FBI Statement on Clinton Email System | Hacker News Reader

FBI Statement on Clinton Email System

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197 pointswhatok174 comments

"To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now."

In other words, "don't think that because Hillary can get away with it, you can, too."

> In other words, "don't think that because Hillary can get away with it, you can, too."

Seems like that's reinforced by this line as well (emphasis mine):

>> Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

>> how similar situations have been handled in the past

Has there been anything like this before? If I work for the government and forward confidential and secret emails through to a server I'm running myself I imagine I'd have criminal proceedings against me.

Go get some political connections and/or $$ in order to join the next tier of our justice system.

I believe yes. Similar things occurred with Colin Powell and Condoleezza Rice. The precedent being set is: if you're a government officer or official, you're exempt from the law. And even though that may not be the full truth, its the perception that the public is picking up on and it's very bad to be occurring. Depending on who you are, who your friends are, and who you know, if you have the connections you can rest not having to know the law(s). You and I? We must always be on alert, vigilant, and know all the laws at all times lest we be prosecuted. No wonder trust in government is eroding. We need to either a) actually enforce the laws on the books or b) remove the laws from the books we don't intend to faithfully enforce. Selective enforcement is a tragedy.

>Similar things occurred with Colin Powell

not even close. he had a personal aol account he used to test internet connections abroad. he had separate classified and personal lines going into his office, connected to separate devices.

There was classified email in Powell's personal, non-classified email account [1] [2] [3].

[1] http://www.nytimes.com/2016/02/05/us/politics/state-dept-cla...

[2] http://mediamatters.org/blog/2016/03/07/state-dept-concludes...

[3] http://www.politifact.com/truth-o-meter/statements/2016/mar/...

there were two emails, sent to him, that were retroactively marked as classified.

he personally reviewed them and said he has no idea why they are marked classified, and they shouldnt be.

sounds like politics to me.

> the precedent being set is: if you're a government officer or official, you're exempt from the law.

And if you vote for HRC, you're endorsing this POV. Though, at this point I'm willing to believe that at least half the country has no problem with it.

Who doesn't love the politics of consequentialism?

The Reagan Administration sold arms to Iran and used it to fund the Nicaraguan Contras.

Bill Clinton got a blowjob and lied about it.

George W. Bush invaded a country that had nothing to do with 9/11 and created a 13 year mess that has culminated with the creation of ISIS.

Hillary Clinton mishandled some classified e-mails.

creation of ISIS is the result to Hillary's and Obama's policies.

Bill looks kinda odd in this list. i like the guy, he lived good life.

before you downvote, try to remember who invaded Lybia, which opened major can of jihady worms. maybe you also remember Bengazi. then think which president started mess in Syria (second major source of jihadies and home to ISIS). Bush was a moron, but it doesn't mean we should blame him for everything.

I think there is a difference between administrative consequences and legal consequences. And Comey was running a criminal investigation. I think that she should not be able to get a security clearance for any unelected position. I don't really think that she escaped a criminal conviction because of who she is.

I also think that +50% of voters electing her president should override that concern if she wins this election. But that's not because I think the law shouldn't apply to her, its because I think the president needs access to classified material.

violating the terms of your security clearance agreement is not generally a criminal offense. You will almost certainly lose your clearance and your job but you have to have committed an actual crime to be prosecuted. If their is not evidence of classified material being leaked then there is no crime. My guess is that there is no evidence of a crime in this case. If she were still Sec. of State she would have bigger problems I imagine because she would lose her clearance at the very least and likely her job. Where things get interesting to me is that by being elected to office she is put in a position to require a clearance. A typical person (one that has had a clearance revoked) would not be granted a new clearance. I suspect the rules are different when you get elected president.

> Where things get interesting to me is that by being elected to office she is put in a position to require a clearance. A typical person (one that has had a clearance revoked) would not be granted a new clearance. I suspect the rules are different when you get elected president.

Being elected POTUS automatically gives you the highest ranking clearance, end of discussion. You could have been a convicted felon with your security clearance stripped and no chance of getting it back, the moment you become POTUS all of that becomes irrelevant for your term.

Indeed. If she were still SoS, she'd probably have to resign over this. But the idea that she could be denied a security clearance as president is kind of ludicrous - especially when you consider that the point of security clearance rules is not to protect the data, but rather to protect the nation. A president who couldn't see the data required to make sound decisions would be actively dangerous. It'd be like driving with a blindfold on.

Of course, this won't make much of a difference to her partisan detractors. Haters gonna hate, and the email scandal is not so much reason as excuse for most of the people who already oppose her. But if she is elected, of course she'll get full presidential security clearance. To do otherwise is stupid.

What matters most to me is that we make changes in both policy and process so this doesn't happen again - policy in that it becomes crystal clear that private email for public business is unacceptable, and process so that the "If you can do your job, we're not doing ours" vibe of the info security world doesn't make the Secretary of State (or anyone else) feel like they can't do their job properly using the official channels.

> the idea that she could be denied a security clearance as president is kind of ludicrous

Certainly so. I'm not sure the same is true of the idea that someone with a proven record of such a careless attitude toward security should be denied the presidency on that basis. That seems like a discussion worth having, although, given the modern political climate in the United States, not one likely to actually occur in any way that's even marginally useful to anyone.

I wouldn't call it a "careless attitude toward security". She's thinking in a different way than we do, because she's a diplomat, not an engineer.

There is no technical reason that a privately administrated email server would be inherently less secure than a government-administrated server (there are good arguments that it's likely to be more secure). However, a private email server is likely to be far more user-friendly and free of "security theater" constraints. Speaking from experience, the usual approach of government and other large organizations to "security" is to throw user experience out the window, forcing ugly/retro "proven" tech on users, requiring complicated and difficult administrative steps to use the system, slow approval and ticketing processes, etc.

The primary job of the Secretary of State is to communicate. Any time wasted on arbitrary tech hoop-jumping, any restrictions on how that communication happens, is keeping the SoS from doing their job. Can you imagine if we were in the middle of a political crisis and suddenly the Secretary of State is on hold with tech support while dealing with a forced password reset or something equally stupid? American lives at risk, and Lotus Notes is the only way to communicate? Etc. See the issue here?

To really resolve the problem, they would need a relentlessly service-oriented approach for whomever is responsible for email at the State Department. It would have to be as friction-free an experience for the user as possible, within the boundaries of security.

Until then, every Secretary of State is going to put their ability to communicate quickly and easily with the most important and powerful people in the world ahead of the kinds of technical wank that the average HN user thinks is important.

Couple of considerations.

There are technical reasons that SIPR and JWICS communications are more secure than a private server. Mostly related to air-gaps and physical key infrastructures.

Secondly, the correspondence in review is internal and not so much related to the external communication role of the SoS. In this specific circumstance, the SoS chose to forgo the security apparatus for internal classified communication for something more user friendly.

An air gap would mean her private email could not reach computers on SIPR and JWICS which implies the SOC's email is not on those networks.*

*baring some sort of store and forward.

You are exactly right. Those systems are closed loop for a reason. The store/forward in this specific case was most likely a human, with a scanner or just retyping documents from those networks on to a unclass network and then sending to the private address. How that is not deliberate we will never know.

I absolutely do see the issue. But I'm not quite ready to concede that

> the kinds of technical wank that the average HN user thinks is important

includes whether or not the details of diplomatic communications at the highest level of our government are trivially available even to middle-tier private actors, to say nothing of potentially hostile states. Call it "technical wank" if you like, but information security exists for a reason, too. Can you imagine if we were in the middle of a political crisis and suddenly most of the Secretary of State's electronic communication is freely accessible to the same people with whom he's trying to negotiate an outcome favorable to the United States? See the issue here?

I totally get what you're saying with regard to user friendliness being a primary concern at this level, and I agree with it. I don't agree that the proper response to UX concerns, however difficult, is simply to throw security to the winds in the cause of easing communication - because security is a primary concern at this level, too.

I don't think of a well-secured email server as "trivially available". I'm presuming that the private server in question could be and was well-secured. Again, I'm asserting that there is no technical reason that a well-administrated private server cannot be every bit as secure as a government-managed server that provides the same access to the outside world. The suggestions of air gaps and other measures suggested here simply won't meet requirements. Remember, those "potentially hostile states" are exactly the kind of actors the SoS needs to be able to reach via email.

Moreover, the security of individual emails depends on the security of the recipient as well as that of the sender. Sensitive/classified emails sent to officials of non-US governments are subject to whatever security they might have. The only solution to this leak vector is to completely ban email as a means of communication - which gets right back to the core requirement that the Secretary of State must be able to communicate quickly and efficiently.

I'm not arguing to "throw security to the winds", and I don't think that's what was done here. Again, I'm asserting there's no reason to believe an email server administrated by the State Department would be any more secure than an email server administrated by skilled private admins.

You're conflating a well-secured email server administered in conjunction with State's infosec team - which I agree would be perfectly reasonable from a security perspective - and what actually obtained in the case at hand.

You're also conflating the responsibilities of State Department personnel with regard to information classified by the government they've sworn to serve, and the responsibilities of other nations' diplomatic personnel with regard to information originating in the government of a state foreign to them.

Neither seems especially conducive to a useful discussion of the matter at hand.

It's not especially conductive to the dream of charging Hillary Clinton, I suppose. But it's a good point.

More to the point, shadow IT exists for a reason. Taken out of the context of the State Department and the political sphere, this was classic shadow IT. I've used shadow IT, and I've provided shadow IT, because I've worked a lot in large, sluggish bureaucracies, and that's How Things Get Done sometimes. "Security" becomes a catch-all excuse for laziness and cowardice.

If she felt like she could do her job with the existing State Department tools, she wouldn't have set up a shadow IT operation, period. It's not like she's completely ignorant of either operational security or political ramifications. To do this, she must have felt thoroughly hampered by the existing system.

I'm sure she did. Perhaps that's a mitigation, and perhaps it's not. Assuming you're right about the extent to which using blessed IT would have made it impossible for Clinton to discharge her diplomatic office, she might have resigned, rather than choose between being derelict in her duty and being derelict in the responsibility she accepted with her oath of office. A high-profile resignation like that, in a preeminent department like State, might have been a cause for real change. Or it might not; we'll never know. In any case, it would've been the principled thing for anyone in such a position to do.

Sticking around at the expense of her oath of office doesn't seem to have worked out all that poorly for her, since she's still apparently a serious contender for the presidency. Should she end up in it, one hopes she'll take that oath a little more seriously than she did the last one.

So she spent four years doing a job she loved, building her credibility for the job she dreamed of probably since childhood, and she did it very well (or as you call it (derelict in her duty and expense of her oath of office). She ran shadow IT so she could do her job efficiently. The cost of it politically was a partisan outrage-scandal that didn't actually change anyone's opinion - those who hate on her would have hated on her anyway, and those who don't aren't interpreting this as treason.

I'd say she won.

Interesting article about the CNI, having a suspended clearance.

https://www.washingtonpost.com/news/checkpoint/wp/2016/01/27...

Wow, that's incredible! Hard to believe he hasn't just been sacked... clearly cannot do his job fully?

Losing her clearance may not mean losing her job - https://www.washingtonpost.com/news/checkpoint/wp/2016/01/27...

I found that one, but I was looking for a case with an Army General had lost his clearance but kept his job...

I'm not sure what clearance the Sec. State gets, but as President she wouldn't need any clearance as the power to classify material stems from her office.

Yeah, I think that being president requires access to classified material. And I believe that the voters electing someone president should be enough to get them access to that material.

Get selected to be a Presidential nominee and that problem will just go away.

I don't know about the exact situation, but plenty of times intelligence has been leaked accidentally. In fact, while I was in Military Intelligence we use to get regular briefings on call such and such number if you hear some dudes at the bar talking about classified information. I've had briefings on what to do if I discover classified material left at a bar. I've had a lot of briefings about classified material being leaked because something happened at a bar... It's a very real issue...

It pretty much boils down to contact FBI CI (https://www.fbi.gov/about-us/investigate/counterintelligence) or the CI agents on base (if it happened on a military instillation.

And one of the big problems (doesn't seem to be the case here) is where aggregated information is at a higher [EDIT: classification] than individual pieces.

For instance, you can know any two of the following and it might only be FOUO (for official use only):

  When a military deployment will happen
  Where it will be to
  Who will be going

But all three, together, are considered classified. (Trivial case, usually not this small a data set, but this is the concept.)

The result is that someone gets apparently safe information from several sources. They put this into a briefing, or talk about it at the bar. The accumulated information is now considered Confidential (or higher), but was developed entirely from non-Confidential (or higher) sources.

>>When a military deployment will happen

>>Where it will be to

>>Who will be going

Having all three aggregated is not classified, but it is critical information (AR530-1, para 1-5, section b(2) [1]). An entire deploying unit is given those 3 bits on information, but the entire unit rarely is 100% on security clearances. EXAMPLE: when 2BCT,25ID deployed in 2004 the entire unit was told when they were deploying and for how long, where they were going, and who units/personnel were going; everyone including that fresh 18y/o 11B PVT that graduated BCT 1 week prior were told.

But yes I agree with you on the first statement about information aggregation.

[1]https://fas.org/irp/doddir/army/ar530-1.pdf

Fair, it was a bad example, just the one that popped into my head. I couldn't remember exactly how it changed when you aggregated those details, but it seemed like a relatively easy example to relate.

Petreaus was just in "similar circumstances" and was sanctioned and fined.

Petraeus worked for Defense, not State.

Actually, by the time they went after him, he had retired from the DoD and was the Director of the CIA, a civilian agency.

> Has there been anything like this before? If I work for the government and forward confidential and secret emails through to a server I'm running myself I imagine I'd have criminal proceedings against me.

Unlikely. You would lose your job for sure, but typically for a criminal prosecution to result there has to be an element of willful unauthorized disclosure of classified info, or very high impact of the disclosure of classified info.

In practice this means that the people who get prosecuted have almost always been people intentionally sharing secrets with foreign entities (spying).

I only know of one case where charges were brought against someone who was not doing that. It was when the feds retaliated against Thomas Drake for whistleblowing against the NSA. Even then the charges got dropped.

Kristian Saucier - https://www.google.com/search?safe=strict&q=kristian+saucier

He took photos of a sub he was stationed on, apparently just for his own use, with no intention of "spying" He's going to jail for a few years.

Might want to edit that link to:

https://www.google.com/search?safe=strict&q=kristian+saucier

or flag it NSFW - when I clicked it, SafeSearch bounced me to the one I just posted. I'm actually at work, so don't intend to investigate, but my guess is "Kristen Saucier" is a different person in a different line of work.

Done - thanks.

In that situation, the military may sometimes be stricter than a civilian agency would be for the same infraction. Anything dealing with nuclear tech has a higher chance of turning into a much bigger deal. The other thing is that he tried to destroy evidence, which usually makes matter worse.

Be that as it may, cases like Saucier's are fairly rare. It happens, but it's the exception rather than the rule.

Her direct predecessor, and their direct predecessor back through five people also used private emails. So, it was practically policy at that point.

Also, it's not like it was secret at the time. Refuge in audacity may seem like an odd defense, but for stuff like this it's actually relevant. I mean if they did try and prosecute it would come off as completely politically motivated.

PS: If you disagree feel free to comment why.

I disagree because "practically policy" is not policy.

http://www.logicalfallacies.info/presumption/tu-quoque/

Yes, go get digital copies of Stars and Stripes for the last ten years, and you will see many cases where Enlisted and Officers are brought up on charges, court martialed, and convicted, for things like this.

Is the SoS subject to the UCMJ?

No. The SoS is not subject to UCMJ.

No, but it's reasonable to wonder why sauce for the goose isn't sauce for the gander in this case.

> No, but it's reasonable to wonder why sauce for the goose isn't sauce for the gander in this case.

Simple. Because politicians transfer from the legislative branch to the executive branch. They (generally) don't entered the armed forces. If they did, I'm sure they'd make sure they have equal protections there as well.

Honestly that paragraph is the biggest WTF I have read in like six months.

Who approves this nonsense? This statement, his bald-faced lies to Congress during the Apple unlock testimony. We (as in, We, the People) need a housecleaning at the FBI and we need it fast.

We have always had a two-tiered justice system and advocates working against it, but if it becomes accepted as fact like this, how can the public keep faith?

If Hillary is elected, I'll be particularly interested in her posture regarding FBI surveillance activities. I would be surprised if she didn't go to bat for them.

Heh, yeah. Everyone knows nothing is going to change in this regard. I mean, she already thinks silicon valley can make strong encryption with backdoors. This is '...what [she's] heard. Let's leave it at that."

Edit: Please, nobody misconstrue what I wrote as me supporting either party. I personally think, given the two candidates we have to choose from, that the U.S. is in a world of hurt.

This is the best argument I've heard to vote for Trump.

> In other words, "don't think that because Hillary can get away with it, you can, too."

Yeah, the whole statement had bits like that thrown in and its a terrifying example of corruption simply because its basically an admission:

A) Clinton gets special treatment because she is politically popular.

B) She stands a good chance of being President solely because A shields her from any criminal charges that would be leveled against someone without A.

A shouldn't happen and the fact it leads to B is horrifying because its clear the political class, wealthy class will always receive special treatment unless there is a landslide rebellion that blocks her from the Presidency.

The alternative is that "prosecute Clinton" is basically synonymous with "use FBI and DOJ resources to put Trump in the White House".

Taking out a major-party presidential candidate during the general election season is going to have very unfortunate implications for the way US politics works. Just imagine in 2020, when President Trump decides to have his re-election opponent investigated and orders an indictment during the general election season. Except that in 2020, it will be a targeted removal and not simply a coincidence. I don't want to live in that world, and indicting Clinton now will lead to that world.

> The alternative is that "prosecute Clinton" is basically synonymous with "use FBI and DOJ resources to put Trump in the White House".

> Taking out a major-party presidential candidate during the general election season is going to have very unfortunate implications for the way US politics works. Just imagine in 2020, when President Trump decides to have his re-election opponent investigated and orders an indictment during the general election season. Except that in 2020, it will be a targeted removal and not simply a coincidence. I don't want to live in that world, and indicting Clinton now will lead to that world.

Bullshit. You just have someone else run for the Democrats.

The General isn't until after the Convention (which hasn't happened and wouldn't until 7/25, fyi) and they could have just said someone being indict'd was too much risk and they'd have to go with someone else.

I think this represents ignorance on the way the system actually works. (i.e. She isn't officially a general election candidate until the Convention, merely the presumptive nominee until that point. )

What it means is that it would be a firing offense at a lot of companies, but it's not a criminal offense.

But this is politics through and through, so I flagged the article in any case.

My take, and I could be wrong, was "We were looking at criminal charges via the legal system. There are other forms of (less severe) punishment like security and administrative sanctions that are often applied."

<humor>Why so much hatin' here? I thought the HN crowd would love someone who had their own email server.</humor>

Hillary probably lost HN support when it became apparent that her security policy was "Oh shit, we're under attack. Shut it off and hope they don't try again tomorrow." ;)

Like 2 years ago there was something on the front page daily about running your own email server.

Obviously if you are of .gov employ, you should not do this.

I do have my own email server, cloud server, etc hosted on DO and don't work for the government. But I have two phones, one for work and one for personal and do not mix work/personal data.

Relevant mail-in-a-box link https://mailinabox.email/

I think Hillary is better suited for jail than the White House, but +1 for a chuckle anyway :-)

"Security or administrative sanctions": presumably things like: lose your security clearance for X months or until you complete Y training/attestations. He's implying that HRC could face those sanctions still.

In some sense mooted by her not being at State at the moment. On the other hand, could be interesting to walk into the presidency having security clearance issues. (Not to say that that would necessarily be a big deal.)

That is not at all what that paragraph means.

It means: Although we recommend against criminal prosecution, we're not saying that this won't warrant some kind of sanctions. But this document is discussion criminal prosecution only, so we're not going to comment on or make a decision about what those sanctions might be.

I suspect they're saying that because those sanctions would come from other organizations and are not a part of the FBI's purview.

They are not saying "Hillary gets away with it, but you won't!"

Exactly. In fact he seems to be recommending some kind of sanctions would be appropriate and deserved. Those won't be forthcoming, however, as she currently is not employed and so the only ramifications will be political blowback.

In other words, politicians don't have the same career consequences for these types of things due to the transience of their postings.

To clarify, TS and TS//SCI clearances do not end the day you leave office, and your NDA still continues to apply.

I have not read the law that discusses whether a person in this situation is eligible to be stripped of clearance.

This is my understanding as well, but I've also read that the security clearance system does not apply at all once you become POTUS.

Should be interesting whether she is cleared for the security briefings while running for President, though.

Interesting. And since she then becomes the head of the Executive branch, won't she technically be the boss of most of the apparatus that should supposedly be prosecuting her (DOJ, FBI, etc). Nobody will want to end up on that side of the table, so at this stage in the presidential race, everyone will be extremely careful and linient, trying to deflect responsability for tough decisions to someone else.

I don't think short of impeachment, there is any mechanism to prosecute a President, or is there?

How ironic it is that any sanctions placed would come from agencies that she aspires to be the ultimate head of. Sanctions against a president? How does that make sense?

Probably right, but a more charitable interpretation would be "If Mrs. Clinton were still working as Secretary, security or administrative sanctions would be appropriate, but her actions do not rise to the level of a prosecutable criminal offense."

> From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

(emphasis mine)

This seems like a clear contradiction of a common Clinton talking point, that none of the e-mails were classified at the time they were sent. Director Comey even goes so far as to use the same language the Clintons have been employing. Will we see a walk-back of that line in light of this?

When has Clinton ever flipped on an issue? cough

Glad you asked!

http://www.cnn.com/2015/06/15/politics/45-times-secretary-cl...

From one of her biggest supporters, no less!

No, there will just be:

>I was cleared of any wrong-doing by the FBI

>At this point does it even matter

The more interesting fact would be to know the Original Classification Authority for each of those emails. As the SoS is one of a very short list of authorities. I would find if difficult to believe that some of those if not most were actually originated at State.

Also, the argument that the action was not knowing or purposeful, seems very unlikely give the fact that the vast majority of executive level State Department correspondence would be classified by authority.

>This seems like a clear contradiction of a common Clinton talking point

Straight from her website:

>Clinton only used her account for unclassified email. No information in Clinton's emails was marked classified at the time she sent or received them.

https://www.hillaryclinton.com/briefing/factsheets/2015/07/1...

Still there. I guess we are through the looking glass where a documented lie (on your own website) about how you handled classified information doesn't disqualify you from running for president.

> I guess we are through the looking glass where a documented lie (on your own website) about how you handled classified information doesn't disqualify you from running for president.

I mean, if she were running against someone who didn't lie constantly, maybe it would? But she's not, so here we are.

> marked classified

That'll be their defense. "This wasn't marked as classified, so I didn't know!"

Nice try, but the wording says no information was marked classified, not no emails. In addition:

>There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for [a classified] conversation.

And, what we know, is that she removed 30,000 "personal emails", from which we know (at least) some are not so personal [1]. I wonder how the investigation would have changed if the FBI would had access to all emails.

[1] http://www.americanthinker.com/blog/2016/06/new_clinton_emai...

(edit: added link)

ThinkProgress posted an article attempting to explan why the bar is high in prosecuting:

http://thinkprogress.org/justice/2016/07/05/3795414/hillary-...

"Yet, as ABC News Legal Analyst Dan Abrams explains, several key words in this provision also weigh against charging Clinton. For one thing, a 1941 Supreme Court decision interprets the phrase “relating to the national defense” to require “‘intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.’ This requires those prosecuted to have acted in bad faith.” That’s a high bar — there’s no apparent evidence that Clinton had reason to believe that her use of a private server would cause information to be obtained that advantaged a foreign nation or that would have caused injury to the United States."

It feels like this was the bar:

"All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here."

Interestingly, those who are strongly opposed to HRC use the term "traitor" frequently. It'll be interesting to see if the more fringe elements pick up on "indications of disloyalty to the US" as the reason why they think this should be prosecuted.

If there turns out to be corruption with the Clinton Foundation it seems like that'd be the case.

I am strongly interesting in seeing her prosecuted less because of my political feelings, but more because I know without a shadow of a doubt that if I, as a person who once had to handle classified information, had done what she had done, I would have been promptly fired and prosecuted to the full extent of the law (and probably then some).

This gets at the root of the kind of unrest that has led to Trump: there is one set of rules for the elites, and another for the rest of us. There is nothing more un-American.

P.S. - this is certainly not to say that Trump is or would be any better: he totally isn't. But this kind of phenomenon is partially to blame for the anger that has led to his candidacy.

What Comey writes is that other people in similar circumstances have faced security and administrative consequences- such as being fired, and their security clearance revoked. That sounds reasonable.

This. And it's disappointing to see more average power liberal citizens fail to appreciate that the lesson of "have power, will not prosecute" is well understood, almost as well understood as the realities of "driving while black."

The longer those in liberal America pretend that Trump will destroy himself with his arrogance, the more difficult it becomes to have empathetic and reasonable discussions about issues that could improve our representative democracy. That includes ranked-choice voting, repealing Citizen's United, and a new Voters Rights Act reflecting 21st century problems.

The thing is, these are like conspiracy theories. Any rebuttal is proof you are hiding something!

The Director of the FBI lays out very clearly what he found, why he won't prosecute, and that this was impartial. But you dismiss all that and say it's because she's an elite. I understand if you believe that - but it's apparent you have already made up your mind and that his response would just confirm one of your two conclusions. She should be prosecuted or she should be prosecuted but she won't because she's an elite.

To my mind, the judgments that Comey represents in his report simply aren't believable ("there was no intent"). The Patraeus prosecution is a good example of a case that was very similar in many respects.

Also, technically, in cases of gross negligence (which is surely applicable in this case), intent doesn't matter to the law. It's still criminal. It might have different penalties attached, but it's still criminal.

Eh, the director of the FBI doesn't prosecute, prosecutors do that. The job of the FBI is to collect and collate the evidence.

Prosecutors in fact explicitly ask police and others they rely on to not substitute their own judgement for what merits prosecution and what not.

Great catch. I should have said "why he isn't recommending prosecution"

> clearly intentional and willful mishandling of classified information

This is the only one you could make a case on, I think. Setting up an external email server was "intentional". But maybe mishandling confidential information wasn't. After all, the campaign's message was that no emails were classified at time of transmission (a statement that turned out to be false). But if all you have to say to get out of this charge is, "I didn't mean to!" then I guess it's pretty clear cut.

> those who are strongly opposed to HRC use the term "traitor" frequently

Those people also use the word "traitor" when they are cut off in traffic, or when the mailman accidentally delivers their Guns & Ammo subscription to their neighbor.

The article addresses only one of the laws that Clinton may well have violated by her actions, 18 U.S. Code § 793, but doesn't address the other law that she likely violated: 18 U.S. Code § 1924.

The FBI and the DoJ did bring charges against Bryan H. Nishimura under that law for something not dissimilar to what Clinton did. I've already posted the relevant bits in another comment on this story: https://news.ycombinator.com/item?id=12041283

And 1924 is short enough to just post here (https://www.law.cornell.edu/uscode/text/18/1924):

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).

(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

From the U.S. Code, 18 U.S. Code § 793 (f):

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer— Shall be fined under this title or imprisoned not more than ten years, or both.

EDIT: IANAL & this might not be the correct code, though I believe it is.

No mention of intent... But read section A, first line says it all.

(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense;

Gross negligence doesn't require intent. My original quote was, in fact, one of the parts of the law that mattered, but there was another: 18 U.S.C. § 1924.

In July of 2015, the DoJ pursued another case, bearing similarity to Clinton's, against Bryan H. Nishimura, a Navy Reservist.

Nishimura’s actions came to light in early 2012, when he admitted to Naval personnel that he had handled classified materials inappropriately. Nishimura later admitted that, following his statement to Naval personnel, he destroyed a large quantity of classified materials he had maintained in his home. Despite that, when the Federal Bureau of Investigation searched Nishimura’s home in May 2012, agents recovered numerous classified materials in digital and hard copy forms. The investigation did not reveal evidence that Nishimura intended to distribute classified information to unauthorized personnel.

In this case there was also a finding of no intent, and yet they pursued the case. And there were conseqences:

U.S. Magistrate Judge Kendall J. Newman immediately sentenced Nishimura to two years of probation, a $7,500 fine, and forfeiture of personal media containing classified materials. Nishimura was further ordered to surrender any currently held security clearance and to never again seek such a clearance.

Really the main difference is that my original posting was for a felony charge and 1924 is a misdemeanor.

For reference: DoJ Announcement https://www.fbi.gov/sacramento/press-releases/2015/folsom-na...

The Charges https://www.justice.gov/usao-edca/file/641316/download

So basically "the evidence says she broke the law, and we recommend no charges be filed". That makes perfect sense.

Seems a good strategy. Given she wins, they can ask for things they want for themselves.

Yeah, I think you nailed it. It's just a little sad to be reminded, once again, how our legal system is hardly "blind" and unbiased. If you're a regular Joe (or Aaron Swartz, or Weev, etc.) you get the book thrown at you and the keys to the jail buried somewhere... if your name is Clinton and you happen to be Secretary of State and candidate for President, you get a wink and nudge and another opening for more "smokey back room" deals.

Of course, this story isn't completely over yet, and the Justice Department could still choose to file charges. But still... I think we can largely see the writing on the wall here.

>Justice Department could still choose to file charges.

Not a shadow of a chance

Since when did HN readers develop a problem with reading comprehension?

Out of curiosity, do people think that Comey made this recommendation based on politics?

This report definitely proves that this scandal is serious. But I can't really think of any reason that I would find this report to be more credible from someone else.

I'd expect that if this was a political investigation, that the recommendation would fall along party lines. But Comey is a Republican. I've heard that there is some personal animosity between the Clintons and Comey. And Comey has a reputation of being highly principled. http://www.theblaze.com/contributions/hillary-clinton-should... (I don't normally read the blaze, but it does show what right-wing conservatives thought about Comey.)

I definitely see how it could appear that Clinton was treated differently than other people, Comey admits that people would face administrative consequences for her actions and explains that away by saying the investigation was criminal and not administrative. But I think that Comey would have delivered a recommendation to prosecute if he believed that was the best decision.

My guess is it was as a political decision but not in the way you discuss.

I would guess Comey knows that Clinton, due to being Clinton, would not be successfully prosecuted, so decided not to recommend prosecution and waste further resources on it.

yes, because repubs have been really good at avoiding waste in the prosecution of HRC...

Yes, many politicians in general like to waste government resources on all kinds of things(republicans, democrats, and third parties).

That doesn't have any relevancy to whether or not Cromey specifically is doing it to avoid waste.

"...a very small number of the e-mails containing classified information bore markings indicating the presence of classified information." How, as a U.S. Federal employee, does someone (Hillary, an aide, an admin, etc...) see classified markings on an unclassified system and not get goosebumps in terror let alone consult proper authorities in or outside chain of command escapes me.

It seems to me like Comey is basically saying that the FBI does not believe that there is enough evidence to suggest that Clinton's intent was to violate the law. Therefore, regardless of the effects of her actions which might have had consequences in a different context, the evidence is not substantial enough to prosecute her.

There's no question she intended to use a personal email server to exchange classified information--that's the violation of law.

Right, but they need criminal or treasonous intent, or gross negligence. "Broke the law" isn't enough, in the same way that old jaywalking charges don't generally get brought up against you, even if somebody can prove it with security camera footage. The bar gets higher when you're digging up old stuff.

Not only that, but there is mountains of evidence that she deleted emails that should have been turned over to the state. In the Judicial Watch case there's been plenty of emails attached to deposition's that weren't included in the public email release, so unless they simply "forgot" to release these emails or they were some of the few that were withheld due to containing "confidential" information then she deliberately worked to withhold these emails, who knows what else she considered "personal" and decided to not turn over to the State Department.

"I'm the most transparent person I know how to be", well, just because frosted glass is semi-transparent doesn't mean it does a good job at it.

You don't need intent. From the press release [emphasis mine]:

> Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

Given the small number of emails, I'd assume they reckoned it to be negligent but not grossly negligent.

So they were "extremely careless" (his words) but not "grossly negligent"? Does anyone know what legal principle is supposed to separate those?

Therein lies the fault. An investigation by the FBI is not a courtroom, so "legal principles" aren't their job, but determining whether they could move forward with a prosecution or not is. I suppose the two are not linearly independent, but IANAL so I don't know enough to make a judgement on it.

It's hard really to tell from here whether this means Clinton is above the law or not, but I can definitely say this gives the appearance of it. Moreover, Trump won't give a shit what the FBI uses, he'll use it against her anyway and big portion of the American public, Trump supporters and non-supporters (ie., disaffected Bernie supporters) will agree with him on this anyway.

Keeping mind that HRC's attorneys screened the original emails collection for examination by the FBI. Seems she might need some better attorneys if they let 130 get through that screen.

Enough to say "Yeah, but everyone else did it, and it wasn't that many, so..."

...and here we are.

The entire thing seems fishy, sure, but playing devil's advocate, you'd wonder if they wouldn't screen out all the confidential emails. Of course, Comey did say even with the filtering, he did not see intentional obfuscation.

The only thing in question now is how the public will view this, and I'm pretty sure the only people who will be convinced are Hillary supporters.

I'm going to have to "up classify" your comment and get back to you later on that.

My understanding is there is the statute and then there is the evaluating if a prosecution would be successful. From what I can tell, no one has been successfully charged for just gross negligence here.

That being said I don't understand entirely why that is at play -- if past convictions under a statute were required to prosecute, then no one would ever be prosecuted for anything.

Last year a Folsom engineer and retired Navy commander was fined $7,500 and placed on two years of probation for transferring classified data from a government computer to a personal computer. The investigation “did not reveal evidence that Nishimura intended to distribute classified information to unauthorized personnel.”

http://www.sacbee.com/news/local/crime/article29506825.html

He is saying more than that though:

All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

You've listed one thing she didn't do, he's actually listed 4 different things that have previously resulted in a recommendation to prosecute that she didn't do, deliberate intent/wilfulness, scope of breach, obvious disloyalty or a subsequent attempt at coverup.

Did anyone really believe that the laws governing the handling of classified material applied to HRC? There was zero chance of an indictment. Snowden should be so lucky.

TL;DR: She was careless, not criminal.

I tend to think she was/is cunning.

Contrasting the fall out from her actions compared to whatever possible gains from using private email servers, I don't see how to describe this whole fiasco as "cunning". She may still be elected, but this is making her campaign more difficult than it needed to be, even if she is not prosecuted.

Yes, clever as a fox for running a wildly insecure server that foreign nations could spy on her from, in order to dodge FOIA.

In some cases being careless is criminal.

I hope you never have to experience a loss because of carelessness.

I certainly have. Who has experienced a loss due to HRC's email policy? I'm just curious. I mean, Benghazi had clear losses, but no firm cause that pointed to her negligence. Then we have emails with clear negligence but no obvious adverse consequence. Guess we luck out either way.

I hope so too.

> "There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past."

That is arguably the most important part of the statement -- since it is the explanation for why they recommend no charges. But it is also unfortunately the most vague and weasely.

It basically says there are "considerations" around intent, context, and similar cases -- but it doesn't say what those "considerations" are. Text book example of weasel words.

>there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

What is the difference between "extremely careless", which he says she was, and "grossly negligent", which he implies she wasn't?

Why is this dead? This is relevant information directly from the source. Isn't this the kind of information that should be on the front page?

One can only assume, but PG is a big supporter of Hillary, and so is @dang.

I like this post over the others because it is an "unbiased" source of information about the case. In that it is a statement directly from the investigation authority. Most news sources only provide sound bites from this and include a spin. However, this statement can be read either way based on how you feel.

In a conversation with my dad I stated that all emails were classified after the fact, I now know better. I sent it to him for two reasons, 1) because he never seeks out sources 2) because it shows that I was wrong, but includes the full context for him. He will still think she is a criminal, and that the FBI should prosecute but now he'll know why.

I wish there was a way to "antiflag" a post that's being moderated to death.

Saw this post being "flagged", wonder why...

@dang... what gives? This is definitely HN-worthy.

What is HN-worthy is decided by HN users. They voted enough to flag it. Probably because there's not anything very interesting or valuable to discuss about it. It will either be an echo chamber or flame baiting.

Looks like it got unflagged. Thanks to dang if he was the one who did it.

Only cosmetic. It's nowhere on any actual page.

"Most active current discussions" link is quite useful for finding big heated (possibly flagged) discussions like this one:

https://news.ycombinator.com/active

Excuse me while I step on my soapbox, but as more of an outside observer this particular issue has really demonstrated the extremely toxic political culture that results from the two party system in the US.

So many reasonable people are very happy to simply brush this away out of some "the enemy of my enemy is my friend" primordial thinking.

While I'm not happy about this outcome, at least it is consistent with the way that I assume our government/legal system operates.

Of the 30,000 (plus more found by investigators), 8 email chains were Top Secret, 37 secret, and ~2,000 confidential (a vast majority of those upgraded after the fact). I'm actually surprised it's not more, but that's still ~10% of the volume.*

(* It's hard to compare apples-to-apples with individual emails vs. threads.)

I'm not too surprised in this outcome. It has nothing to do with Hillary being rich and famous and everything to do with her being a Presidential candidate, and the front-runner, to boot.

Imagine this scenario: The FBI indicts Hillary. The trial itself would derail the election cycle, and there would be a fantastic chance that it costs Hillary either the nomination or the general election. Then further imagine that the FBI fails to convict her through a jury -- or even if they did convict her, imagine one of the upper courts overturns on appeal. The FBI would have accused (indicted) a front-runner presidential candidate and destroyed her chance at winning... only to fail to convict.

That would not only unfairly destroy a found-not-guilty Clinton's presidential ambitions, but it would obliterate any trust in the FBI to remain, at least to the public eye, apolitical.

There's a reason the Attorney General passed the buck, and there's a reason Director Comey declined to recommend charges, and it's this: this is not a slam-dunk case. She may very well be guilty, but for Hillary Clinton, front-runner for the national election for President, the standard of proof is so high that there must be a 100% guarantee of conviction for the FBI to bring forth charges.

Yes, if a normal person had done these things, they would be charged. But if a normal person had allegedly done these things, been indicted by the FBI, and then found innocent, the nation-wide and political trust in the FBI wouldn't go completely down the drain. In all likelihood, a normal person would settle out of court -- something that's not in Hillary's best interest. She needs to be found not-guilty to be President, and settling out of court would look guilty, so they'd go to trial -- again, there's a non-trivial chance that she'd be found "not guilty" by the jury, and the FBI can't risk that in such a high-profile case with such disastrous consequences.

So again, this isn't super surprising when you think about the consequences of indicting Hillary but failing to secure a conviction. The risk to the American legal system just isn't worth it over a couple of emails.

With that in mind, this isn't necessarily Comey declining to charge Clinton; this is Comey passing the buck to the Senate.

Now, once she's a sitting President, the Senate can impeach her, and we're in different territory. The Senate is supposed to be political in ways that the FBI is not.

TL;DR The problem isn't that she didn't commit enough of a crime to indict, the problem is that it isn't a guaranteed SLAM DUNK case, and since that's true, it's TOO RISKY to the election cycle and legal system to indict her.

On top of that, here's an even worse nightmare scenario:

Clinton gets indicted, destroying her chances in the race, and Trump wins by a landslide. Now, let's take a look at how Trump deals with his rivals. He endorses political violence [0]. He wants to use libel laws to destroy journalists who say bad things about him. Now imagine the lesson Trump would learn from Clinton's indictment: the government can hand the presidency to one candidate by using indictments to take out their only significant rival. Sure, the timing of Clinton's presidential campaign and the email investigation was mostly coincidence, but it won't be coincidence in 2020. Because President Trump, using Clinton as precedent, would order an indictment of whoever the Democrats run against him in 2020 and thus guarantee his re-election. And then, in 2024, he'll use indictments to make sure his hand-picked successor will become the next President of the United States.

You want to save the election system? Don't ever indict a major-party candidate during general election season, especially not when the only remaining candidate is as vindictive as Trump.

[0] http://www.vox.com/policy-and-politics/2016/3/12/11211898/do...

I guess we had better immediately cease all legal action against Trump then.

There is probably a conflict of interest here. If Clinton becomes President, won't anyone at the FBI involved in the investigation be subject to retaliation. It would be in the best interest to try to not advise her prosecution and instead suck up to the future President.

This is the statement of the FBI and I respect the finality of their recommendation that comes with this letter and the authority of the person making the recommendation.

If there is to be any debate against this outcome it shall be from a successful attack on one of the premises:

* "... we cannot find a case that would support... " is a very strong statement. A single court proceeding meeting that criteria could invalidate Comey's recommendation. * Emails were deleted before State gave them to FBI. If a single email between Clinton and an aid related to "clearly intentional and willful mishandling of classified information" this could change the outcome. NSA and adversary's signal collections may have a copy of such an email. A leak may change Comey's decision. * FBI was not given full access to Clinton's emails (they were whitelist-filtered first) and Comey does not believe this counts as "[effort] to obstruct justice". Another case which found "efforts to obstruct justice" based on a similar action could invalidate his reasoning. * "But that is not what we are deciding now." If there is any case of DOJ prosecution resulting in "security or administrative sanctions" then it would invalidate Comey's stance that "no charges are appropriate in this case".

> I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them.

Maybe I'm being overly paranoid but he doesn't say the same thing about any of the other emails. Is it plausible that this is intentional? That other emails were intentionally deleted in an effort to conceal them?

If this occurred under the Bush administration there would have been a special prosecutor. In fact, there was a SP for a much more minor issue.

What we are witnessing is the dismantling of the rule of law. Obama has politicized every branch of the executive.

This isn't even in the same ball park as the long list of war crimes committed by the Bush administration, committed with the full cooperation of the Justice department concocting tortured legal interpretations to condone them. Not justifying what's happening here, but Bush administration is very bad comparison if you are trying to show Obama breaking new ground in "dismantling the rule of law".

This is worse. This is a secretary of State hiding her correspondence from the american public (eg. FOIA requests), letting it get stolen by foreign governments, lying about it, colluding with an existing administration to avoid prosecution while running for president.

Bush "war crimes" were not political in nature, were bipartisan (evidenced by how little has changed under Barack Obama), are subject to FOIA, and did not put state secrets at risk.

Subject to FOIA? Not so fast... https://en.wikipedia.org/wiki/Bush_White_House_email_controv...

Yes, so fast genius. Was there any war-crime suspected, accused, or even hinted here? No.

The Hatch Act prohibits the use of government resources, including email accounts, for political purposes. The Bush administration stated the RNC accounts were used to prevent violation of this Act.[2][26]

You guys down-vote because you can't come up with reply and can't admit your political hero's are so brazenly corrupt.

All animals are equal but some animals are more equal than others. (c)

TLDR: "Gross Negligence, but no case." Yeah....

They certainly did not say that there was 'gross negligence'. That would have meant a case.

That's not at all what they said. They said "Clinton and her colleagues...were extremely careless." Gross negligence is a term of art with a very particular legal meaning, even if there's some vagaries in the case law. The two aren't the same. Gross negligence can include extreme carelessness, but it's generally accepted to go well beyond just that.

Well, the post's been flagged--into the memory hole with it!

The piece is brilliant. He is giving ammunition for thousand kill shots while recomending not procecuting her. Brilliant.

Basically what FBI is saying is that she broke the law, compromised national security, could have been hacked by foreign actors but we don't have enough evidence that she did it intentionally so no charges!

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.

There is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.

With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

>> "could have been hacked by foreign actors"

I think we're past that at this point.

Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

I don't think that's how this works. Information is born classified.

The only people who make a deal about "but they were retroactively classified!" never held or considered getting a security clearance. Documents can be retroactively marked if they weren't properly marked to begin with, but that doesn't mean they weren't classified the moment pen was put to paper. A original classifying authority like the SoS should know this and it is no excuse.

Someone has to decide to make the information classified, it doesn't do so on its own. It's possible information can go through the chain all the way to the President before it's marked classified.

Sure, but the SoS is a classifying authority, it's not like this is some grunt in the army that doesn't have any ability to classify information. I'm not going to insinuate that there's no possibility at least some of this information could have slipped under the radar and had no reason to be classified at the time, but I'm not enough of a fool to believe that applies to every instance.

Some information is, but it's not a requirement; there's no law or rule that says information not born classified can't be made so after the fact - indeed, this happens with almost all classified information, after evaluation to determine an appropriate level of secrecy to be applied.

Not in the case of actual security classifications. Take the helicopters used in the Bin Laden raid. People knew of them in the 90s, that's when the stealth helicopter program they came from got started. Then it went silent. Why? Because they got picked up for these particular types of missions, and consequently their development and existence was kept classified. Undoubtedly, any internal documents about it at the time that could be collected and reclassified as Top Secret were.

A lot of programs go this way. "Oh, hey, we have X, it's kind of cool" (Confidential or FOUO at that point). "Oh, that's actually really useful, stop telling anyone about it" (Secret or Top Secret, past documents reclassified).

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