Fox Figures Claim 2009 Executive Order Automatically Classified Communications With Foreign Officials In Clinton's Unmarked Emails

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

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: Clinton's Emails Were “Indisputably Classified” Under Obama's Executive Order. On America's Newsroom on September 2, Fox News contributor Stephen Hayes claimed that Clinton's email communication concerning foreign officials violated Obama's executive order because it was not marked classified:

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 Guest: “It's The Law” That Some Of Clinton's Emails Were “Considered Classified” Even If They Were Not Marked As Such. On the September 1 edition of The Real Story, guest host Heather Nauert asked Shannen Coffin, former White House counsel to Vice President Cheney, about his belief that Clinton violated the law when she sent and received email with former Prime Minister Tony Blair because of the executive order:

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]

But Classification Of Communication With Foreign Officials Is Not Mandatory Under 2009 Executive Order

Executive Order 13526: Classification Can Be Considered Only 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 mandate any classifications. Instead, it authorized communications concerning “foreign government information” and “foreign relations” to be considered for classification if “its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security”:

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]

E.O. 13526: “Information May Be Classified,” And If Classification Need Is In Doubt, “It Shall Not Be Classified.” The order did not mandate that communications dealing with foreign relations must be classified. Instead, it clarified that "[i]f there is significant doubt about the need to classify information, it shall not be classified":

Section 1.1.b

(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. [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 marked 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, told Mother 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]

State Dept. Has Long Utilized Informal Back Channels To Discuss Communications With Foreign Officials

State Department's Use Of “Informal Back Channels” Predates Email. In an August 27 column, David Ignatius of The Washington Post explained that “in the real world of the State Department ... informal back channels [have] existed long before email”:

“It's common” that people end up using unclassified systems to transmit classified information, said Jeffrey Smith, a former CIA general counsel who's now a partner at Arnold & Porter, where he often represents defendants suspected of misusing classified information.

[...]

What happens in the real world of the State Department? Smith takes the hypothetical example of an assistant secretary who receives a classified cable from, say, Paris, about a meeting with the French foreign minister and wants quick guidance from the secretary. So he dashes off an e-mail -- rather than sending a classified cable that would be seen by perhaps a dozen people.

[...]

Informal back channels existed long before e-mail. One former State Department official recalled the days when most embassies overseas had only a few phones authorized for secret communications. Rather than go to the executive office to make such a call, officers would use their regular phones, bypassing any truly sensitive details. “Did we cross red lines? No doubt. Did it put information at risk? Maybe. But, if you weren't in Moscow or Beijing, you didn't worry much,” this former official said.

Back channels are used because the official ones are so encrusted by classification and bureaucracy. State had the “Roger Channel,” named after former official Roger Hilsman, for sending secret messages directly to the secretary. The Joint Chiefs of Staff had a similar private channel. CIA station chiefs could send communications known as “Aardwolves” straight to the director.

Are these channels misused sometimes? Most definitely. Is there a crime here? Almost certainly not. [The Washington Post, 8/27/15]