EXCLUSIVE: Hillary Clinton's emails on her unsecured, homebrew server
contained intelligence from the U.S. government's most secretive and
highly classified programs, according to an unclassified letter from a
top inspector general to senior lawmakers.
Fox News exclusively obtained the unclassified
letter, sent Jan. 14 from Intelligence Community Inspector General I.
Charles McCullough III. It laid out the findings of a recent
comprehensive review by intelligence agencies that identified "several
dozen" additional classified emails -- including specific intelligence
known as "special access programs" (SAP).
That indicates a level of classification beyond even
“top secret,” the label previously given to two emails found on her
server, and brings even more scrutiny to the presidential candidate’s
handling of the government’s closely held secrets.
“To date, I have received two sworn declarations from
one [intelligence community] element. These declarations cover several
dozen emails containing classified information determined by the
IC element to be at the confidential, secret, and top secret/sap
levels,” said the IG letter to lawmakers with oversight of the
intelligence community and State Department. “According to the
declarant, these documents contain information derived from classified
IC element sources.”
Intelligence from a "special access program,” or SAP,
is even more sensitive than that designated as "top secret" – as were
two emails identified last summer in a random sample pulled from
Clinton's private server she used as secretary of state. Access to a SAP
is restricted to those with a "need-to-know" because exposure of the
intelligence would likely reveal the source, putting a method of
intelligence collection -- or a human asset -- at risk. Currently, some
1,340 emails designated “classified” have been found on Clinton’s
server, though the Democratic presidential candidate insists the
information was not classified at the time.
“There is absolutely no way that one could not
recognize SAP material,” a former senior law enforcement with decades of
experience investigating violations of SAP procedures told Fox
News. “It is the most sensitive of the sensitive.”
Executive Order 13526 -- called "Classified National Security
Information" and signed Dec. 29, 2009 -- sets out the legal framework
for establishing special access programs. The order says the programs
can only be authorized by the president, "the Secretaries of State,
Defense, Energy, and Homeland Security, the Attorney General, and the
Director of National Intelligence, or the principal deputy of each."
The programs are created when "the vulnerability of,
or threat to, specific information is exceptional,” and “the number of
persons who ordinarily will have access will be reasonably small and
commensurate with the objective of providing enhanced protection for the
information involved," it states.
According to court documents, former CIA Director
David Petraeus was prosecuted for sharing intelligence from special
access programs with his biographer and mistress Paula Broadwell. At the
heart of his prosecution was a non-disclosure agreement where Petraeus
agreed to protect these closely held government programs, with the
understanding “unauthorized disclosure, unauthorized retention or
negligent handling … could cause irreparable injury to the United States
or be used to advantage by a foreign nation.”
Clinton signed an identical non-disclosure agreement Jan. 22, 2009.
Fox News is told that the recent IG letter was sent
to the leadership of the House and Senate intelligence committees and
leaders of the Senate Foreign Relations Committee, as well as the Office
of the Director of National Intelligence (ODNI) and State Department
inspector general.
Representatives for the ODNI and intelligence community inspector general had no comment.
In a statement, State Department spokesman John Kirby
said, “The State Department is focused on and committed to releasing
former Secretary Clinton’s emails in a manner that protects sensitive
information. No one takes this more seriously than we do.”
The intelligence community IG was responding in his
message to a November letter from the Republican chairmen of the Senate
intelligence and foreign relations committees that questioned the State
Department email review process after it was wrongly reported the
intelligence community was retreating from the “top secret”
designation.
As Fox News first reported, those two emails were “top secret” when they hit the server, and it is now considered a settled matter.
The intelligence agencies now have their own
reviewers embedded at the State Department as part of the Freedom of
Information Act (FOIA) process. The reviewers are identifying
intelligence of a potentially classified nature, and referring it to the
relevant intelligence agency for further review.
There is no formal appeals process for
classification, and the agency that generates the intelligence has final
say. The State Department only has control over the fraction of emails
that pertain to their own intelligence.
While the State Department and Clinton campaign have
said the emails in questions were “retroactively classified” or
“upgraded” – to justify the more than 1,300 classified emails on her
server – those terms are meaningless under federal law.
The former federal law enforcement official said the
finding in the January IG letter represents a potential violation of USC
18 Section 793, “
gross negligence” in the handling of secure information under the Espionage Act.