Hillary’s Problem: The Government Classifies Everything

Hillary’s Problem: The Government Classifies Everything

By Jeffrey Toobin at the New Yorker

http://www.newyorker.com/news/daily-comment/hillarys-problem-the-government-classifies-everything?mbid=nl_081915_Daily_Text&CNDID=37601024&spMailingID=7998996&spUserID=MTA0ODI3MzE2MzUwS0&spJobID=742351359&spReportId=NzQyMzUxMzU5S0?reload

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As Moynihan explained in his book “Secrecy: The American Experience” and explored during a lifetime in public service, the definition of what constitutes a government secret has never been clear. Classified information is supposed to be defined as material that would damage national security if released. In fact, Moynihan asserted, government bureaucracies use classification rules to protect turf, to avoid embarrassment, to embarrass rivals—in short, for a variety of motives that have little to do with national security. As the senator wrote, “Americans are familiar with the tendency to overregulate in other areas. What is different with secrecy is that the public cannot know the extent or the content of the regulation. Thus, secrecy is the ultimate mode of regulation; the citizen does not even know that he or she is being regulated!”

It’s not only the public who cannot know the extent or content of government secrecy. Realistically, government officials can’t know either—and this is Hillary Clinton’s problem. In investigating only a small portion of her e-mails, government investigators have already flagged more than three hundred that are potentially classified. They will surely find more. As Moynihan noted, government bureaucracies have every incentive to over-classify. It’s the risk-averse approach, and there’s no penalty for erring on the side of caution. Besides, over-classification makes their work seem more important.

In one case, according to media reports, one of Clinton’s potentially classified e-mail exchanges is nothing more than a discussion of a newspaper story about drones. That such a discussion could be classified underlines the absurdity of the current system. But that is the system that exists, and if and when the agencies determine that she sent or received classified information through her private server, Clinton will be accused of mishandling national-security secrets.

The consequences for Clinton, in the midst of a Presidential run, are far more likely to be political than legal. Criminal violations for mishandling classified information all have intent requirements; in other words, in order to be guilty of a crime, there must be evidence that Clinton knew that the information was classified and intentionally disclosed it to an unauthorized person. There is no evidence she did anything like that. This is not now a criminal matter, and there is no realistic possibility it will turn into one. (Clinton’s critics have noted that General David Petraeus pleaded guilty to a misdemeanor in connection with the disclosure of classified information to his biographer. But Petraeus acknowledged both that he knew the information was classified and that his biographer was not cleared to receive it. Because Clinton has said that she did not believe the information was classified, and because she turned it over only to cleared State Department employees, the comparison is inapt.)



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