A government attorney asked a federal court judge Friday to grant the State Department an additional month to complete its release of emails from former Secretary of State Hillary Clinton, blaming the delay on a blizzard blanketing Washington, DC and an "oversight" in which the State Department forgot to deliver thousands of emails to reviewers from other government agencies.
State was supposed to release the final batch of emails next week in response to VICE News' Freedom of Information Act (FOIA) lawsuit, filed in January 2015, which sought all of Clinton's emails. It has been releasing them on a rolling monthly basis since last June. The final batch of emails are expected to contain some of the most important details about the Democratic presidential candidate's work during the waning days of her tenure as the nation's top diplomat.
In a four-page motion filed in US District Court in Washington, DC, Justice Department attorney Robert Prince asked Judge Rudolph Contreras to allow the State Department to complete its production on February 29, after four Democratic primary contests. Prince asked VICE News whether we would consent to the extension. Our attorney, Ryan James, told Prince we opposed it.
"I think it is fair to ask how many more extensions is State going to seek, and what's in the remaining emails that requires so much more time to review and release them?" James said, noting that the State Department initially said last March it would take "several months" to release all of Clinton's electronic communications.
Prince said in a court document filed in US District Court in Washington, DC Friday the extra time is needed to allow completion of the "interagency consultation process," which calls for reviewers from intelligence agencies to scrutinize Clinton's emails for classified information. He said the department's FOIA office had failed to send thousands of emails to the interagency team for review.
State discovered that "during the week of January 11, 2016… a number of pages of the Clinton emails that had been identified during the period June through October 2015 as requiring interagency consultation had not in fact been sent to all the agencies for which consultation was required."
"State overlooked some necessary consultations at a time when the Clinton email team's efforts were focused on processing records that had already gone through interagency consultation in order to meet the monthly interim goals…. Thus, this oversight was not detected until the push to meet the final deadline," Prince said in the court filing. "After discovering this oversight, State immediately began processing these documents, which State ultimately determined to number 7,254 pages, so that they could be sent to the appropriate agencies for review."
He also said the snowstorm that hit Washington, DC, which shut down the federal government Friday afternoon, means the State Department can't send the emails to the interagency reviewers.
"The processing of the documents for sending is finished and delivery to some of the agencies has been completed. Delivery of the remaining documents has been interrupted by the storm and is anticipated to be completed next week," Prince said.
Still, State expects it will fall short in meeting its court ordered monthly production goal at the end of the month.
"This storm will disrupt the Clinton email team's current plans to work a significant number of hours throughout the upcoming weekend and could affect the number of emails that are required to be produced on January 29, 2016," Prince said.
The State Department has posted to its website 43,144 pages of Clinton's emails out of a total of 52,455 pages.
The New York Times first revealed last March that Clinton had exclusively used a private email account to conduct official government business during the four years she served as Secretary of State. Clinton said she decided to use a private email account to conduct official business because it was "convenient." The revelation has negatively impacted her presidential campaign. The FBI has since seized her server and is looking into the matter.
But she said that she never used her private email server, which was hosted at her home in Chappaqua, New York, to transmit information that had been marked "classified," and insists she did nothing wrong.
"I did what other secretaries of state have done," Clinton told Iowa Public Radio in August. "I was permitted to and used a personal email and, obviously in retrospect, given all the concerns that have been raised, it would have been probably smarter not to. But I never sent nor received any classified email, nothing marked 'Classified.' And I think this will all sort itself out."
However, last year, in a five-page declaration, John Hackett, the State Department's top FOIA official, said the department added Intelligence Community reviewers from five of the 17 intelligence agencies to review Clinton's emails after concerns were raised that the her communications were not being properly vetted for intelligence information. To date, the State Department has retroactively classified more than 1,200 of Clinton's emails.
In a letter sent to Congress last week, Charles McCullough, the intelligence community's inspector general (IG), said he received two sworn declarations from the intelligence community who reviewed several dozen of Clinton's emails and determined that her communications contained information deemed to be "CONFIDENTIAL, SECRET, and TOP SECRET/SAP."
Top Secret/SAP, or special access program, is a classified program "that is deemed so sensitive that it requires more rigorous protection than other classified information. Such protection may include heightened "need to know" requirements, cover measures, and other steps," said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists.
"SAP terminology is not usually used in intelligence agencies, which revolve around intelligence compartments, as in 'sensitive compartmented information,' or what they call 'controlled access programs,'" Aftergood said.
So that may be a clue, he said, that the information was classified by the Department of Defense.
"What can we make of the IG's claim? It is hard to draw any firm conclusions without knowing what information is involved," Aftergood said. "If it turns out that it concerns the CIA drone program or other information that has been publicly reported around the globe, that would be rather anticlimactic. It might be some kind of technical violation of the rules, but hardly a national security threat."
Brian Fallon, a spokesman for the Clinton campaign, told the New York Times that the alleged top secret/special access program information that was retroactively classified in the emails "may still revolve around a State Department employee forwarding a published news article about the drone program."
"If so, it would further reinforce how absurd it is to suggest that Secretary Clinton did anything wrong," Fallon said.
Clinton's emails have covered a wide-range of issues, including the troop surge in Afghanistan, the plight of Guantanamo detainees, and accusations that Pakistan has given safe haven to suspected al Qaeda terrorists. There are also mundane topics Clinton and her aides discussed, such as Clinton's difficulty in figuring out how to make a smiley face on her Blackberry.
Over the past couple of months, the State Department has fallen short of meeting its court-ordered monthly production of emails, citing a variety of factors, including a massive backlog, a staff shortage and the need to review the emails for classified information. Hackett, the State Department's FOIA chief, said in court papers last year the FOIA office set out to hire 50 new employees in a effort to speed up the review process and as of last month it hired 18 people, one of whom has since left.
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