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The ultimate impact of Hillary Clinton’s email woes is anyone’s guess, but a disclosure this week did the Democratic presidential candidate no favors. The New York Times reported that a second intelligence agency review found Top Secret material in emails Clinton received on her personal account.
The majority view on Fox News’ The Five was that this proved that Clinton played fast and loose with very classified information and broke the Obama administration’s rules. The lone dissenting voice was Juan Williams, who argued that Clinton had the right to exercise her own judgment about how sensitive the material was.
"When it comes to 'classified' at the State Department, she’s the decider," Williams said.
This drew a chorus of you are so wrongs from the rest of the panel. We thought we’d try to sort out whether the secretary of state is the "decider," as Williams put it.
Williams’ assertion is not as out-of-bounds as his fellow panelists on The Five let on.
Clinton, as the head of the State Department, has the authority to classify information. The power is spelled out in President Barack Obama’s executive order on national security information. It reads:
The authority to classify information originally may be exercised only by:
(1) the President and the Vice President;
(2) agency heads and officials designated by the President; and
(3) United States Government officials delegated this authority pursuant to paragraph (c) of this section.
The executive order goes on to say that an agency head, such as Clinton, can designate a deputy to oversee the classification process. The State Department’s Foreign Affairs Manual spells things out a little further, saying that "those occupying various positions in the Department and at posts abroad have the authority to classify information originally as Top Secret. The positions include the Secretary, the Deputy Secretaries, the Under Secretaries, Assistant Secretaries, and some Executive Level IV officials and their deputies; Chiefs of Mission, Charges d’affaires, and U.S. Representatives to various international organizations."
Long story short, Clinton formally had a role in the classification process.
But practically, the responsibility to classify information was not, or ever, solely Clinton’s.
Daniel Metcalfe is professor of law at American University and former director of the Department of Justice’s Office of Information Policy.
"As a practical matter, 99 percent of the time, things that came to her would have been reviewed for classification and acted on by someone lower down," Metcalfe said. "That doesn’t preclude her from saying ‘Oh my goodness, this should be classified,’ because she is the ultimate authority within the State Department. But it wasn’t her role."
Nate Jones, an archivist at the National Security Archives based at George Washington University, drew attention to an additional complexity. Clinton might be the final word at the State Department, but only for material that her agency first produced. If another agency, such as the CIA, was the original author, then it had the right to slap a security label on it that the State Department would need to respect.
"While I believe the other agencies' claims may very likely be dubious -- like claiming that the fact that the United States kills people in Pakistan with drones is classified -- they are allowed to bureaucratically make them despite Clinton being the agency head," Jones told PunditFact.
According to the New York Times article, some of the emails in question contained Top Secret material that originated from intelligence agencies. Clinton has said that emails on her private server contained no information that was marked classified.
Williams did not respond to a request for comment.
Williams said that at the State Department, Clinton was "the decider" over what was and wasn’t classified material.
Formally speaking, there is some truth to the claim. But practically, it’s a stretch.
The responsibility is shared among many people, and while Clinton could play a role, it wouldn’t typically be her primary or even secondary concern. Additionally, the secretary of state isn’t the arbiter of information that originated from another agency.
Williams’ claim is partially accurate. We rate it Half True.
Fox News, The Five, Sept. 9, 2015
New York Times, Second Review Says Classified Information Was in Hillary Clinton’s Email, Sept. 7, 2015
U.S. State Department, Foreign Affairs Manual: Information security
White House, Executive Order 13526- Classified National Security Information, Dec. 29, 2009
U.S. State Department, Foreign Affairs Manual: Classifying and declassifying national security information
Interview, Daniel Metcalfe, law professor, American University, Sept. 10, 2015
Email interview, Nate Jones, archivist, National Security Archives, Sept. 9, 2015
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