“Whether it was a personal account or a government account, I did not send classified material and I did not receive any material that was marked or designated classified, which is the way you know whether something is.”

–Clinton, news conference, Las Vegas, Aug. 18, 2015

“I did not e-mail any classified material to anyone on my e-mail. There is no classified material. I’m certainly well-aware of the classification requirements and did not send classified material.”

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— Clinton, news conference, New York, March 10

Many readers have written asking for an examination of Hillary Rodham Clinton’s statements regarding the classification of e-mails sent and received from the former secretary of state’s private e-mail account. The issue has loomed in importance after the Inspector General for the Intelligence Community wrote Congress in August to say that it had reviewed some of the e-mails that have been publicly disclosed and “judged that they contained classified State Department information when originated.”

Note that in her statements that Clinton has been careful to emphasize that she personally did not send “classified material” on her nongovernment account. She has been less definitive about receiving classified material. In her March news conference, she was silent on that issue. In her August news conference, she carefully said she “did not receive any material that was marked or designated classified.”

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That certainly leaves open the possibility that she received classified information—as the IG says–and should have known so at the time.

The Facts

The IG has not disclosed the nature of the e-mails that it has identified. State Department officials and the Clinton campaign have suggested this is mostly an intermural dispute between agencies over what should be classified or not. State Department officials say they are seeking a second opinion from the Office of the Director of National Intelligence.

But a Reuters examination of the e-mails released by the State Department, published on Aug. 21, found that at least 30 e-mail threads contained “foreign government information,” judging from the classification stamps that were added to the e-mails when they were placed in the public domain. “Clinton herself sent at least 17 emails that contained this sort of information,” the report said. “In at least one case it was to a friend, Sidney Blumenthal, not in government.”

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A good example is an e-mail, labeled “Personal: Afghanistan,” sent on Nov. 21, 2009, from Matthew Gould, then chief of staff to British Foreign Secretary David Miliband, to Huma Abedin, one of Clinton’s top aides. Miliband had just returned from a trip to Afghanistan and had written a five-page analysis that he wanted Clinton to read before they had a phone conversation about the trip. Miliband “very much wants the Secretary (only) to see this note,” Gould wrote.

Abedin forwarded it to Clinton’s private e-mail, saying “another note from Miliband that he doesn’t want to send through the system.”

But Miliband’s observations on Afghanistan cannot be viewed today by the general public—and will remain secret until 2029. Every page is redacted, labeled “CONFIDENTIAL–Reason: 1.4(B), 1.4(D).”

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What does that mean? Those are references to executive order 13526, signed by President Obama, referring to two classification categories: “foreign government information” and “foreign relations or foreign activities of the United States, including confidential sources.”

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Ironically, Gould—who now heads Britain’s Office of Cyber Security–wrote that he sent the e-mail “from my home account,” which presumably was also not secure. He sent the e-mail to Abedin’s unclassified State Department e-mail address.

Here’s the e-mail:

“Even if you believe the premise of the Reuters story, the Brits ‘declassified’ it themselves when they sent it via the state.gov email system rather than a secure cable,” said Clinton campaign spokesman Brian Fallon.

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But J. William Leonard, a former director of the U.S. government’s Information Security Oversight Office who worked for Democratic and Republican administrations, said the nature of how the information was transmitted does not make a difference. Classified information could be transmitted by a foreign government official at a cocktail party, he noted.

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“Confidentiality is the coin of the realm,” he said. “We cannot expect to have candid exchanges unless we protect confidentiality.” He said that “what is key here is the expectation when the information was exchanged,” which is why he said Miliband’s request that the commentary was only for Clinton’s eyes is so important.

“I cannot think of a clearer sign of an expectation that this was to be treated in confidence,”Leonard said.

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Miliband and Gould did not respond to requests for comment.

Other experts said there is more wiggle room for interpretation. “A basic structural feature of the classification system is that it is permissive, not mandatory,” said Steven Aftergood, who heads the Project on Government Secrecy at the Federation of American Scientists. He noted that section 1.1 of Obama’s executive order “says ‘may’ be classified if it meets certain conditions, not that it must be.”

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“The executive order does say that all foreign government information should be presumed to cause damage if disclosed without authorization,” Aftergood added. “And that is indeed one of the conditions for classification, but in itself it does not require classification.”

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“There is a lot of subjectivity and discretion,” said Thomas S. Blanton, director of the National Security Archive at George Washington University. “It’s an absurdity that anything a foreign government tells you is automatically confidential.”

Yet at the same time, the State Department has deemed the Miliband message so sensitive that it now must remain secret for another 14 years.

“Does that mean it should have been classified all along? Maybe, but not necessarily,” Aftergood said. “Does that mean that it should not have been held on a private server? Possibly, although it might not have been measurably more secure on the official State Department system.”

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Since 2005, the State Department Foreign Affairs manual has stated that “sensitive but unclassified” information should not be transmitted through personal e-mail accounts. “Classified information must be sent via classified E-mail channels only, with the proper classification identified on each document,” the manual says.

State Department officials point to the fact that Obama’s executive order (in section 1.7) says that information that has been treated as unclassified for months or years can be classified in response to a request for public disclosure, such as Freedom of Information Act request. Another section of the order (4.1) says that foreign government information could be handled “at least equivalent to that required by the government or international organization of governments that furnished the information.”

In other words, information that was once passed through unclassified channels among government officials could later be deemed classified if a member of the public, like a reporter, asked to see it.

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“The State Department is an outward-facing institution,” said Alex Gerlach, a State Department spokesman. “We are America’s face to the world, and that means we have to communicate to the world, whether by email, phone or social media. As diplomats, we naturally receive information from foreign governments — it is part of the job. That information may need to be protected from public release, as we have done under FOIA. We must focus on our responsibility to represent America’s interests and to engage in a dialogue with the world.”

The Pinocchio Test

Clinton’s very careful and legalistic phrasing raises suspicions. She refers to “classified material,” which could be code for documents, leaving open the possibility of “classified information” having been received. She also says she “did not receive any material that was marked or designated classified,” which of course leaves open the possibility of receiving classified information that was not correctly marked.

The Miliband e-mail is now labeled by the State Department to contain classified information, unfit for public disclosure. That holds true for other information that Clinton and her aides routinely exchanged over an unsecure network. The question thus turns on whether Clinton should have at the time recognized that this information could be deemed as classified and should have taken better steps to protect it.

At The Fact Checker, we judge statements through the perspective of an ordinary citizen. The classification rules are complex but, legal technicalities aside, the question is whether classified information was exchanged over her private e-mail system. Never mind the IG’s concerns. According to the State Department redactions of the released e-mails, the answer is yes. Clinton earns Two Pinocchios for excessively technical wordsmithing.

[Update, July 5, 2016: FBI Director James Comey announced on July 5 his agency will not recommend criminal charges against Clinton for her use of private email server. However, he said out of 30,000 emails that Clinton returned to the State Department, 110 emails in 52 email chains were found “to contain classified information at the time they were sent or received” — a contradiction to Clinton’s original, technical wording about whether or not classified materials were in her emails. Eight of the chains contained information that was “top secret” at the time they were sent. Thirty-six chains contained “secret” information. Eight contained “confidential” information, the lowest classification.

Another 2,000 emails were “up-classified” (emails that have reason to be classified now, even if they were not classified at the time they were sent), Comey said.

Moreover, Comey directly contradicted Clinton’s claim that she did not send or receive materials “marked” classified:

“Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”

In light of this information, we update the original Two Pinocchio rating to Four Pinocchios.

A Clinton campaign official sent the following comment in response to Comey’s announcement: “We have not seen the emails the Director is referring to. We heard this for the first time when it was announced on TV, just like everyone else. The Secretary and campaign always have spoken to the best of our knowledge. And it was not just the campaign – but also the State Department, which also reviewed these emails – that had said none of these emails were marked classified. The bottom line is that career officials handling this case have determined that no further action by the Department is appropriate. And that there was no intent to do anything wrong. That is the main takeaway here.”

Update, July 6, 2016: State Department spokesman John Kirby said the department was aware of two emails with a classification marking, and that they were marked classified by mistake. They were call sheets, bearing names of people the Secretary of State planned to call. Kirby said the call sheet markings “were a human error, they didn’t need to be there.” The process is for the secretary to decide to make the call, then change the markings to unclassified, Kirby said.

Kirby did not answer why the markings were still there, and said he did not know whether the FBI found more than two emails with such markings. The FBI did not respond to our request for information on whether there were other emails than the call lists with classification markings.

Update, July 7, 2016: In a hearing before the House Committee on Oversight and Government Reform, Comey provided more details about the marked classified materials. When asked: “Secretary Clinton said there was nothing marked classified on her e-mails, either sent or received. Was that true?” Comey answered: “That’s not true. There were a small number of portion markings on, I think, three of the documents.”

Throughout the hearing, Comey explained that three emails contained “portion markings where you’re obligated, when something is classified, to put a marking on that paragraph.” The emails bore the marking “(C),” indicating there was confidential classified information. It is possible that Clinton was not “technically sophisticated” enough to understood what the “(C)” meant, Comey said, but said a government official should be attentive to such a marking.]

Four Pinocchios

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