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.
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.