The government often decides years after the fact, in the abundance of caution (or paranoia) to classify information that hadn't been classified. That is what is going on here, in response to someone's Freedom of Information Act request.

The "well, they weren't classified then...but we made them classified later" crap is infuriating, especially when the talking idiots on MSM fail to say that.

Bernie supporter here but this crap is crap.

wanted to know what Bernie thought about "Hillary's hair". Geez. Sanders of course set her straight, but I doubt that will stop the media from trying to contrieve the "gotcha" scenario, instead of trying to present the facts, whatever they are

When emails are sent or received there is not someone sitting at the computer marking them classified. That does not mean that information that was classified at the time is not in the emails. If Clinton composes an email there is no one standing around to review it an determine whether it has classified materials in it. Having this on a personal server violated a Obama administration rule and possibly several federal laws. This is the same stuff that did in Petraeus and Sandy Berger.

The person who sent the classified email is supposed to mark it as classified.

There's even a standard for indicating if the subject of the email is classified, the body of the email is classified, or if the attachments are classified.

When they fail to properly mark the email, that doesn't mean the email is unclassified. It means they failed to mark it. Pnwmom really, really wants failure to mark to mean the email is unclassified.

Innocent till proven guilty should always apply, even with a Clinton.

And as I've explained to you many times, she hasn't broken the federal law against espionage, since that requires selling information or handing the information to a foreign country.

What she has broken is the chain of executive orders that define how our country's classification system works. Because those are not laws, breaking those can not result in being "guilty".

If Clinton was a run-of-the-mill government employee, this incident would result in her being fired and barred from ever receiving a security clearance again.

First, there is no evidence at this point that anything on her server was classified. That is why the emails are being reviewed. And there were no Obama administration rules or laws that prohibited Hillary from using her personal server. The law was changed after she left.

Also, none of the emails discussed so far were said to have been written by Hillary. All of them were forwarded to her. At least one was a forwarded email discussion about a newspaper article.

Petraeus, by contrast, knowingly sent classified information to his biographer, and he was convicted of a misdemeanor.

This is not an after-the-fact classification. This is an after-the-fact marking.

The difference has been explained to you many times. Your response devolves to "NEWS ARTICLE!!!!". Then the next post where the subject comes up, you revert to after-the-fact classification.

It helped that you explained it mutliple times, but now I know.

Thanks

we went from 'there's no there there' to 'a handful' of emails that should have stayed on a classified server, to hundreds. No doubt it'll be thousands before it all ends.

Redactions in some of the released emails indicate there was some classified information. Otherwise, they would not have been redacted.

Unless you want to claim that the people doing the redactions are breaking FOIA.

OR that it should have been classified THEN.

Just that at this point in time, in 2015, with 20/20 hindsight, it was decided to apply now.

And people who are actually familiar with classified information keep telling you it doesn't work that way.

Yet you keep going back to it.

No matter what? Maybe.

Unless you already have made up your mind.

Retroactively Classified Documents, the First Amendment, and the Power to Make Secrets out of the Public Record

http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9475&context=penn_law_review

by Jonathan Abel, Fellow, Constitutional Law Center, Stanford University

INTRODUCTION

Now you see it. Now you don’t.

This is not a magician’s incantation. It is a description of retroactive classification, a little-known provision of U.S. national security law that allows the government to declassify a document, release it to the public, and then declare it classified later on. Retroactive classification means the government could hand you a document today and prosecute you tomorrow for not giving it back. Retroactive classification can even reach documents that are available in public libraries, on the Internet, or elsewhere in the public domain.
The executive branch has used retroactive classification to startling effect. The Department of Justice, for example, declassified and released a report on National Security Agency (NSA) wiretapping only to declare, years later, that the report was once again classified. The journalist who had received the report was threatened with prosecution if he did not return it. Retroactive classification has also targeted government documents revealing corruption in Iraq, violence in Afghanistan, and mismanagement of the national missile defense program. In each of these cases, the government released a document in an unclassified form through official channels—not through a leak—and then turned around to classify it.

This practice would be troubling enough if it actually removed the document from the public domain. But in the Internet Age, once a document is released to the public, it is often impossible for the government to retrieve it. While retroactive classification does not remove the document from the public domain, where our enemies can access it, retroactive classification does remove the document from the public discourse, prohibiting members of Congress, government auditors, and law-abiding members of the public from openly discussing it.

In the ongoing debate about the balance between secrecy and transparency in government affairs, retroactive classification tests the limits of the government’s ability to control information in the public domain. The questions raised by retroactive classification go far beyond those raised by the WikiLeaks and Edward Snowden disclosures. In those cases, the information remained classified even though it was widely available in the public domain. A similar situation occurs with retroactive classification when information in the public domain becomes classified. The difference is that in retroactive classification, the government initially released this information in a non-classified form and only later decided to classify it. This difference makes retroactive classification much more complicated from a legal standpoint because it involves the government’s going back on its initial classification decision. Retroactive classification thus forces us to ask what limits, if any, exist on the government’s authority to control information. Can the government reach into the public domain to make a secret out of something it has already disclosed? Are we obligated to go along with retroactive classification decisions? What are the implications beyond national security law? This Article takes up these pressing questions.

SNIP

Some information is classified after-the-fact.

And you haven't given me a single link that proves otherwise.

classified at the time? You need those again?

You keep conflating marking something as classified with it actually being classified. Because it fits the story you want to tell better.

for the country we have become.

Retroactively Classified Documents, the First Amendment, and the Power to Make Secrets out of the Public Record

http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9475&context=penn_law_review

by Jonathan Abel, Fellow, Constitutional Law Center, Stanford University

INTRODUCTION
Now you see it. Now you don’t.

This is not a magician’s incantation. It is a description of retroactive classification, a little-known provision of U.S. national security law that allows the government to declassify a document, release it to the public, and then declare it classified later on. Retroactive classification means the government could hand you a document today and prosecute you tomorrow for not giving it back. Retroactive classification can even reach documents that are available in public libraries, on the Internet, or elsewhere in the public domain.
The executive branch has used retroactive classification to startling effect. The Department of Justice, for example, declassified and released a report on National Security Agency (NSA) wiretapping only to declare, years later, that the report was once again classified. The journalist who had received the report was threatened with prosecution if he did not return it. Retroactive classification has also targeted government documents revealing corruption in Iraq, violence in Afghanistan, and mismanagement of the national missile defense program. In each of these cases, the government released a document in an unclassified form through official channels—not through a leak—and then turned around to classify it.

This practice would be troubling enough if it actually removed the document from the public domain. But in the Internet Age, once a document is released to the public, it is often impossible for the government to retrieve it. While retroactive classification does not remove the document from the public domain, where our enemies can access it, retroactive classification does remove the document from the public discourse, prohibiting members of Congress, government auditors, and law-abiding members of the public from openly discussing it.

In the ongoing debate about the balance between secrecy and transparency in government affairs, retroactive classification tests the limits of the government’s ability to control information in the public domain. The questions raised by retroactive classification go far beyond those raised by the WikiLeaks and Edward Snowden disclosures. In those cases, the information remained classified even though it was widely available in the public domain. A similar situation occurs with retroactive classification when information in the public domain becomes classified. The difference is that in retroactive classification, the government initially released this information in a non-classified form and only later decided to classify it. This difference makes retroactive classification much more complicated from a legal standpoint because it involves the government’s going back on its initial classification decision. Retroactive classification thus forces us to ask what limits, if any, exist on the government’s authority to control information. Can the government reach into the public domain to make a secret out of something it has already disclosed? Are we obligated to go along with retroactive classification decisions? What are the implications beyond national security law? This Article takes up these pressing questions.

SNIP

Again, the person making the "retroactive classification" claim is you. The people saying these emails contain classified are saying the information was classified at the time the emails were sent.

You are doing this because you conflate marking after-the-fact with classifying after-the-fact. They are two different things.

no matter how much of a partisan they were.

No publicly named source is saying the emails contained classified information when they were sent. You are content with anonymous sources, for reasons I can only imagine.

Marking a document classified is not what makes the document classified. The information within the document does.

The information was classified. The emails were not marked. Applying the correct markings is not retroactive classification.

Except for the inspectors general for the CIA and DNI. And Chuck Grassley, but he's a Republican.

Meanwhile, we have zero sources claiming the information is being retroactively classified. Instead, Clinton and State are insisting the information still isn't classified. They are not claiming it was retroactively classified. You are.

How about providing a link to Clinton or State claiming that these are retroactive classifications?

State is keeping the investigation confidential, which it should be.

And thanks for asking the question. This is a good article that I might have missed otherwise.

Oh, and in case you've never heard of Media Matters, it's an organization that debunks conservative lies in the media. The ones that you've gotten sucked into.

ABOUT OUR RESEARCH

Our research section features in-depth media analysis, original reports illustrating skewed or inadequate coverage of important issues, thorough debunking of conservative falsehoods that find their way into coverage and other special projects from Media Matters' research department.

http://mediamatters.org/research/2015/08/12/myths-and-facts-on-hillary-clintons-email-and-r/204913

Media are exploiting news that two emails Democratic presidential candidate Hillary Clinton turned over to the State Department from her time as secretary of state may be retroactively classified as "top secret" to push myths about Clinton's handling of government information and scandalize her email use. Here are the facts.

FACT: None Of The Emails Sent To Clinton Were Labeled As "Classified" Or "Top Secret"

FACT: Emails Originated In State Dept. System, And Questions About Retroactive Classification Would Have Occurred Regardless Of Clinton's Server Use

FACT: Experts Have Debunked Any Comparison Between Clinton's Email Use And David Petraeus' Crimes

FACT: IG Referral To Justice Department Was Not Criminal, And FBI Isn't Targeting Clinton Herself

Intelligence Community IG Says Two Emails From Clinton's Server Should Be Marked "Top Secret"

Intelligence Community Inspector General Says Two Emails From Clinton's Server Contain "Top Secret" Information. The inspector general for the Intelligence Community (ICIG), I. Charles McCullough, reportedly informed leaders of key congressional oversight committees that two classified emails previously discovered on Clinton's server contain top secret information. As McClatchy reported:

The inspector general for the Intelligence Community notified senior members of Congress that two of four classified emails discovered on the server Clinton maintained at her New York home contained material deemed to be in one of the highest security classifications - more sensitive than previously known.

The notice came as the State Department inspector general's office acknowledged that it is reviewing the use of "personal communications hardware and software" by Clinton's former top aides after requests from Congress. [McClatchy DC, 8/11/15]

State Department: It Remains Unclear Whether Material In Two Emails Should Be Retroactively Classified. NBC noted that the State Department is still working with the intelligence community to determine whether the information in the two emails should in fact be labeled as classified:

SNIP

Specifically:

This is State saying they don't think the emails are classified at all. In fact, they go into more detail later in the article.

Somehow, you (and Media Matters) skipped over that. Golly, so odd from such a trusted name in media analysis.

Also:

Media Matters is conflating marking the documents as classified with the documents becoming classified.

Media Matters does this over and over again in this story - they treat labeling the documents as classified as the act of classifying the information. Again, they are two separate steps.

Non-Clinton example:
You start working on the super-secret-airplane project. You are given a classification guide that says "the top speed of the super-secret-airplane is classified TS/SCI".

You receive an email saying "The super-secret-airplane's top speed is 3,000 mph." The email has no classification markings.

The email still contains classified information, even though it is not marked. At this point, you are required to report the security breach. If you fail to do so, and you are a class 4 junior peon (or god forbid a contractor), then you lose your clearance and get fired. The government will also start an investigation into you to see what other security breaches you failed to report.

Applying "TOP SECRET/SCI" to the top of that email does not make the information classified. It already was classified. It was not properly marked. Adding the markings is not the same thing as making the information classified.

are right.

Sure you are.

You, and Media Matters, blew right past what the State department actually said.

MM skipped over it on the way to their retroactive classification story.

Here, let me bold the part where MM blew it.

State is claiming the information is not classified at all.
DNI is claiming the information was classified at the time.
You and MM are claiming retroactive classification.

Nowhere in that quote does it say any material has been determined to be classified. Nor does it rule out retroactive classification.

So how does it support anything you're saying?

Golly, you mean State saying "nothing there is classified" is State saying "nothing there is classified"?!

Wow! What a shock!!!


State is saying they think nothing in the emails is classified. So yes, that rules out retroactive classification because they think nothing in the emails is classified.

Take off the partisan blinders and read your own damn sources instead of scanning them for keywords.

to your first post in this thread. Maybe then you wouldn't keep contradicting yourself.

"Redactions in some of the released emails indicate there was some classified information. Otherwise, they would not have been redacted.

Unless you want to claim that the people doing the redactions are breaking FOIA."

Again, redactions don't mean there was classified information at the time of an email's origination. It COULD mean that they're deciding now to reclassify some information, which they can do with retroactive classification.

Not "at the time". Right now, State thinks nothing in the emails is classified. Today. This instant in time. No retroactive bullshit that you made up. State says "it's all unclassified".

Again, read your own damn sources instead of scanning for keywords. State says exactly nothing about retroactive classification.

The DNI says it was classified at the time. They say exactly nothing about retroactive classification.

Claims about retroactive classification were invented out of whole cloth in an attempt to excuse Clinton's failure to report the security breaches. No statements from State, nor DNI support this claim. Including statements in your own source.

Which you apparently still have not read.

Wow.

Specifically, your claim that the emails are being retroactively classified. Because you are still conflating retroactive marking with retroactive classification.

No one who has actually seen the emails (State, DNI) is claiming that retroactive classification is happening. You are.

But Hillary is finished politically. This email scandal is it for her. The classified information is just the beginning. Wait until they dig up the emails between Hillary and Uranium One, United Bank of Switzerland, etc. It will be the end of all her hopes for ever becoming President.

subject for as long as they can.

As so many blindly follow - here in the Land of the Free and Home of the Brave, we will never, ever see the contents of the suspect emails because, after all, they are classified. Supposedly.

We even have to just blindly accept the word of some investigator that they were even classified, let alone contained information that should now be public. We do not know the investigators agenda...

Politics at its worst...

I am a Democratic voter who will support the party's nomination....against ANY Republican candidate...our country deserves better than any one of those clowns to get even close to the WH....

Consider too, that the leading republican candidate has only 25% support from their know-nothing, fox spoon fed headline chasing followers.....but then, I know I am preaching to the choir....

Is if her staff was reading classified traffic on the secure government systems and then relaying it to Hillary without properly marking it, which would be breaking the law whether it was marked or not because it was being sent outside the secure networks.

believing that nothing classified has been included. That's why people with access to classified information are supposed to be trained and are expected to apply the rules, and to comply with the rules.

Has it been confirmed that all of these were emails Mrs. Clinton received and that she had not originated or forwarded any?

It's easy it is to have conversations at various levels all day long, send an email or two and include material that was really based on classified intelligence. That's one of the reasons you keep transmissions on unclassified systems to a minimum and ensure the smartest one on you staff double-checks things before you hit send.

But if you foster an environment where nobody will tell truth to power, you are not just failing to plan - you are planning to fail.

Let's give Mrs. Clinton a presumption of criminal innocence, but if more than an anomalous one or two turn out to have included classified information, she starts to look like the Leona Helmsley of politics where rules are only for "little people".

I find Bernie Sanders refreshingly humble.

A staffer views classified material on the secure government system, all appropriately marked, etc.

They then turn around and compose an email on the regular .gov system and send the information in their own words to Hillary or whoever through the private email server. Of course they wouldn't properly mark it because you wouldn't be designating stuff classified outside the secure systems to begin with, that would break all kinds of rules right off the bat.

I would think if anything criminal as far as mishandling information occurred it would be something like this and fall back on the staffer that composed the emails outside the secure system. I bet some people are sweating this because they know they will get thrown under the bus in a pinch.

Last edited Mon Aug 17, 2015, 09:21 PM - Edit history (1)

The emails on Hillary's server actually were marked "Top Secret TS/SCI" etc. When Hillary's staff printed them out for the Committee, they blocked out these markings with some White-Out or a small piece of blank paper. This forgery would be virtually impossible to detect. This would help to explain why Hillary gave paper copies to the Committee, rather than electronic ones.

Just a theory. But it is a much simpler and more plausible theory than the one floated in the media about someone getting in between the sender and Hillary and scrubbing the documents.

Time will tell. Let's see what, if anything, is left on the thumb drives.

Burning all those hard copies makes no sense to me unless someone is trying to cover up a photoshop job. Hillary may not have known about any of it, but it will be interesting to see what happens with her staffers.

But I can imagine an overeager staffer photoshopping something off an email. I can't figure out the photocopying of 50,000 pages. It's either to hide something or slow the process down and I don't know why they would want to do that. The bottom line is that all of this is self-inflicted and it's a shame. She probably will be the candidate on our side and she could lose it all for us because of this needless brouhaha. I blame her handlers. She's been overhandled from day 1 of the 2008 campaign and I can imagine the conversation about private email vs. State Dept. email when she was appointed. They probably convinced her it was best to have a private server so Republicans would never get their hands on anything she wrote and use it as ammunition in the next presidential campaign. Don't view me as the enemy. I've always said I'll vote for her in the general if she's the candidate. I'm just being pragmatic. You can't stick your head in the sand and pretend none of this is happening, especially after the FBI is brought into the mix.

by making it easier for the House committees to sort through all the emails. If the judge would accept paper, then make them go through the papers.

"lifted" from secret documents. One of the controversial emails was a discussion of a news report about drones -- all the information in it was in public media reports at the time.

So your little theory doesn't fly. If all they did was cover up the word "secret," then the documents would contain identical content to classified documents. And no one has reported that they do.

"Retroactive classification" is a much simpler theory that explains the problem.

That map is a copy of an NSA document that should have been marked TS/SCI--an above top secret classification. If it was sent to her by the NSA, it would undoubtedly have been marked that way by the sender.

The unmarked secret docs that Hillary only "summarized" are also illegal. It's illegal to summarize a classified document without marking it "classified."

The emails Hillary sent containing secret information originating with her must, by law, be marked "classified" by the originator.

No matter how you try to spin it, she is in big legal trouble, and this will destroy her campaign.

http://www.washingtonpost.com/politics/top-secret-e-mails-were-sent-on-clintons-private-account-official-says/2015/08/11/f3117f08-403d-11e5-9561-4b3dc93e3b9a_story.html



http://mediamatters.org/research/2015/08/14/more-myths-and-facts-on-top-secret-materials-in/204946

http://www.dailymail.co.uk/news/article-3196774/Hillary-s-emails-contained-secret-CIA-intelligence-satellite-info-panic-hits-Democrats-campaign-issues-4-000-word-explanation-s-innocent.html#ixzz3j8lYRHHQ

It didn't say it was classified at the time it was received.

You can see that if you read the whole letter.

There is another email the State Department still has to rule on. That's also mentioned in the letter. From other media reports, those emails consist of conversations other people were having about stories in the news media about drones. They were discussing these newspaper articles, and their discussion got forwarded to Hillary.

If the information in these articles now becomes classified, it will be yet another case of retroactive classification.

Here is the McCullough letter to Grassley's committee, in case you haven't seen it. You've been accepting the Grassley spin on the letter. I've been taking the Obama administration at its word.

http://www.grassley.senate.gov/sites/default/files/judiciary/upload/Classified%20docs,%2008-11-15,%20ICIG%20CN%20-%20Update%20on%20Classified%20Materials%20on%20Personal%20thumb%20drive.%20Clinton%20server.pdf

As used in the SF 312, the SF 189, and the SF 189-A, "classified information" is marked or unmarked classified information, including oral communications and unclassified information that meets the standards for classification and is in the process of a classification determination, as provided in Section 1.1(c) and 1.2(e) of Executive Order 12356 or any other or Executive order that requires interim protection for certain information while a classification determination is pending. "Classified information" does not include unclassified information that may be subject to possible classification at some future date, but is not currently in the process of a classification determination.

http://www.archives.gov/isoo/training/standard-form-312.html

Basically the standard for being "classified" is this:

18 US Code Part I Chapter 37 sec. 793(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it...shall be fined under this title or imprisoned not more than ten years, or both.

https://www.law.cornell.edu/uscode/text/18/793

Why are you so intent on believing the worst, despite seeing how the Rethugs have rolled out the story and the NYTImes was forced to roll it back?

isn't trivial and could include almost anybody in the State Department, including Mrs. Clinton. It's plausible to believe she could have come out of an NSC Principal's Committee meeting and fired off a few emails while being chauffeured back to foggy bottom. It's not a stretch to envision her sending first without considering the source of the information. Did she expect anyone to find out about her private email system or make it public?

And while she had the authority to declassify information originating from the State Department, such determinations must be documented. She also would not have the authority to declassify information originated by any other department or agency. Mishandling that, even through simple negligence, would be very serious.

So far there hasn't been one trustworthy source saying she passed on or received classified information.

So far, all of the reports I've seen were about emails sent to her.

Good thing Bush isn't still in office. It took 6 years to get a couple of USDA files using FOIA requests.

...the aim is to use her name in conjunction with "scandal" "criminal" "illegal" "classified" etc. etc... Whitewater! Benghazi!

Hillary gave a press conference to dispel fears her email problem is festering into a malignancy in her campaign. Her ruffled right collar at the press conference seemed to give a different impression.

I think I will go donate to the Hillary campaign in your honor right now.

I'm afraid the Clinton super-pacs minimize any help from your donation except supporting the corporate power status quo. Remember the 1999 WTO and how Bill solidified their power over people, capital, and the media. Why are PCs made in China? The technology (and jobs) were given away. We need real change, not ruling families switching figureheads but not the thinking between their ears.

It is nice to see your support for diversity which Bernie (and I) recognize as critical morally, and for the enrichment to life difference adds. It may be that the color green is more divisive than any skin color, gender, ethnicity or age etc. Money is power, people will do horrendous things to get or keep it. It has become a universal force spawning colonization, globalization of labor, and extraction of resources. Corporate raiders destroy local holistic, sustainable ways of life embedded in diverse cultures.

The reporting has been so awful on this, it all seems kind of nonsensical. Everyone knows it's a big deal while simultaneously being unable to articulate why.

She can be made to look like Leona Helmsley in a hurry. After all, I can't imagine that any non-political appointee who did this wouldn't be facing charges.

I believe I know the who, and they are fine with any other Democrat getting anywhere near the nomination as long as it isn't her.