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Clinton emails: State evolves on when diplomacy is classified

The type of diplomatic information that accounts for about 90 percent of the messages now deemed classified in former Secretary of State Hillary Clinton's email account is "routinely" and properly circulated in unclassified channels, the State Department said in a letter sent to the Senate earlier this month.

However, State's stance appears to be one the diplomatic agency rejected in another flap over classified information rules more than a decade ago.

In the present controversy, critics have charged that Clinton violated State Department rules and may have broken the law by sending and receiving so-called foreign government information on her personal email account which resided on a private email server at her home in Chappaqua, New York.

But the May 2 letter from State Department legislative liaison Julia Frifield says such information isn't automatically considered classified. She adds that the day-to-day work of diplomats often requires handling such data via ordinary computer and phone systems and discussing it in nonsecure facilities.

"Although the unauthorized release of FGI is presumed to cause harm to the national security-thereby qualifying as Confidential [level] classified information. Department officials of necessity routinely receive such information through unclassified channels," Frifield wrote in the May 2 letter. "For example, diplomats engage in meetings with counterparts in open settings, have phone calls with foreign contacts over unsecure lines, and email with and about foreign counterparts via unclassified systems. Diplomats could not conduct diplomacy if doing so violated the law."

State's stance on the practical difficulties of diplomats doing their work while observing robust safeguards for the protection of sensitive information appears to have changed over time.

During the waning months of the Clinton administration, U.S. Ambassador to Israel Martin Indyk had his security clearances suspended over claims he used unclassified laptops to prepare reports on diplomatic meetings and that he also used those computers on commercial air flights. At the time, the State Department dismissed claims by some diplomats that the imperatives of their jobs required a degree of flexibility in complying with security mandates.

"Some newspaper articles have appeared [saying] 'Everybody does this, it's impossible to do your job without it.' Well, first of all, I've made quite clear to reporters who have written that is not true as far as I'm concerned and as far as the department is concerned. And, second of all, we do have a lot of people in this building that do manage to do their work and follow security standards," Amb. Richard Boucher, State's spokesman at the time, said. (Indyk's clearances eventually were restored.)

"One of the grounds for classifying things is information provided in confidence by a foreign government, where they expect it to be protected," Boucher added. "It crimps your style and makes things more difficult."

Asked about the different thrust of Frifield's letter and State's comments in 2000, State spokeswoman Elizabeth Trudeau said: "The State Department takes the protection of sensitive information seriously. Our letter to the Hill directly relates to the rules surrounding FGI today which have changed over time.”

State's view on the issue now is clearly different than it was 16 years ago, one prominent expert on classified information said.

"I think this latest letter is much more nuanced and seems much more realistic," said Steven Aftergood of the Federation of American Scientists. "Boucher’s scenario is if you hear something at a meeting you have to not do anything about it until you get to a SCIF [sensitive compartmented information facility] and report it then. That's crazy. I think it was crazy at the time, but he was not prepare to acknowledge that diplomats could use unclassified media for their work. ... The latest letter is much more candid and realistic."

Last September, a former State Department official told POLITICO that whatever the rules may be read to require, the practical effect of treating all foreign government information as classified would bring operations at State and the National Security Council to a near standstill.

"The daily operations of State and, I would add, the White House, would not be possible if everyone put everything on the classified email system that involved foreign government information,” said the former official, who asked not to be named. “It doesn’t make sense to me that every single conversation with a foreign government official is per force classified.”

The over 2,000 messages now classified as confidential comprise the bulk of the tally of more than 2,100 messages on Clinton's account now considered classified. But the confidential messages are unlikely to be pivotal in the ongoing FBI investigation into Clinton's email set-up. Instead, investigators are believed to be focusing on 65 messages deemed "Secret" and 22 considered "Top Secret." At least some of those are said to contain sensitive intelligence information gathered by U.S. government spy agencies, although the State Department has insisted it got some of the information independently from other sources.

Frifield's new letter not only owns up to the widespread presence of foreign government information on State's unclassified systems, but goes on to argue that the department's regulations explicitly authorize that.

Both Obama's 2009 executive order on classification "and the Foreign Affairs Manual acknowledge that FGI often can be maintained on systems that otherwise would be inappropriate for safeguarding Confidential information.' In other words, maintaining FGI on unclassified systems often does not amount to mishandling the information. It is not until FGI could be subject to public release that a determination needs to be made as to whether the release would result in damage to national security," the State Department official wrote.

Frifield's letter cites a State policy that says: "When adequate to achieve the required protection, FGI may be handled under standards that are less restrictive than the safeguarding standards that ordinarily apply to U.S. 'Confidential' information, including modified handling and transmission and allowing access to individuals with a need-to-know who have not otherwise been cleared for access to classified information or executed an approved nondisclosure agreement."

But another provision elsewhere in the same State manual appears to indicate that foreign government information conveyed in confidence should always be classified "Confidential." "Employees must handle foreign government information (FGI) in the following manner ... Classify foreign government information, other than NATO information, that is “Restricted,” “Designated,” or “unclassified provided in confidence” as U.S. Confidential to protect it from unauthorized disclosure," the policy says.

However, the manual adds that such information should be marked "Confidential/Modified Handling" or "C/MOD" and can then be handled in unclassified channels. None of the Clinton emails now deemed classified appear to have that marking. Many of those sent to her were originally marked "unclassified."

A State Department official said "Confidental/Modified" markings are rare. "Marking a document FGI-Confidential Modified is done in very narrow and specific instances. For example, in the course of treaty negotiations in which the U.S. government needs to share sensitive information with a foreign counterpart," said the official, who asked not to be named.

Frifield's letter also suggests that State often treats foreign government information as unclassified indefinitely and only designates it as classified if its public release is demanded under the Freedom of Information Act. She notes that several other government agencies have laws on the books that allow them to withhold unclassified information from foreign governments or international organizations. State "has been seeking" such legal authority for years, but Congress has not acted on that request, leaving State with no other way to protect foreign government information other than "upgrading" it to classified when requested," she said.

Frifield's letter, written in response to a March query from Democratic Senators Dianne Feinstein of California, Patrick Leahy of Vermont and Thomas Carper of Delaware, was first reported on this week by The New York Times. Feinstein's office provided a copy to POLITICO.