-mails. The “c” was in the body in the text, but there was no header on the email or in the text.
Rep. Cartwright: So if Secretary Clinton really were an expert at what’s classified and what’s not classified and we’re following the manual, the absence of a header would tell her immediately that those three documents were not classified. Am I correct in that?
Director Comey: That would be a reasonable inference.
In addition, the State Department spokesperson made clear yesterday that these emails, which discussed call information for the Secretary, included these “c”s by mistake, and the information was not in fact classified:
“Generally speaking, there’s a standard process for developing call sheets for the Secretary of State. Call sheets are often marked – it’s not untypical at all for them to be marked at the confidential level – prior to a decision by the Secretary that he or she will make that call. Oftentimes, once it is clear that the Secretary intends to make a call, the department will then consider the call sheet SBU, sensitive but unclassified, or unclassified altogether, and then mark it appropriately and prepare it for the secretary’s use in actually making the call. The classification of a call sheet therefore is not necessarily fixed in time, and staffers in the Secretary’s office who are involved in preparing and finalizing these call sheets, they understand that. … Those markings were a human error. They didn’t need to be there.”
If you go back to Margaret Sullivan’s column you can read her explanation for how the New York Times got it wrong – from the initial write up, to the incorrect and misleading headline (which was really the framing device), to the hinky ways they did the corrections. Sullivan’s explanation is factually accurate, but wrong. The New York Times reporters, and every other reporter that followed in their footsteps, got it wrong because they didn’t understand how classification works and the differences between an illegal leak and spillage. From the recent hyperbolically breathless reporting regarding Jim Comey’s memos it is clear that none of these highly compensated, and in some cases now Pulitzer Prize winning, reporters still DO NOT HAVE A FUCKING CLUE ABOUT HOW ANY OF THIS WORKS!!!!!!!!!
Scoop from @byrontau and @aviswanatha: Two of the memos Comey gave a friend outside the government contained information now considered classified, which has prompted a Justice Department inspector general review. https://t.co/w2jwSYPJkk
— Rebecca Ballhaus (@rebeccaballhaus) April 20, 2018
Here’s what an actual legal experts on classification has to say:
OK, this is serious and Comey may have gotten himself into some trouble.
Comey, however, was almost certainly an Original Classification Authority. If he disseminated the memoranda when they were still unclassified, and DOJ later retro-classified them, he's likely fine. https://t.co/CWX6SeFeYP
— Bradley P. Moss (@BradMossEsq) April 20, 2018
And to follow up further, as an OCA Comey was able to make select redactions (as he apparently did) of classified information and consequently deem the document declassified before he gave it to Richman.
DOJ won't want to try to litigate that issue. https://t.co/CWX6SeFeYP
— Bradley P. Moss (@BradMossEsq) April 20, 2018
There are going to be a ton of political pundits who run with this and have no clue what they are talking about. https://t.co/Kq9ebINqPv
— Bradley P. Moss (@BradMossEsq) April 20, 2018
The real errors and sins of the New York Times is that its reporters either do not have the most basic understanding of what they were reporting on or proceeded as if they didn’t. That they were completely oblivious to being tools in someone else’s political strategy for the 2016 election. And as a result they framed, as the newspaper of record, how Secretary Clinton would be perceived going forward from July 2015 on. The Times reporters and editors errors weren’t their’s alone. Many other reporters and editors and commenters and pundits and anchors followed their lead and used their framing and also were oblivious of being weaponized by a third party with its own agenda. Finally, given recent reporting dealing with classification review, none of these reporters or editors or commenters or pundits or anchors has learned a damned thing in the past three years!
* From a political standpoint this is a somewhat interesting question, but one that is outside the scope of this post.
From a functional standpoint of trying to be able to get work done on a US government unclassified server it is also an interesting question, but for functional, not political reasons. US government computer systems, especially on the unclassified side, have limited bandwidth, and are notoriously kludgey. Over the past decade I don’t know of anyone who hasn’t, at one time or another, had to resort to using personal email addresses because their official work ones went down. I had a six week case in late summer 2014 where my unclassified email address was actually deactivated by accident. It took 48 hours to find out what had happened. Since I was on temporary duty I 1) had to be reachable, so everyone got a blast to use my personal account – even if it was just to tell me to check the “other” email (other meaning classified) and 2) my government issued blackberry was now pointless. When I got back to Carlisle Barracks the tech folks were very helpful – given that it took someone somewhere else in the IT chain six weeks to rebuild everything that had deactivated my and several other people’s work email addresses. This includes the almost two weeks or so it took for the folks at Carlisle Barracks to fix things.
As for the classified side: at one point the classified PIV token (SIPR CAC) they started using in late 2012/early 2013 I was issued died. This was not uncommon – they are incredibly unstable. It took almost two months to get a new one because they couldn’t just be issued on site. And lets not forget the time when I was on temporary assigned control at Ft. Hood as the Cultural Advisor to III Corps and because the Eastern and Western backbones wouldn’t talk to each other I had to spend 5 hours with the good folks at the G6 (Comm’s Shop) and then get a new Common Access Card (CAC) in order to be able to access my unclassified work email. I really don’t understand what they did to make my classified access work, but while it was kludgey and a pain to log in, it worked.
And I’ve got a lot more true stories where these came from…