POLITICS

Life Is Complicated For Most Lawyers Who Handle Classified Info

Unlike Hillary Clinton's attorney, they don't get safes from the government.

WASHINGTON -- The scenario was simple enough, relatable in any office. An employee had a USB drive. Stored on that drive were emails, sent by a client, to be held for safekeeping.

Except the emails were not just any emails, and the client was not just any client. The correspondence of former Secretary of State Hillary Clinton contained classified information. And it's unclear when the unsecured drive was put into a State Department-provided safe at the office of Clinton’s lawyer David Kendall, an attorney with the D.C. legal powerhouse Williams & Connolly.

The tale of the USB drive, which has been amplified by Clinton's run for the White House, hints at a larger challenge that several classification experts and lawyers say Washington hasn't figured out how to handle. In a town suffering from an epidemic of overclassification, there are a lot of people who touch state secrets. And those people, including private lawyers and human rights advocates, don't always have the resources to guard them.

"It's a tremendous burden," said John Clerici, a Washington-based lawyer with the international firm Dentons who has handled cases involving classified information. "The normal rules don't really work if you're a normal lawyer who has to defend a client who has access to classified [information]."

Once classified information gets into an insufficiently secure system, it's difficult to put that genie back in the bottle.

"At some point, it becomes impossible, because [the information] has seeped into the public domain," said Steven Aftergood, who directs the Federation of American Scientists' Project on Government Secrecy.

Classified communications -- in particular, Top Secret/Sensitive Compartmented Information, or TS/SCI -- are supposed to be stored on secure devices and transmitted using secure networks. When it comes to TS/SCI information, it shouldn't be handled or even talked about unless one is in a Sensitive Compartmented Information Facility, or SCIF. Such facilities are secure soundproof rooms maintained by the U.S. government, many of them in the D.C. metro area.

The feds don't make it easy for nongovernmental personnel to obtain access to classified communications, even if their jobs require it. Several lawyers told HuffPost horror stories of archaic technologies, wasted hours and trips across the country just so they could work inside a dysfunctional secure room. If the cases they're working on involve classified material, there's no other option.

"The technology that's made available to us is awful. You're talking Windows 2000 computers that date back to like the early 2000s or the late '90s. ... We haven't had new computers since Guantanamo opened and the SCIF was established," said Alka Pradhan, legal counsel for Reprieve who represents Guantanamo Bay detainees in cases involving habeas corpus issues. "It's awful. Trying to pull open Microsoft Word, trying to open up any kind of program takes like 20 minutes."

At the SCIF in Northern Virginia for the detainees' lawyers, Pradhan said, complications are the norm rather than the exception.

"People have had to come from overseas actually to read this information," she said. "Firms in New York and California ... they routinely make trips to D.C. to come to SCIF and sort through their mail."

Oftentimes, the detainees'  lawyers will draft the unclassified portions of a court filing in their own office and then bring the document to the SCIF on a USB drive to input the classified material. But that doesn't always go smoothly. USB ports seldom work. Programs don't open.

"I've had to retype the entire thing from scratch," Pradhan said.

Just this week, Pradhan said, she had to use the SCIF to watch classified videos of Guantanamo detainees. When the footage was first made available to the lawyers, the secure room didn't even have machines equipped to play the videos, which were on standard DVDs.

"You factor in a half-hour to 45 minutes just to get situated," Pradhan said. "You have to get the hard drive, key in the hard drive, turn the computer on, power it off again at least twice to re-put in the hard drive. And then you wait for it to power up. Put in a password to access the hard drive. Put the DVD in the drive. Nine times out of ten, it can't read the DVD."

The hassle has some offices in town a little salty that David Kendall, who reportedly didn't even have adequate clearance to handle some of Clinton's emails, somehow was given special treatment.

"I routinely handle classified matters. ... This week we were at [the National Geospatial-Intelligence Agency] reading a classified file; we were supposed to be at CIA reading a bunch of classified files," said Mark Zaid, a national security attorney in Washington. "Over 20 years ... [I've] never been allowed to store classified information anywhere. Never been given a safe. I've asked for one a couple of times."

"We're actually about to file a [Freedom of Information Act] lawsuit involving the decision-making process involved to give [Williams & Connolly's] office a safe. ... I would really like to know why in the world was he allowed to be given one," Zaid said, who added he's fond of Kendall but perplexed at the process.

While Kendall was holding that USB drive for safekeeping, other lawyers seeking classified information tend to be playing for much higher stakes for their clients.

"I had an [Immigration and Customs Enforcement] agent who had been an agent for a decade and had her clearance revoked for reasons that the government won't share with us because they're classified," Zaid said. "It directly impacted her. It led to her losing her clearance and losing her job after working for a decade for the U.S. government. And I had a higher clearance level than what the information was classified at, but wasn't permitted to know what that was. That was extreme."

Materials held inside a SCIF can't be talked about outside the SCIF. Printers, copiers and other devices used to handle the information have to be secure and, when no longer in use, need to be destroyed accordingly.

"If the information is TS/SCI, then they sort of go to the limit," Aftergood said. "The device itself needs to be treated as a secure system and disposed of securely."

The reason, Aftergood explained, is that the thumbprints of classified information are nearly impossible to erase.

"Even a copy machine in many cases will retain copies of the material that it duplicates. So intelligence agencies will insist that those devices be restricted and disposed of in a secure fashion," he said.

Lawyers can find themselves in trouble even when the government itself messes up.

Zaid said he's encountered several instances in which the government realized it had given him more than it intended to or had mistakenly given him classified information. The feds' next steps were aggressive. 

"We've been threatened with criminal prosecution or loss of our security clearance," Zaid said. At this point, after enough fights, he said, he usually just gives it back.

The handling of Clinton's email is a particularly touchy subject now, complicated by the fact that several parties involved say it's unclear who knew what was classified when. But with the abundance of secrets in Washington, the logistics of legal offices handling classified information will remain an ongoing problem.

"I don't think the rules have changed," said Aftergood. "What may have changed is the frequency of litigation and other interactions involving classified government programs."

Williams & Connolly did not respond to multiple requests for comment.

Ryan Grim contributed reporting.

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