There is also an enormous difference between a secretary of state sending an email to someone inside the department and that same email being released to the general public. Put simply, as anyone who has filed a request for a document under the FOIA knows, not every email or other item can be handed out, even if it was not originally deemed to be so confidential that it required SCIF procedures. The determination of what State Department documents can be publicly released is handled by the FOIA staff, both in the State Department and, when deemed appropriate, by officials with the same duties in the intelligence community. In fact, the entire issue right now regarding the emails of every secretary of state concerns which ones can be released under the FOIA. People outraged by the (false) belief that Powell and Rice’s aides broke the law are creating a fantasy world where every official email, no matter its content, must go through a SCIF just in case the FOIA staff eventually determines, sometime in the future and applying different standards, that the information in the email should not be released to the public under a FOIA request out of classification concerns. Given the cumbersome procedures of using a SCIF, that would mean the secretary of state would have to spend a lot of time sitting inside a locked box and sending emails not yet designated as containing secret information, solely to avoid the partisan gnashing of teeth that could potentially occur if someday the FOIA staff were to retroactively decide they should not be released to the public out of classification concerns.
Which brings us to the next most important issue here: classification. Members of Congress should—and probably do—know this, but the public apparently doesn’t. Just because the FOIA staff decides a document is top secret doesn’t mean it contains information of any import. (It’s widely known that, even in the creation of a document, the government over-classifies information, meaning communications are deemed secret that don’t need to be, but that’s another issue.) The FOIA staff is supposed to be extra-cautious when releasing a document to the public. As I mentioned in a previous column, that is why anyone wanting to obtain a document should file multiple FOIA requests for the information—one staffer might deem something secret that another staffer releases without concern. In fact, if someone were to submit a FOIA request for every email in the State Department that has been sent over a system without the extreme protections reserved for information determined to be top secret on creation, there is no doubt that the FOIA staff would call many of the emails classified and refuse the request.
Plus, both Powell and Rice had the authority, granted by President George W. Bush through executive order, to classify and declassify any document created by the State Department. So if either of them had received an email from another agency containing information that had not gone through a SCIF, he or she could have independently declared that it did not need to be secret and sent it along to anyone they chose.
In other words, just because the FOIA staff years later labeled emails sent from Powell and Rice’s aides as classified does not mean those records contain some crown jewels of critical intelligence. In fact, usually they are quite benign. I have seen emails called “top secret” that contained nothing more than a forwarded news article that had been published. (The Associated Press has reported that one of Clinton’s “secret” emails contains an AP article.)
Then there is the issue of servers. Where did Powell and Rice’s staff have their servers? Who knows, and who cares? Maybe they were private with special security and no public access. Or maybe they were just an AOL server. Whichever it was, they would be just as open to hacking as the State Department servers. In fact, the State Department general email system has been hacked multiple times, with terabytes of information improperly downloaded in 2006 alone. There has been no indication that the email accounts of either Powell or Rice’s staff were compromised.
Powell may have made one mistake in all this. He has said he never backed up his emails or printed them out; that was necessary to comply with some of the preservation rules detailed in the Federal Register. Of course, that doesn’t mean they can’t be recovered, since the FOIA staff is now reviewing his emails.
The bottom line: Democrats may try to turn the revelations about the email accounts used by Powell and Rice’s staff into a scandal. They may release press statements condemning the former secretaries of state; they may call for scores of unnecessary congressional hearings; they may go to the press and confidently proclaim that crimes were committed by these honorable Republicans. But it would all be lies. Powell and Rice did nothing wrong. This could be considered a scandal only by ignorant or lying partisans.
So there is no Powell or Rice email scandal. And no doubt, that will infuriate the Republicans who are trying so hard to trick people into believing Clinton committed a crime by doing the exact same thing as her predecessors.
A sensibile explanation of the email non-scandal
