The investigation into Secretary Clinton's use of a personal email server has come to a close. There are two general conclusions that frame the result of the investigation: Secretary Clinton is not being charged with a crime, and Secretary Clinton has acknowledged that having a private email server was a mistake.
That's what happened. The rest of the public chatter is unsubstantiated speculation about whether the process was legitimate and what pundits and others think should have been done, as well as the details of what actually happened.
The FBI conducted its extensive investigation apart from the political sturm and drang that surrounded this issue on the outside. Investigators followed the evidence and the law in reaching their conclusions. No one could accuse FBI Director Comey of being soft on Secretary Clinton. He made harsh remarks about the use of a personal email server, reflecting his assessment of the situation.
As to what should have been done, there are plenty of arm chair lawyers and investigators passing judgement without evidence and in most cases without a clear understanding of the law and how it is applied. They apparently wanted a specific result--charges to be leveled, or at least they wanted others to believe that charging the Secretary was somehow justified despite the fact that the investigation led to an opposite conclusion.
In this regard, it is useful to read exactly what Director Comey said in his news conference about the investigation "In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these (the investigation's) facts." The facts do not support prosecution no matter what pundits and politicians may say.
The more complicated issues pertain to what happened. The gist of Director Comey's critical comments reflect his concern about the handling of classified material. To be sure, there must be great deference and respect in the treatment of all classified information. No one is questioning this. The issue raised by Director Comey is whether there was a breach of responsibility in this case.
His conclusion was that there was carelessness in the handling of some emails that may have contained classified information. He expressed particular concern that these emails were particularly vulnerable because they "were housed on unclassified personal servers not even supported by full-time security staff..." Hacking is a problem, but it is naïve to think that government systems or even the private emails of government officials are protected because of existing security systems or full-time security staff.
There have been efforts to hack with some success computers at the White House, Office of Personnel Management (OPM), the Department of State (after Secretary Clinton's tenure), the Department of Defense, and the personal emails of the Director of the CIA, the Director of National Intelligence and the Deputy Director of the FBI. We are all vulnerable, and more must be done to make public and private systems more secure. But with respect to this investigation, there is no hard evidence, only conjecture, that Secretary Clinton's email server was hacked.
The other issue that needs to be reviewed in a non-partisan way is the US Government classification system. It is flawed and confusing. A 2012 report issued by the Public Interest Declassification Board (PIDB), which was established by Congress, called for an overhaul of the U.S. Government Classification system. Then PIDB head, distinguished national security expert Ambassador Nancy Soderberg, clearly made the case for an overhaul of the U.S. Government classification system, "Our report makes the case that a redesign of the classification system is needed. The current system is 70 years old and is wholly incapable of dealing with the enormous volume of information generated today. Our national security professionals must operate very differently today to keep our nation safe. New policies that promote information sharing, limit classification, and allow for technology use to sift through petabytes of information is essential."
A 2008 article by Steven Aftergood of the Federation of American Scientists discussed an Office of the Director of National Intelligence (ODNI) review of US classification policy that was intended to try and develop a government wide system. Aftergood concluded that "There appears to be no common understanding of classification levels among the classification guides reviewed by the (ODNI) team, nor any consistent guidance as to what constitutes 'damage,' 'serious damage,' or 'exceptionally grave damage' to national security... There is wide variance in application of classification levels."
What this means in practice is there can be confusion on the part of those working on national security issues as to what should be classified in an email and what should not. This is not an excuse to abuse the classification system, but it is an explanation of how some in government may have a legitimate interpretation of what is classified, differing from others handling the same information, particularly if that information is unmarked with a classification level.
While there are two general conclusions that frame the result of the investigation, there are two issues that the investigation raises that must be dealt with to improve security and lessen confusion. The first is to update and make more efficient the government-wide classification system, working with experts like the ODNI and others to ensure that the system will be secure, clear and uniformly implemented. This will help prevent confusion in the future over such issues as to what can be shared on an unclassified system and what must be protected.
The second issue is the need to do more to protect government computer systems from attack. We are vulnerable as a nation to attacks by governments and individual hackers. The recent hacking of government computers is a warning sign that must be heeded. The intelligence community has its "hair on fire" about the need to address this issue. The Government, Congress and the private sector must work together to sort out these and other cyber-related issues that have an impact on our national security. Senator Mark Warner (D-VA) and Representative Mike McCaul (R-TX) have introduced legislation that would establish a commission to look at digital security and related issues, which Secretary Clinton mentioned in her recent speech at Stanford University. Setting up such a commission is a good place to start to get a better handle on how to respond to this pending crisis.
The investigation into Secretary Clinton's personal email server will, unfortunately, continue to lead to a barrage of misinformation and foregone conclusions on what happened. In politics, ignorance is too often bliss when it should be seen as an opportunity to look at issues that need to be dealt with in order to make us more secure. It's like Yogi Berra said about catching, the chattering class is using "the tools of ignorance" to discuss an issue that could be a teaching moment.