Clarification on Classification: It Was All About the Cs

Some of the recovered emails that the FBI investigators combed through had what could have been noticed or missed depending upon how far down a chain of emails you scrolled or how quickly your eye scanned the text. (c) To discern the marking you had first to know what it indicated and second had to read carefully and thoroughly through the email chain since the marking might have appeared in an early version of an email and might have been removed in later texts, or the marking might not have been removed when it should have been. Did you see it?  In testimony to the Oversight Committee, FBI Director James Comey stated that paragraphs or sentences bearing this mark were not offset with indentation.

(c) Now you see it.

At yesterday's State Department press briefing, these little (c)s were the subject of a great deal of interest.  John Kirby is the State Department spokesperson.

QUESTION: Firstly, the marking of a parentheses “C” – where does that come from? What law designates a parentheses “C” as a valid classification marking?
MR KIRBY: I don’t know.
QUESTION: Can you check on that, so that we know?
MR KIRBY: I don’t know that it is governed by law, but I’ll be happy to check and see.
QUESTION: Okay. Well, if it isn’t, I would be interested to know how it’s indeed classified.
MR KIRBY: Not everything in terms of procedure is governed by legislation, Brad. But I’ll check and see where – if that’s covered in any way.
QUESTION: Well, I looked at Executive Order 13526, which seems to be – well, which proclaims to be the rule on classified national security information. And it doesn’t talk about anything about parentheses “C”s or anything like that. It talks about three valid terms – Secret, Top Secret, and Confidential. And it explicitly says any other marking is invalid. So if you could figure that out, that’d be great.
And then secondly --
MR KIRBY: I would – let me just – I will do what I can, Brad.
QUESTION: Yeah, okay.
MR KIRBY: But I mean, you’re – the issue of classification and markings is not a State Department responsibility in the government. I mean, we obviously have our responsibilities to obey the executive order, but I don’t want to set us up as the authority to speak to every issue of marking that the U.S. Government follows.
QUESTION: Well, I don’t know that the U.S. Government follows this writ large. It seems that you follow it. But I’d like to know why, or based on what.
MR KIRBY: I’ll check.
QUESTION: Secondly, on the category of classification, I think yesterday you said it was to protect the idea of a call or to not get ahead of the Secretary’s decision-making process. Again, there are strict rules, as I see them, for classification, what can be classified – WMDs and critical infrastructure, covert intelligence. Can you tell me what protecting the Secretary’s decision-making process falls under?

At this point, the email in question marked with a (c) involved the scheduling of a call sheet.  There was a proposed call to perhaps be scheduled or perhaps not to a head of state offering condolences.

MR KIRBY: I don’t have the advantage of having that document in front of me, Brad. And I’m not an expert on it; I’m not going to pretend to be or purport to be. I’m happy to further research your question.
QUESTION: Okay.
MR KIRBY: Happy to do that. But as I said yesterday, this was a – this is a fairly common practice and it’s designed to try to treat with care and prudence and not to close down decision space of the Secretary in advance of a recommended call – in case, for instance, that call doesn’t get made or it gets made under a different set of circumstances. So the degree to which it’s governed by regulation or order, I don’t know. And again, I’m happy to look. But I --
QUESTION: I have one more you might need to look into.
MR KIRBY: But – but I – but I think we need to take 10 steps back, take a deep breath, and look at this in perspective. This is a practice which many people use here as a way to try to protect what we believe is sensitive information and to try to preserve decision space for the Secretary of State in advance of, in this case, making a call. So look, I mean, we could have the debate over and over again --
QUESTION: Let me just have my last question. It also under classification rules say you have to put a specific date or event for declassification that must be stated. It doesn’t say when the Secretary decides and there’s a cognitive process inside the Secretary’s brain to make a call that that ends the classification. So can you tell me where this practice on kind of ad hoc expiration comes from as well?
MR KIRBY: I’ll ask the question, Brad.
QUESTION: And then --
MR KIRBY: I have to tell you, though – I mean, I’ll ask these questions; they’re fair questions.
QUESTION: Yeah.
MR KIRBY: But again, we’re talking about people trying to do the best they can to protect some sensitive information and protect decision space for the Secretary, and we’re – and of the entire universe of documents, we’re talking about an extraordinarily small amount. So I don’t – I am – again, I’m not pushing back and I will be happy – first of all, I’m happy to admit what I don’t know, happy to go try to find out for you, but I do think it’s important to keep this whole matter in some sense of perspective here in terms of the universe of the issue.
QUESTION: I do. But here’s why I think it’s relevant, and I’ll pose this as a statement/question.
MR KIRBY: There’s a surprise.
QUESTION: We had a discussion earlier this week where you forcibly rejected the notion that there’s a lax culture when it comes to classification in this agency, and now you’re saying that there are practices here that don’t – maybe don’t ascribe to any guidelines or rules, but just are done as a matter of practice for protecting decision-making processes or what, when there are strict guidelines on how you are supposed to classify things. And I don’t quite see what’s wrong with the law, as it is for the entire government --
MR KIRBY: Well, let’s not presume --
QUESTION: -- that we need this separate process.
MR KIRBY: First of all – so first of all, let me go --
QUESTION: And why --
MR KIRBY: Let me go research it --
QUESTION: Yeah, yeah.
MR KIRBY: -- and we’ll find out if there’s some sort of violation here. But when I refer to questions about a lax culture, it was a broad-brush statement that was made about a lax security culture at the entire State Department – which, as I said the other day, we don’t subscribe to. We don’t share that assessment. Now, you could look at it your way and say, “Well, if we’re not following the rules, then that proves the point.” I would look at it the other way, is that you have people that are trying to take extraordinary care in a pre-decisional environment for the Secretary of State and to preserve what could be sensitive information in advance of a call that might not be taking place. That to me doesn’t connote a culture of negligence and lackadaisical disregard for sensitive information. It actually, to me, says the opposite.
So let’s just agree that I’m going to go ahead and try to see what I can do to put some fidelity on these questions, but I am – still stand by my comment the other day that a broad-brush assessment that the State Department is lax, doesn’t have a healthy security conscience here, is simply without base.

So this (c) marking is a common practice at the department, elsewhere referred to as a "standard practice" and may simply indicate that at the moment there is a suggestion to make this call but we are not making it public unless/until the secretary decides to make or not make the call.  In other words, it may be temporary.

QUESTION: Okay, great. Second thing: Going back to the discussion that you had yesterday and just now with regard to the practice of putting a “C” on such a memo prior to a decision that has been made for the secretary to place such a call, the – one of the emails talks about having a call at 7:30 a.m. or at some other point during the course of the day. Is it your view that the decision to make the call – this is the one about the condolences to the president of Malawi. Is it your view that the decision to make the call had indeed been made when those emails were sent and you were just talking about what time it would be?
MR KIRBY: I have no idea. There’s no way for me to know that.
QUESTION: Well, if you don’t know whether the decision to make the call had been made at that point, then how do you know the information wasn’t – wasn’t not just marked classified but actually classified when the secretary sent it – when the secretary’s aide sent it?
MR KIRBY: I don’t know – I don’t know how to answer your question. What I said yesterday – I’m not going to get into litigating each and every one of these emails. What I said yesterday is oftentimes it is practice to mark them Confidential in advance of a decision to make a call, and then once the decision is made they’re made Sensitive but Unclassified and they’re provided to the Secretary in a way that he or she can then use as they’re on the phone, and that – that by all appearances, it appears to us that the remnant “C”, if you will, on this particular email call sheet was human error because it appears to me from the traffic that the secretary had been asking, had been wanting the call sheet, which would, I think, indicate that the secretary was at that time intending on making the call.
But I can’t say that for sure because I wasn’t here and I wasn’t involved in the email traffic itself. So I’m being careful about how I’m wording this because we’re making assumptions here that I simply don’t know for a fact are true. But that’s why we believe in this case it was – it was simply human error in terms of the transmission of that particular subparagraph labeled “C”.
QUESTION: Okay. So it’s your assumption that the secretary had at that point made the decision, hence the information would no longer have been classified, hence the marking was a rogue or --
MR KIRBY: A human error.
QUESTION: Yeah.
MR KIRBY: A mistake. That’s our assumption, Arshad. But again, not having been here and party to that entire exchange, I don’t know that for – to be a fact 100 percent.
QUESTION: Okay.
QUESTION: I have one more on this if people are – want to go on. I just wanted to ask if, in the event the secretary decides not to make the call, when does the classification expire?
MR KIRBY: I don’t know, Brad.
QUESTION: Well, isn’t that useful information given that there are strict rules as well on classification cannot be indefinite in this country?
MR KIRBY: We’re – I’m not going to get into a circular argument with you here on this. I told you I will look at the regulation.
QUESTION: Yeah, okay.
MR KIRBY: I will do the best I can to answer your questions, Brad. But all I’m trying to do is put some perspective on this.
QUESTION: It was – it’s a very confusing policy. That’s why there are so many questions.
MR KIRBY: I didn’t – it’s a – I didn’t call it a policy. I said oftentimes it is standard practice --
QUESTION: Practice. It’s a very confusing practice.
MR KIRBY: -- for it to be deemed Confidential in advance of the secretary making a decision – hang on, Goyal – making a decision, and then it is rendered SBU so that the secretary can use the document in an unclassified setting to make the call. And again, I am not an expert enough to debate the expiration of the classified setting, the markings on it. I will do the best I can to answer your questions. I think, again, taking a couple of steps back, look at this in broad terms – it is staff members working hard to try to protect decision space for the secretary in case that call doesn’t get made.
QUESTION: Right.
MR KIRBY: And maybe we don’t want that out there that we decided no, we’re not going to call that foreign leader, we don’t think it’s okay to send him a condolence message. And that’s not information necessarily that we want to have in the unclass environment. And so you have people that are doing the best they can to try to protect decision space for the secretary and to protect – and to protect what we still would render as sensitive information. Again, that doesn’t connote to me a culture of laxity and negligence and --
QUESTION: Oh, I mean, I didn’t ask that on this question. But if you classify something and it’s to protect the possibility that maybe the secretary doesn’t make the call, that information still has to become public at some point. Whether you don’t want it to or don’t think it should be is regardless. It’s public information after a point of declassification.
MR KIRBY: No it doesn’t.
QUESTION: That’s how it works in this country.
MR KIRBY: It doesn’t automatically become public; it becomes declassified at a certain point.
QUESTION: It becomes declassified.
MR KIRBY: That doesn’t mean it has to be put in the public domain.
QUESTION: Well, it becomes declassified at a certain point, isn’t that right?
MR KIRBY: Eventually Classified information will have an expiration on it.
QUESTION: But in this case there was no expiration, so it just kind of was undefined.
MR KIRBY: Well, you and I don’t know that, do we? Because what we have is an email that was put on the unclass side. It was taken to – put on the unclass side, and one marking on one paragraph was labeled “C,” which we believe was a human error. But you and I haven’t seen what was the actual Confidential call sheet that was prepared before it was transferred over to the unclass side, so I don’t know how you and I could know what markings were on that call sheet or what dates were put on there, if any.
QUESTION: I don’t know --
MR KIRBY: Right.
QUESTION: -- but I also didn’t know that this sentence comes from a Classified – a fully Classified document. I don’t think anyone had told me that before.
MR KIRBY: I said yesterday that call sheets are generally --
QUESTION: So this sentence --
MR KIRBY: -- considered Confidential, and that doesn’t mean that --
QUESTION: This sentence was lifted from a Classified document and put into an Unclassified document?
MR KIRBY: No, Brad. I mean, the call sheets are generally held at a Confidential level in advance of the secretary making a decision to make a call. Not every paragraph of that have to be Confidential. Like, you could still have a Confidential document with four paragraphs, right, and maybe three of those paragraphs are Confidential but one’s Unclassified. So, again, I haven’t seen the actual call sheet that was drafted, so I can’t tell you for sure that every paragraph in there was labeled Confidential with a “C” or Unclassified with a “U.” All I do know is that the email that was processed through FOIA and released contained one paragraph – I think it was actually a sentence; it was like the purpose of the call, I think – that was – that the “C” marking was retained when it was transmitted over an unclass system to former Secretary Clinton. Again, we believe that that was simply human error as the call sheet was moved over to a format that the secretary could use. That “C” should’ve been removed; it wasn’t, because – I mean, the line was really – it was the purpose of the call, I believe is what it was, and so you can see if that’s the document being moved over, that’s the paragraph being moved over, it should have been – the “C” marking should have been taken off.

The bottom line is that, in picking needles out of the haystack, the FBI investigators, reading tediously carefully, found a few of these (c)s  - perhaps remnant (c)s - in texts of strings of emails. None of the emails had headings using the three valid terms – Secret, Top Secret, and Confidential according to Executive Order 13526. The FBI found three emails with this mark.  The State Department as of yesterday only knew of two of the three. (To see more of yesterday's press briefing, click here.)

Hillary's campaign released this statement on the subject.

FBI’s Comey: Emails Reported as “Marked Classified” Were Improperly Marked and Could Be Reasonably Judged as Not Classified

In a key development at today's House Oversight and Government Reform Committee hearing, FBI Director James Comey clarified an apparent inconsistency between his remarks earlier this week and Secretary Hillary Clinton's long-running public statements.

Clinton has long stated that none of the emails she sent or received were marked classified at the time. Comey, however, said Monday that there was a "very small number" of emails that bore markings.

Moments ago, Comey reconciled this apparent contradiction. He acknowledged for the first time that there were only three such emails, and that in each case the emails contained only "partial" markings -- meaning, he acknowledged, that they were improperly marked and that as a result, the materials could have been reasonably judged as not classified.

Comey's statements add to the findings announced by the State Department yesterday. At a press briefing, a State Department spokesman said the markings on these emails were the result of "human error" and did not belong in these emails, as the underlying contents were not classified.

Below is the full exchange just now between Director Comey and Rep. Matt Cartwright:

KEY EXCHANGE WITH DIRECTOR COMEY AND REP. CARTWRIGHT

MATT CARTWRIGHT: You were asked about markings on a few documents, I have the manual here, marking national classified security information. And I don’t think you were given a full chance to talk about those three documents with the little c’s on them. Were they properly documented? Were they properly marked according to the manual?
JAMES COMEY: No.
MATT CARTWRIGHT: According to the manual, and I ask unanimous consent to enter this into the record Mr. Chairman

CHAIRMAN: Without objection so ordered.

MATT CARTWRIGHT: According to the manual, if you're going to classify something, there has to be a header on the document? Right?

JAMES COMEY: Correct.

MATT CARTWRIGHT: Was there a header on the three documents that we've discussed today that had the little c in the text someplace?

JAMES 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.

MATT CARTWRIGHT: So if Secretary Clinton really were an expert about 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?

 JAMES COMEY: That would be a reasonable inference.

Last night, several readers contacted me concerned about the news that the State Department has reopened its investigation into the matter of the emails and the server.  This is an internal inquiry that was underway and was suspended while the FBI investigation was ongoing.  It is set to continue, as it was expected to, now that the FBI investigation is complete and Justice Department has issued its decision.