A federal judge—fed up with constant State Department delays—ordered another batch of Hillary Clinton last week, which meant we yet again got to find out how many of the dozens of new emails were held back because they’re classified. Or should I say “classified.”
Given that it is the Central Intelligence Agency that has been, once again, handed the power to determine what is secret and what is not, it’s a shame that more reporters have not been more skeptical of the now-conventional wisdom that there are actually highly sensitive secrets on Clinton’s notorious email server.
In fact, the speed at which the CIA—an agency that has been caught red handed lying over and over again to the media in the past two years and is constantly being accused of over-classifying everything—is suddenly being treated as some sort of neutral, all-seeing arbiter when it comes to secrecy has been absurd.
Now, there are plenty of legitimate reasons why Clinton’s private email server is a serious issue—there are cybersecurity concerns, it violated State Department rules, and it allowed her to completely circumvent the Freedom of Information Act process for years. But let’s stop treating the contents of the email like they are huge national security secrets that imperiled the nation just because US intelligence agencies said so. Most evidence points to the fact that they just another example of the overclassification epidemic that has infected our government for years.
The same charade happens virtually every time the State Department releases a batch of emails as part of complying with multiple Freedom of Information Act (FOIA) lawsuits: Several media organizations “report” several of the emails contain highly classified information and feign shock that such a thing could ever happen.
This time, the headline news out of the release was that 15 percent of emails that were either marked “confidential” or “secret” by the classifiers. Last month the hyperbole was even worse: Information found in Clinton’s emails was sensitive that it was classified “above top secret” (gasp!) and considered a “special access program” (sounds official and important!) that the Inspector General himself couldn’t even look at without getting a higher clearance.
How could State Department officials so flippantly be emailing something so sensitive that it is super classified? Well, it turns out—as it almost always does when we’re talking about classified information and the censorship pen wielding classifiers at the CIA—that the information probably shouldn’t be classified in the first place. After all of the alarmist headlines had already been printed, one official who saw the information in question described it as “innocuous.” Other reports indicated that the emails are likely press clippings describing a drone strike—which the CIA absurdly still considers “above top secret” despite regularly being on the front of the nation’s newspapers.
It should be more than relevant that the CIA is still embroiled in multiple FOIA lawsuits over its drone program and have every incentive to classify any mention of them at the highest possible level because they are still desperately attempting to keep it “secret” to protect themselves from liability or from having a judge rule the program illegal.
It has been the same story since last year when the emails started being released. In September 2015, when the media first reported that “hundreds” of other emails sent to Clinton may contain classified information, there were again multiple headlines underscoring the gravity of the situation. But what exactly do those emails contain? You’d have to skip to the 18th paragraph of the Washington Post report to find out:
The sensitivity of the redacted information in Clinton’s e-mails is not publicly known. Government officials who have seen some of the correspondence saythe conversations are generally benign. Some discuss classified programs or topics that have become well-known through public reporting, said the officials, who spoke on the condition of anonymity to describe classified information.
On top of the information being “benign” and “well-known,” all of the are emails that are at least five years old. The chances of them saying something that is actually sensitive or that could come anywhere close to harming national security is so miniscule it’s hardly even worth discussing.
Which brings us to another issue: the normalization of “retroactive classification,” an even more insidious practice, where information is not sensitive at the time but then magically becomes an important secret over time. It was previously a rare and controversial occurrence, yet is now becoming accepted as legitimate throughout this whole Clinton email exercise.
Dan Metcalfe, a former co-director of the Justice Department’s Office of Information and Privacy told Politico back in July 2015 that retroactive classification is “highly unusual,” stating that:
“It would be an unusual thing indeed if that would be so, even though it could conceivably be so. For State to tell you or give you the impression that is pretty close to routine, that’s not at all so. Only rarely, if ever, would sensitivity increase with the passage of time.”
Yet there are now dozens of emails that the public can’t see because they’ve been retroactively classified—and more appear in every new batch and no one bats an eye.
Now, it’s hard to have sympathy for Clinton on this, because when she was Secretary of State she was one of the administration’s biggest defenders of secrecy and advocated for a harsh punishment for Chelsea Manning when she leaked secret cables to WikiLeaks in 2010. When Manning was facing life in jail, Clinton was quoted as saying:
“I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.”
(Keep in mind the information Chelsea Manning leaked was “secret”— a lower designation than what Clinton has been alleged to have kept on her private email server.)
Her current campaign spokesman, Brian Fallon, who recently claimed some of the censored Clinton emails was an example of “classification run amok.” As Gawker executive editor John Cook remarked, “[P]retty nauseating to see [B]rian [F]allon, who worked at a [J]ustice [D]ept obsessed with enforcing secrecy, making the overclassification argument.”
But as hypocritical as it may be, the best thing Clinton could do is loudly and forcefully use this as an opportunity to take the classification system head on and make it an election issue. Attack the classification system! Call out the CIA! Support FOIA reform! The current system is indefensible. And if it never becomes a national campaign issue, it will never change.
Trevor Timm is the executive director of Freedom of the Press Foundation, a non-profit organization that supports and defends journalism dedicated to transparency and accountability. He is also a twice-weekly columnist for the Guardian, where he writes about privacy, national security, and the media.