NY Times Reports That Sending “Foreign Government Information” Through Unclassified Systems Does Not “Amount To Mishandling The Information”

Top State Department Official: Officials Are “Allowed To Send ‘Foreign Government Information’ Through The Government’s Unclassified Computer Systems.” The New York Times revealed that the assistant secretary of state for legislative affairs, Julia Frifield, sent a letter to Capitol Hill stating that “officials were in fact allowed to send ‘foreign government information’ through the government’s unclassified computer systems,” and that “‘Department officials of necessity routinely receive such information through unclassified channels.’” Frifield’s letter “went on to say that using ‘foreign government information’ in unclassified emails ‘does not amount to mishandling the information,’” and that these correspondences are only made classified if they have to be released to the public. The Times noted that “nearly three-quarters” of Clinton’s now-classified emails are “classified because they contained what is called ‘foreign government information’” and were publicly released. From the May 11 New York Times report:

Last week, in an apparent attempt to dispel criticism that many of the emails were improperly sent, a top State Department official argued in a letter to three Senate Democrats that the nation’s diplomats and officials were in fact allowed to send “foreign government information” through the government’s unclassified computer systems.

“Department officials of necessity routinely receive such information through unclassified channels,” said the letter, dated May 2 and written by the assistant secretary of state for legislative affairs, Julia Frifield.

“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.”

The letter went on to say that using “foreign government information” in unclassified emails “does not amount to mishandling the information.”

The State Department, unlike some other federal agencies, does not have the authority to redact that category of information even if it is required to release documents under the Freedom of Information Act.

Thus, the only way the State Department could withhold “foreign government information” in the emails being released under court order was to classify it, according to the letter. [The New York Times, 5/11/16]

Classification Of Emails Containing Foreign Government Information Is Not Mandatory Under 2009 Executive Order

Executive Order 13526: Classification Is Not Automatic But Can Be Considered If Unauthorized Disclosure May Cause Damage To National Security. In December 2009, Obama signed an executive order prescribing “a uniform system for classifying, safeguarding, and declassifying national security information.” The order did not automatically mandate classification for  “foreign government information” and “foreign relations,” but instead authorized the consideration for classification if “its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security.” The order further clarified that "[i]f there is significant doubt about the need to classify information, it shall not be classified":

Section 1.1.  Classification Standards.

(b)  If there is significant doubt about the need to classify information, it shall not be classified.  This provision does not:

(1)  amplify or modify the substantive criteria or procedures for classification; or

(2)  create any substantive or procedural rights subject to judicial review.

[...]

Sec. 1.4.  Classification Categories.  Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a)  military plans, weapons systems, or operations;

(b)  foreign government information;

(c)  intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d)  foreign relations or foreign activities of the United States, including confidential sources;

(e)  scientific, technological, or economic matters relating to the national security;

(f)  United States Government programs for safeguarding nuclear materials or facilities;

(g)  vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

(h)  the development, production, or use of weapons of mass destruction. [Executive Order 13526 -- Classified National Security Information, 12/29/09]

Security Expert: Order “Authorizes Classification; It Doesn't Require It.” In an interview with Mother Jones, security expert Steven Aftergood explained that Executive Order 13526 on classification “is permissive, not mandatory.” Rather than requiring that communication between foreign officials be automatically classified, the order “authorizes classification”:

“Strictly speaking, the executive order on classification is permissive, not mandatory,” Steven Aftergood, who writes Secrecy News for the Federation of American Scientists, toldMother Jones. “In other words, it authorizes classification; it doesn't require it.” Aftergood pointed to Executive Order 13526, signed by President Obama in December 2009, which says “information may be originally classified,” but does not explicitly mandate it.

Government policy encourages these sorts of communications to be classified in most instances. “It is obviously good practice to respect the confidentiality of communications from foreign partners if one hopes to maintain a productive relationship,” Aftergood says. But it's not always mandatory, making it hard to judge from the outside whether Clinton mishandled the information in specific instances. [Mother Jones, 8/21/15]

Right-Wing Media Have Previously Hyped Mythical Automatic Classification To Smear Hillary Clinton

Fox’s Monica Crowley: Clinton “Obviously Should Have Known” That Some Of Her Unmarked Emails Were “Automatically Classified” By Obama's Executive Order. Fox News contributor Monica Crowley pointed to Obama’s 2009 executive order to claim it requires all information discussing foreign governments to be automatically classified and thus Clinton should have known she was handling classified information. From the September 1 edition of The O'Reilly Factor:  

CROWLEY: Look, in 2009, Barack Obama issued an executive order called Classified National Security Information. And by doing that, he automatically classified information that is related to information that foreign governments have provided. What we're now hearing from this latest batch, what we can see from these emails, is that nearly all of the emails in question contain information provided by foreign governments.

[...]

Automatically classified. Mrs. Clinton obviously should have known that. [Fox News, The O'Reilly Factor, 9/1/15]

Fox Contributor Stephen Hayes: Clinton's Emails Were “Indisputably Classified” Under Obama's Executive Order. Fox News contributor Stephen Hayes claimed that Clinton's email communication concerning foreign officials was “indisputably classified” and violated Obama's executive order because it was sent in a “non-classified setting.” From America's Newsroom on September 2:

HAYES: The fact that the information that she sent, that she created and sent and also received, was classified -- it's indisputably classified. It's classified according to President Obama's executive order 13526 issued in December of 2009 which suggests that information derived from foreign government sources included in a non-classified setting violates that executive order. That's a huge problem for her. [Fox News, America's Newsroom, 9/2/15]

Fox's Heather Nauert: “There Is A Rule Of Thumb ... That Foreign Government Communications Are Considered Classified.” Fox host Heather Nauert stated that “there is a rule of thumb that everyone in the State Department should know that foreign government communications are considered classified because they could harm national security.” From the September 1 edition ofThe Real Story:

NAUERT: One of the things that you say is that there is a rule of thumb that everyone in the State Department should know that foreign government communications are considered classified because they could harm national security.

COFFIN: It's more than a rule of thumb, Heather. It's the law. By executive order issued by President Obama in the beginning of his administration that says that the disclosure of foreign government information, that is, communications from foreign governments that's intended to be held in confidence, is presumed to harm the national security, which is the threshold for classifying information. [Fox News, The Real Story, 9/1/15]

Fox's Catherine Herridge: Classified Email Chain On Clinton’s Server “Raises Security Implications.”​ Fox News' chief intelligence correspondent Catherine Herridge reported that an email chain which included Hillary Clinton contained conversations about an “Afghan national's ties to the CIA,” which Herridge suggested was a violation of “an executive order signed by President Obama [which] said unauthorized disclosures are 'presumed to cause damage to the national security.'” From the February 17 article:

One of the classified email chains discovered on Hillary Clinton's personal unsecured server discussed an Afghan national's ties to the CIA and a report that he was on the agency's payroll, a U.S. government official with knowledge of the document told Fox News.

The discussion of a foreign national working with the U.S. government raises security implications - an executive order signed by President Obama said unauthorized disclosures are “presumed to cause damage to the national security.”

[...]

While the Clinton campaign claims the government classification review has gone too far, Executive Order 13526, in a section called “classification standards,” says, “the unauthorized disclosure of foreign government information is presumed to cause damage to the national security.” [FoxNews.com, 2/17/16]

Fox’s Andrew Napolitano: “Foreign Intel” Emails “As A Matter Of Law [Are] Always In The Classified Category.”​ While discussing Clinton’s email use, Fox’s senior judicial analyst Andrew Napolitano claimed emails that “say 'foreign intel -- this came from a foreign government,' … as a matter of law is always in the classified category.” From the September 28 edition of Fox News’ America’s Newsroom:

ANDREW NAPOLITANO: She is going to argue, if she is indicted or this gets up to another level, that because the word classified was not stamped on it, it wasn't classified. Guess what, it's never stamped classified. It will say 'confidential,' 'secret,' or 'top secret.' And many of them are so obviously secret that they don't have to say 'confidential,' 'top secret,' or 'secret' because it will say 'foreign intel -- this came from a foreign government,' which as a matter of law is always in the classified category. [Fox News, America’s Newsroom, 9/28/15]