Clinton's email controversy opens up fuzzy world of document secrecy

The FBI's decision to reviewa cache of recently discovered emailsthat may be connected toHillary Clinton's private serveris just the latest twist in a scandal thathashaunted the U.S. Democratic presidential candidateon the campaign trail.

The decisionbyFBI director James Comey to inform Congress about this review, which itself hascomeunder scrutiny, is all part of the controversy over whether Clinton was sendingclassified material on her unsecured privateemailserver while she was secretary of state.

The nature of the emails discovered most recently is not known. But sending messages on anunsecureserver could be a problem because of the possibility of hacking. Indeed, as the FBI stated in July,it's a "felony to mishandle classified information either intentionally or in a grossly negligent way."

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But determining exactly what is andisn't classified isn'tas straightforward as it sounds.

'I took it very seriously': Clinton talks classified info

8 years ago

Duration 2:08

Democratic presidential candidate answers questions during national security forum

Clinton and her teamhaveargued thatshe never sent or received information marked classified. But they have also made the case that too muchinformation is over-classifiedand that many of heremailsthat have since beenretroactively classified didn't need to be.

And on the secondpoint, Peter Van Buren, a former State Department official, agrees, in part, with Clinton.

Too much stuff gets classified, there's no question about it.- Peter VanBuren, former U.S. State Department official

"Too much stuff gets classified, there's no question about it," said Van Buren,who held a "top secret" security clearance with the State Department for 24 years.

But it's the originating agency that decides the classification level, he said.

"So whether Hillarylikesit or not that CIA and NSA and the Pentagonclassifiedthestuffshe handled, no one really caredwhat she thought," Van Buren said in an interview before the most recent controversy emerged.

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As for informationoriginatingfromthe State Department, Clinton would have hadthe ultimate authority to unclassifyor lowerthe classification of those documents, he said.

But there's a process, said Van Buren, adding that Clinton never availed herself of that process.

"Shedoesn'tjust get out her red pen and cross out 'secret'and write inunclassified."

3 levels of information

When it comes to classified information, there are generallythree basic levels that apply tosensitive U.S.government information: confidential, secret and top secret.

Confidential information, if disclosed,canreasonably beexpected to cause damage to the national security of the country. According to Executive Order 13256 issued by U.S. President Barack Obama in 2009, secret information maycause "serious damage,"whereas top secret information could cause "grave damage" to national security.

Revelations may compromise strategies and plans or negotiating positions.- Jeffrey Fields,Schoolof International Relations,University of SouthernCalifornia

For example, nuclear weapons design, information about strategy or troop deployments, conversations between the president and foreign leadersor the exact schedule and location of the president while travelling could all fall under one of those classifications, said Jeffrey Fields, professor at the University of Southern California's School of International Relations.

Many of the reporting cables sent from embassies and consulates back to Washington and unveiled in the Wikileaks dump were also deemed classified.

'Potentially at a disadvantage'

"Obviously, if certain classified material is mishandled and subsequently finds it way into the hands of an adversary, you are potentially at a disadvantage," said Fields, a former analyst at the State Department and the Department of Defence who also held a top secret clearance.

"Revelations may compromise strategies and plans or negotiating positions."

UnderExecutive Order 13256, the authority to classify information is given to certain individuals, including the president and vice-president, agency heads and those specifically designated byauthorities outlined in the executive order,said Fields.

People go to prison

People do go to prison or are at least prosecuted for intentionally revealing classified information.Chelsea Manning is serving a 35-year sentence after beingconvicted in 2013 of espionage and other offences for sending more than 700,000 classified documents while working in Iraq.

However,former CIA director and retired general DavidPetraeus, who knowingly gave top secret classified material to his mistress, was later only charged with amisdemeanourfor mishandling classified material and paid a fine of $100,000 US and served no prison time.

Back in July, when Comey announced the results of the FBI investigation into Clinton's emails, hesaid there was no clear evidence Clinton or her colleagues intended to violate laws regarding the handling of classified information. But he saidthere wasevidence "that they were extremely careless in their handling of very sensitive, highly classified information."

There were seven email chains, for example, that concerned top secret information when they were sent and received, he said. Any reasonable person inClinton's position, Comey said, should have known that an unclassified system "was no place for that conversation."

Some critics also believe Clinton's interview with the FBIsuggests she wasn't entirely familiar withthe classification system.

For example, when asked about her knowledge of the three main levels of classification, Clinton said she "did not pay attention to the level of classification and took all classified information seriously."

Clinton has suggested she shouldn't be blamed for sending or receiving classified information via her private email server since none of the material was explicitly marked with the headers "confidential," "secret" or "top secret."

There were, however, three email chains that included one paragraph that was marked with the initial C (for confidential), Comey said.

Clinton, in her interview with the FBI, said she didn't know what the "C"meant at the beginning of the paragraphand "speculated it was referencing paragraphs marked in alphabetical order."

However, Van Buren said that "it is literally beyond comprehension that somebody could handle classified information and not know that."

"It's literally impossible. It's like claiming you're an author but you don't know what periods and commas are."

As secretary of state, Clinton was frequently making public statements on subjects about whichshe knew much more than she could reveal. This fact alonemade it"absolutely critical" that she knew what informationis "highly classified, what is unclassifiedand so forth,"VanBurensaid.

'Still obligated to protect it'

And asComeypointed out in aJuly 5statement, "even if information is not marked 'classified'in anemail, participants who know or should know that the subject matter is classified are still obligated to protect it."

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Some have suggested that Clinton should have been charged for mishandling classified informationand point tocase of a navy sailorwho took pictures on hiscellphoneof an engine room of a nuclear submarine.

But according toFields,"in the case of egregiously mishandling information, generally, the most severe punishment is loss of one's security clearance."