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A Quick Follow On Regarding How The New York Times Inaccurately Framed The Coverage Of Secretary Clinton

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)

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Data Classification and Data Spillage or Please Stop Asking Me Classification Questions at 2 AM EDT

A lot of folks here at Balloon Juice, just as a lot of folks everywhere, seem to have a lot of interest in the unauthorized release of classified information and briefings these days. This seems to be due to the current presidential election cycle. Since there are so many questions, I figured it was easier just to point everyone in the right directions.

Lets start with what, exactly, is classified information as defined by the US government. Executive Order 13526/Classified National Security Information defines the terms:

Sec. 1.4.  Classification Categories.  Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a)  military plans, weapons systems, or operations;

(b)  foreign government information;

(c)  intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d)  foreign relations or foreign activities of the United States, including confidential sources;

(e)  scientific, technological, or economic matters relating to the national security;

(f)  United States Government programs for safeguarding nuclear materials or facilities;

(g)  vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

(h)  the development, production, or use of weapons of mass destruction.

And the actual classification levels are:

Sec. 1.2.  Classification Levels.  (a)  Information may be classified at one of the following three levels:

(1)  “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.

(2)  “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.

(3)  “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.

(b)  Except as otherwise provided by statute, no other terms shall be used to identify United States classified information.

(c)  If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.

The people authorized to classify are:

Sec. 1.3.  Classification Authority.  (a)  The authority to classify information originally may be exercised only by:

(1)  the President and the Vice President;

(2)  agency heads and officials designated by the President; and

(3)  United States Government officials delegated this authority pursuant to paragraph (c) of this section.

(b)  Officials authorized to classify information at a specified level are also authorized to classify information at a lower level.

(c)  Delegation of original classification authority.

(1)  Delegations of original classification authority shall be limited to the minimum required to administer this order.  Agency heads are responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority.

(2)  “Top Secret” original classification authority may be delegated only by the President, the Vice President, or an agency head or official designated pursuant to paragraph (a)(2) of this section.

(3)  “Secret” or “Confidential” original classification authority may be delegated only by the President, the Vice President, an agency head or official designated pursuant to paragraph (a)(2) of this section, or the senior agency official designated  under section 5.4(d) of this order, provided that official has been delegated “Top Secret” original classification authority by the agency head.

(4)  Each delegation of original classification authority shall be in writing and the authority shall not be redelegated except as provided in this order.  Each delegation shall identify the official by name or position.

(5)  Delegations of original classification authority shall be reported or made available by name or position to the Director of the Information Security Oversight Office.

(d)  All original classification authorities must receive training in proper classification (including the avoidance of over-classification) and declassification as provided in this order and its implementing directives at least once a calendar year.  Such training must include instruction on the proper safeguarding of classified information and on the sanctions in section 5.5 of this order that may be brought against an individual who fails to classify information properly or protect classified information from unauthorized disclosure.  Original classification authorities who do not receive such mandatory training at least once within a calendar year shall have their classification authority suspended by the agency head or the senior agency official designated under section 5.4(d) of this order until such training has taken place.  A waiver may be granted by the agency head, the deputy agency head, or the senior agency official if an individual is unable to receive such training due to unavoidable circumstances.  Whenever a waiver is granted, the individual shall receive such training as soon as practicable.

(e)  Exceptional cases.  When an employee, government contractor, licensee, certificate holder, or grantee of an agency who does not have original classification authority originates information believed by that person to require classification, the information shall be protected in a manner consistent with this order and its implementing directives.  The information shall be transmitted promptly as provided under this order or its implementing directives to the agency that has appropriate subject matter interest and classification authority with respect to this information.  That agency shall decide within 30 days whether to classify this information.

So that’s the basic terminology, but if you really want to understand this, then you need to click on across and read the whole policy statement.

What a lot of the questions I’ve been getting are actually about is what happens if something is reported on that’s classified and then someone with a clearance remarks on it. Given news reporting on US governmental activities, it is often possible to find classified information in newspapers, online news and commentary sites, and on TV and radio news broadcasts. The DOD and other government agencies put out warnings to their employees when this happens. For instance:

“Classified information, whether or not already posted on public websites, disclosed to the media, or otherwise in the public domain remains classified and must be treated as such until it is declassified by an appropriate U.S. government authority,” wrote Timothy A. Davis, Director of Security in the Office of the Under Secretary of Defense (Intelligence), in a June 7 memorandum.

“DoD employees and contractors shall not, while accessing the web on unclassified government systems, access or download documents that are known or suspected to contain classified information.”

“DoD employees or contractors who seek out classified information in the public domain, acknowledge its accuracy or existence, or proliferate the information in any way will be subject to sanctions,” the memorandum said.

Finally, we have spillage of classified information. Spillage, in this context, is defined as:

Classified (or sensitive) data spills occur when classified data is introduced onto an unclassified information system, to an information system with a lower level of classification, or to a system not accredited to process data of that restrictive category, according to DoD Manual 5200.01-v3, Protection of Classified Information. Although it is possible that no actual unauthorized disclosure occurred, classified data spills are considered and handled as a possible compromise of classified information involving information systems, networks and computer equipment until the inquiry determines whether an unauthorized disclosure did or did not occur.

If you want a more comprehensive understanding of classification and how the US government deals with it, here’s some unclassified links for you all.

Department of Defense Manual 5200.01/Marking of Classified Material

Department of State Classification Guide/DSCG 11-01 (Declassified After Review per FOIA Request)

US Government Publication Office Publishing Guidelines Pertaining to Classified Information

The EPA’s Information Procedure for Dealing with Spillage of Classified Information onto Unclassified Systems

The FAA’s Procedure for Dealing with Spillage of Classified Information onto Unclassified Systems

The Federation of American Scientists Project on Government Secrecy

The Center for Development of Security Excellence’s Primer on Original Classification Authority

Update at 2:35 PM EDT

Here’s the link to the Office of the Director of National Intelligence’s page containing the Intelligence Community’s Directives. You’ll find anything and everything you can think you might be interested in regarding this stuff there.