[Congressional Record Volume 162, Number 108 (Wednesday, July 6, 2016)]
[Senate]
[Pages S4800-S4814]
Former Secretary Clinton's Use of an Unsecured Email Server
Mr. CORNYN. Mr. President, some have taken yesterday's announcement
by FBI Director Comey as vindicating Secretary Clinton for her use of a
private, unsecured email server. But that would be exactly the wrong
conclusion to draw. While the FBI did not recommend that the former
Secretary of State be indicted, the concerns I have previously raised
time and again have only been reaffirmed by the facts uncovered by
Director Comey and the FBI's investigation.
It is now clear beyond a reasonable doubt that Secretary Clinton
behaved with extreme carelessness in her handling of classified
information and that she and her staff lied to the American people and,
at the same time, put our Nation at risk.
First, Director Comey said unequivocally that Secretary Clinton and
her team were ``extremely careless in their handling of very sensitive,
highly classified information.'' He went so far as to describe specific
email chains that were classified at the Top Secret/Special Access
Program level at the time they were sent and received--in other words,
at the highest classification level in the intelligence community.
Remember, Secretary Clinton said that she never sent emails that
contained classified information. Well, that proved to be false as
well. The FBI Director made clear none of those emails should have been
on an unclassified server--period--and that Secretary Clinton and her
staff should have known better.
Director Comey noted that Secretary Clinton's actions were
``particularly concerning'' because these highly classified emails were
housed on a server that didn't have full-time security staff like those
at other departments and agencies of the Federal Government.
It is pretty clear that Secretary Clinton thought she could do
anything she wanted, even if it meant sending classified information
over her personal, unsecured home server. It should shock every
American that America's top diplomat--someone who had access to our
country's most sensitive information--acted with such carelessness in
an above-the-law sort of manner.
Unfortunately, our threshold for being shocked at revelations like
this has gotten unacceptably high. I saw a poll reported recently that
81 percent of the respondents in that poll believed Washington is
corrupt. Public confidence is at an alltime low, and we ask ourselves
how that could be. Well, unfortunately, it is the sort of activity we
have seen coming from Secretary Clinton and her misrepresentations
and--frankly, there is no way to sugarcoat it--her lies to the American
people--lies that were revealed in plain contrast yesterday by Director
Comey's announcement.
Secondly, we know the FBI found that Secretary Clinton behaved at
odds with the story she has been telling the American people, as I said
a moment ago. To be blunt, yesterday's announcement proved that she has
not been telling the American people the truth for a long, long time
now. When news of her private server first broke, Secretary Clinton
said:
I did not e-mail any classified material to anyone on my e-
mail. There is no classified material.
Yesterday, Director Comey made clear that wasn't true--not by a long
[[Page S4801]]
shot. In fact, he said more than 100 emails on her server were
classified, and, as I mentioned, that includes some of the highest
levels of classification. We are talking not just about some
abstraction here. We are talking about people gaining intelligence--
some in highly dangerous circumstances--who have been exposed to our
Nation's adversaries because of the recklessness or extreme
carelessness of Secretary Clinton and her staff.
Another example: Secretary Clinton also maintained that she gave the
State Department quick access to all of her work-related emails. Again,
according to Director Comey, that wasn't true either. He said the FBI
discovered several thousand work-related emails that Secretary Clinton
didn't turn in to the State Department 2 years ago.
From the beginning, Secretary Clinton and her staff have done their
dead-level best to play down her misconduct, even if that meant lying
to the American people. To make matters even worse, Director Comey
confirmed that Secretary Clinton's actions put our national security
and those who are on the frontlines protecting our national security in
jeopardy. The FBI Director said that hostile actors had access to the
email accounts of those people with whom Secretary Clinton regularly
communicated with from her personal account.
We know she used her personal email--in the words of the FBI
Director--``extensively'' while outside of the continental United
States, including in nations of our adversaries. The FBI's conclusion
is that it is possible that hostile actors gained access to her
personal email account, which, as I said a moment ago, included
information classified at the highest levels recognized by our
government.
My point is that this is not a trivial matter. Remember that several
months ago, Secretary Gates--former Secretary of Defense and head of
the CIA, serving both in the George W. Bush and the Obama
administrations--said he thought the odds were pretty high that the
Russians, Chinese, and Iranians had compromised Clinton's server--
again, all the time while she is conducting official business as
Secretary of State for the U.S. Government.
It was also reported last fall that Russian-linked hackers tried to
hack into Secretary Clinton's emails on at least five occasions. It is
hard to know, much less estimate, the potential damage done to our
Nation's security as a result of this extreme carelessness demonstrated
by Secretary Clinton and her staff. In reality, it is impossible for us
to know for sure. But what is clear is that Secretary Clinton acted
recklessly and repeatedly lied to the American people, and I should
point out that she didn't do so for any particularly good reason. None
of the explanations Secretary Clinton has offered, convenience and the
like, have held up to even the slightest scrutiny. Her intent was
obvious, though. It was to avoid the accountability that she feared
would come from public recognition of her official conduct. So she
wanted to do it in secret, away from the prying eyes of government
watchdogs and the American people.
The FBI may not have found evidence of criminal intent, but there is
no doubt about her intent to evade the laws of the United States--not
just criminal laws that Director Comey talked about but things like the
Freedom of Information laws, which make sure the American people have
access to the information that their government uses to make decisions
on their behalf. These are important pieces of legislation that are
designed to give the American people the opportunity to know what they
have a right to know so they can hold their elected officials
accountable.
In the end, this isn't just a case of some political novice who
doesn't understand the risks involved or someone who doesn't really
understand the protocols required of a high-level government employee.
This is a case of someone who, as Director Comey pointed out, should
have known better.
I know Secretary Clinton likes to talk about her long experience in
politics as the spouse of a President of the United States when she
served as First Lady, as a United States Senator, and then as Secretary
of State. But all of this experience, as Director Comey said, should
have taught her better than she apparently learned.
The bottom line is that Secretary Clinton actively sought out ways to
hide her actions as much as possible, and in doing so, she put our
country at risk. For a Secretary of State to conduct official
business--including transmitting and receiving information that is
classified at the highest levels known by our intelligence community--
on a private, unsecured server when sensitive national defense
information would likely pass through is not just a lapse of judgment;
it is a conscious decision to put the American people in harm's way.
As Director Comey noted, in similar circumstances, people who engage
in what Secretary Clinton did are ``often subject to security or
administrative sanctions''; that is, they are held accountable, if not
criminally, in some other way. He said that obviously is not within the
purview of the FBI. But he said that other people, even if they aren't
indicted, will be subjected to security or administrative sanctions.
Secretary Clinton evidently will not be prosecuted criminally, but
she should be held accountable. From the beginning, I have had concerns
about what Secretary Clinton did and whether this investigation would
be free of politics. However one feels about the latter, it is clear
that Secretary Clinton's actions were egregious and that there is good
reason why the American people simply don't trust her and why she
should be held accountable.
In closing, I would just say that we know there was an extensive
investigation conducted by the FBI, and we know that Director Comey
said that no reasonable prosecutor would seek an indictment and
prosecute Secretary Clinton for her actions. That being the case, I
would join my colleagues--Senator Grassley, chairman of the Senate
Judiciary Committee, and others--who have called for the public release
of the FBI's investigation so we can know the whole story. That would
also include the transcript from the 3\1/2\ hour interview that
Secretary Clinton gave to the FBI, I believe just last Saturday. That
way, the American people can have access to all the information.
What I suspect it would reveal--because it is a crime to lie to an
FBI agent, I suspect Secretary Clinton, perhaps for the first time, in
her interview with the FBI told the FBI the truth. If I were her
lawyer, I certainly would advise her: No matter what happens, you had
better tell the truth in that FBI interview because the coverup is
something you can be indicted for as well.
So I suspect what happened is that, in that FBI interview, she did
tell the FBI the truth. That is where Director Comey got so much of his
information, which he then used to dismantle brick by brick the public
narrative that Secretary Clinton has been spinning to the American
people for the last couple of years.
If transparency and accountability are important, as Director Comey
said yesterday, you would think that Secretary Clinton would want to
put this behind her by also supporting the public release of this
investigation, as well as the transcript of her interview with the FBI.
I will be listening very carefully to see whether she joins us in
making this request. But under the circumstances, where she no longer
has any credible fear of indictment or prosecution, she owes to the
public--and we owe to the public--that the entire evidence be presented
to them in an open and transparent way. That is why the FBI should
release this information, particularly the transcript of this interview
she gave to FBI agents for 3\1/2\ hours at the FBI's headquarters
downtown. Then, and only then, will the American people be able to
render a well-informed and an adequate judgment on her actions taken as
a whole because right now there appear to be nothing but good reasons
why, in poll after poll after poll, people say they just don't trust
her.
Mr. President, I yield the floor.
[...]
[Sen. Carper]:
Federal Records Act
What I want to talk about, Mr. President, is something that, when you
mention it, people really light up. It really excites them; and that is
the Federal Records Act. It will likely lead the news tonight on all
the networks. It is actually topical and I think important. Maybe when
I finish, folks--the pages who are sitting here dutifully listening to
my remarks--will say: That wasn't so bad. That was pretty interesting.
So here we go.
Mr. President, I rise this evening to address the importance of the
Federal Records Act and the recent attention that has been given to the
Federal Government's recordkeeping practices during investigations into
former Secretary of State Hillary Clinton's use of a personal email
server.
Yesterday, as we all know, FBI Director James Comey announced that
the FBI had completed its investigation into Secretary Clinton's use of
a personal email server. After an independent and professional review
that lasted months, the FBI recommended to the Justice Department that
based on the facts, charges are not appropriate and that ``no
reasonable prosecutor'' would pursue a case.
In addition, the State Department's inspector general recently
concluded
[[Page S4809]]
its review of the recordkeeping practices of several former Secretaries
of State, including those of Secretary Clinton.
While these investigations have been the subject of much discussion
in the media and here in the Senate, I just want to put into context
the findings and their relation to Federal recordkeeping.
The truth is, for decades, and across Republican and Democratic
administrations, the Federal Government has done an abysmal job when it
comes to preserving electronic records. When Congress passed the
Federal Records Act over 60 years ago, the goal was to help preserve
our Nation's history and to ensure that Americans have access to public
records. As we know, a lot has changed in our country since that time
due to the evolution of information technology. Today, billions of
documents that shape the decisions our government makes are never
written down with pen and paper. Instead, these records are created
digitally. They are not stored in a filing cabinet, they are not stored
in a library or an archive somewhere but in computers and in bytes of
data.
Because of a slow response to technological change and a lack of
management attention, agencies have struggled to manage an increasing
volume of electronic records and in particular email. In fact, the
National Archives and Records Administration, the agency charged with
preserving our Nation's records, reported that 80 percent--think about
this, 80 percent--of agencies are at an elevated risk for the improper
management of electronic records. As the inspector general's recent
report showed, the State Department is no exception to this
governmentwide problem.
The report found systemic weaknesses at the State Department, which
has not done a good job for years now when it comes to overseeing
recordkeeping policies and ensuring that employees not just understand
what the rules are but actually follow those policies. The report of
the inspector general and the report of the FBI also found that several
former Secretaries of State, or their senior advisers, used personal
emails to conduct official business. Notably, Secretary Kerry is the
first Secretary of State--I believe in the history of our country--to
use a state.gov email address, the very first one.
The fact that recordkeeping has not been a priority at the State
Department does not come as a surprise, I am sure. In a previous
report, the inspector general of the State Department found that of the
roughly 1 billion State Department emails sent in 1 year alone, 2011,
only .0001 percent of them were saved in an electronic records
management system. Think about that. How many is that? That means 1 out
of every roughly 16,000 was saved, if you are keeping score.
To this day, it remains the policy of the State Department that in
most cases, each employee must manually choose which emails are work-
related and should be archived and then they print out and file them in
hard-copy form. Imagine that. We can do better and frankly we must.
Fortunately, better laws have helped spur action and push the
agencies to catch up with the changing technologies. In 2014, Congress
took long-overdue steps to modernize the laws that govern our Federal
recordkeeping requirements. We did so by adopting amendments to the
Federal Records Act that were authored by our House colleague Elijah
Cummings and approved unanimously both by the House of Representatives,
where he serves, and right here in the United States Senate. Today,
employees at executive agencies may no longer conduct official business
over personal emails without ensuring that any records they create in
their personal accounts are properly archived in an official electronic
messaging account within 20 days. Had these commonsense measures been
in place or required when Secretary Clinton and her predecessors were
in office, the practices identified in the inspector general's report
would not have persisted over many years and multiple administrations,
Democratic and Republican. Secretary Clinton, her team, and her
predecessors would have gotten better guidance from Congress on how the
Federal Records Act applies to technology that did not exist when the
law was first passed over 60 years ago.
Let's move forward. Moving forward, it is important we continue to
implement the 2014 reforms of the Federal Records Act and improve
recordkeeping practices throughout the Federal Government in order to
tackle these longstanding weaknesses. While doing so, it is also
imperative for us to keep pace as communications technologies continue
to evolve. While it is not quick or glamorous work, Congress should
support broad deployment of the National Archives' new record
management approach called Capstone. Capstone helps agencies
automatically preserve the email records of its senior officials.
Now, I understand Secretary Clinton is running for President, and
some of our friends in Congress have chosen to single her out on these
issues I think largely for that reason--because she is a candidate--but
it is important to point out that in past statements, Secretary Clinton
has repeatedly taken responsibility for her mistakes. She has also
taken steps to satisfy her obligations under the Federal Records Act.
The inspector general and the National Archives and Records
Administration have also acknowledged she mitigated any problems
stemming from her past email practices by providing 55,000 pages of
work-related emails to the State Department in December of 2014.
The vast majority of these emails has now been released publicly
through the Freedom of Information Act. This is an unprecedented level
of transparency. Never before have so many emails from a former Cabinet
Secretary been made public--never. I would encourage the American
people to read them. What they will show is, among other things,
someone working late at night, working on weekends, working on holidays
to help protect American interests. The more you read, the more you
will understand her service as Secretary of State. She called a dozen
foreign leaders on Thanksgiving in 2009. What were the rest of us doing
that day? She discussed the nuclear arms treaty with the Russian
Ambassador on Christmas Eve. What are most of us doing on Christmas
Eve? She responded quickly to humanitarian crises like the earthquake
in Haiti.
Finally, I should point out that the issue of poor recordkeeping
practices and personal email use are not unique to this administration
or to the executive branch. Many in Congress were upset when poor
recordkeeping practices of President George W. Bush's administration
resulted in the loss of White House documents and records. I remember
that. At times, Members of Congress have also used personal email to
conduct official business, including some who are criticizing Secretary
Clinton today, despite it being discouraged.
Now that the FBI has concluded its review, I think it is time to move
on. Instead of focusing on emails, the American people expect us in
Congress to fix problems, not to use our time and resources to score
political points. As I often say, we lead by our example. It is not do
as I say, but do as I do. All of us should keep this in mind and focus
on fixing real problems like the American people sent us to do.
Before I yield, I was privileged to spend some time, as the Presiding
Officer knows, as Governor of my State for 8 years. After I was elected
Governor, but before I became Governor, all of us who were newly
elected and our spouses were invited to new Governors school for new
Governors and spouses hosted by the National Governors Association.
That would have been in November of 1993. The new Governors school, for
new Governors and spouses, was hosted by the NGA, the chairman of the
National Governors Association, and by the other Governors and their
spouses within the NGA. They were our faculty, and the rest of us who
were newbies, newly elected, we were the students. We were the ones
there to learn. We spent 3 days with veteran Governors and spouses, and
those of us who were newly elected learned a lot from the folks who had
been in those chairs for a while as Governors and spouses. One of the
best lessons I learned during new Governors school that year in
November of 1992, as a Governor-elect to Delaware, was this--and I
don't recall whether it was a Republican or Democratic Governor at the
time, but he said: When you make
[[Page S4810]]
a mistake, don't make it a 1-day problem, a 1-week problem, a 1-month
problem, or a 1-year problem. When you make a mistake, admit it. That
is what he said. When you make a mistake, admit it. When you make a
mistake, apologize. Take the blame. When you have made a mistake, fix
it, and then move on. I think that is pretty good advice. It helped me
a whole lot as Governor and has helped me in the United States Senate,
in my work in Washington with our Presiding Officer on a number of
issues.
The other thing I want to say a word about is James Comey. I have
been privileged to know him for a number of years, when he was
nominated by our President to head up the FBI and today as he has
served in this capacity for a number of years. We are lucky. I don't
know if he is a Democrat, Republican, or Independent, but I know he is
a great leader. He is about as straight an arrow as they come. He works
hard--very hard--and provides enlightened leadership, principled
leadership, for the men and women of the FBI. I want to publicly thank
him for taking on a tough job and doing it well.
I hope we will take the time to sift through what he and the FBI have
found, but in the end, one of the things they found is that after all
these months and the time and effort that has gone into reviewing the
email records and practices of Secretary Clinton--which she says she
regrets. She has apologized for doing it. She said if she had to do it
all over, she certainly wouldn't do it again, even though it wasn't in
contravention of the laws we had of email recordkeeping at the time. We
changed the law in 2014. She has taken the blame. At some point in
time--we do have some big problems we face, big challenges we face, and
we need to get to work on those as well.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Tillis). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. SASSE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Standards for Protecting Classified Information
Mr. SASSE. Mr. President, I sprinted to the floor when I saw the
Senator from Delaware speaking. I have high regard for the Senator from
Delaware. I think he is a man of integrity who has served his country
well, both in the Navy and in this body. I have traveled with the man.
We have explored the Texas-Mexico border before. I think very highly of
him.
I wanted to come to the floor and ask, in light of the comments he
just made about Secretary Clinton, if he has any view about what should
happen the next time, when a career intelligence or military officer
leaks classified information. I am curious as to what should happen
next. And I welcome a conversation with any of the defenders of the
Secretary of State who want to come to the floor and engage in this
issue.
As I see it, one of two things happens the next time a classified
document is leaked in our intelligence community. Either we are going
to not prosecute or not pursue the individual who leaks a document that
compromises national security and compromises potentially the life of
one of the spies who is out there serving in defense of freedom--and we
are potentially not going to pursue or prosecute that individual
because yesterday a decision was made inside the executive branch of
the United States Government to lower the standards that govern how we
protect classified information in this country.
That will be a sad day because it will mean we are a weaker nation
because we decided to lower those standards, not in this body, not by
debate, not by passing a law, but a decision will have been made to
lower the standards by which the U.S. national security secrets are
protected. Or conversely, a decision will have been made to prosecute
and pursue that individual for having leaked secrets, at which point
that individual, his or her spouse and their family and his or her
peers are going to ask the question, which is, Why is there a different
standard for me, the career military officer or the career intelligence
officer, than there is for the politically connected in this country?
As I see it, we are in danger of doing one of two things: We are
either going to make the United States less secure by lowering the
standards that are written in statute about how we govern classified
information in this country, or we are going to create a two-tier
system of justice by which the powerful and the politically connected
are held to a different bar than the people who serve us in the
military and the intelligence community.
Again, I have great respect for the senior Senator from Delaware, but
I listened to his comments. I was in a different meeting, and I saw
that he was speaking. I unmuted my TV and listened to his comments, and
I would welcome him to come back to the floor and engage me and explain
which way he thinks we should go next because one of those two things
is going to happen the next time a classified document is leaked.
Either we are going to not pursue that person and we are going to have
lowered the standards for protecting our Nation's secrets, or we are
going to pursue that person, which means they will be held to a
different standard, a higher standard, than the Secretary of State. I
don't understand that. I don't understand why anybody in this body
would think either of those two outcomes is a good thing.
We do many, many things around here. A small subset of them are
really important. Lots of them aren't very important. This is a
critically important matter. This body and this Congress exist for the
purpose of fulfilling our article I obligations under the Constitution.
The American system of government is about limited government because
we know, as Madison said, that we need government in the world because
men aren't angels, and we need divided government; we need checks and
balances in our government. We need three branches of government
because those of us who govern are not angels.
We distinguish in our Constitution between a legislative, executive,
and a judicial branch, and this body--the legislative branch--is
supposed to be the body that passes the laws because the people are
supposed to be in charge, and they can hire and fire those of us who
serve here. Laws should be made in this body, not in the executive
branch. The executive branch's obligations are to faithfully execute
the laws that are passed in this body.
If we are going to change the standards by which our Nation's secrets
are protected, by which classified information is governed, we should
do that in a deliberative process here. We should pass a law in the
House and in the Senate so that if the voters--if the 320 million
Americans, the ``we the people'' who are supposed to be in charge,
disagree about the decisions that are made in this body, they are
supposed to be able to fire us.
The people of America don't have any way to fire somebody inside an
executive branch agency. Deliberation about the laws and the standards
that govern our national security should be done here, and the laws
should be made here.
For those who want to defend Secretary Clinton, I am very curious if
they would explain to us which way they want it to go the next time a
classified secret is leaked because either we are going to have
standards or we are not going to have standards. If we are not going to
have standards, that is going to make our Nation weaker. If we are
going to have standards, they should apply equally to everyone because
we believe in equality under the law in this country.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. RUBIO. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. RUBIO. I ask unanimous consent that I be allowed to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
