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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.”
In a statement, Clinton campaign spokesman Brian Fallon said, "This is the same interagency dispute that has been playing out for months, and it does not change the fact that these emails were not classified at the time they were sent or received. It is alarming that the intelligence community IG, working with Republicans in Congress, continues to selectively leak materials in order to resurface the same allegations and try to hurt Hillary Clinton's presidential campaign.
"The Justice Department's inquiry should be allowed to proceed without any further interference."
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 identicalnon-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.
Catherine Herridge is an award-winning Chief Intelligence correspondent for FOX News Channel (FNC) based in Washington, D.C. She covers intelligence, the Justice Department and the Department of Homeland Security. Herridge joined FNC in 1996 as a London-based correspondent.
Emails from Hillary Clinton's home server contained information classified at levels higher than previously known, including a level meant to protect some of the most sensitive U.S. intelligence, according to a document obtained by NBC News.
In a letter to lawmakers, the intelligence community's internal watchdog says some of Clinton's emails contained information classified Top Secret/Special Access Program, a secrecy designation that includes some of the most closely held U.S. intelligence matters.
Two American intelligence officials tell NBC News these are not the same two emails from Clinton's server that have long been reported as containing information deemed Top Secret.
The letter doesn't make clear whether Clinton sent or received the emails in question, but in the past, emails containing classified information have tended to have been sent to Clinton, not written by her.
The new revelation underscores the extent to which the email classification issue could continue to dog Clinton, as State Department and intelligence officials review sensitive information within messages that were blacked out before being released to the public.
Clinton, who tops national primary polling as a Democratic presidential candidate, has repeatedly said that none of the information she sent or received while secretary of state was marked classified, and nothing has emerged to contradict that. But it's become clear that classified information bled into the emails, which were sent over unencrypted channels open to interception by foreign intelligence agencies.
Charles McCulllough, the intelligence community's inspector general, said in a letter to the chairmen of the Senate intelligence and foreign affairs committees that he has received sworn declarations from an intelligence agency he declined to name.
The declarations cover "several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET and TOP SECRET/SAP information."
An intelligence official familiar with the matter told NBC News that the special access program in question was so sensitive that McCullough and some of his aides had to receive clearance to be read in on it before viewing the sworn declaration about the Clinton emails.
Clinton's campaign did not immediately respond to a request for comment.
While she was secretary of state from 2009 to 2013, Clinton conducted government business over private email. The arrangement was particularly unusual because the email system relied not on Yahoo or Google but her own server, which she kept in her home in Westchester County, N.Y.
The State Department is under court order to release Clinton's government-related emails under the Freedom of Information Act. Clinton has turned over about 55,000 emails, and almost all have been released, though they have been heavily censored. The last batch is due to be made public Jan. 29.
While Republicans have criticized Clinton over the issue, her defenders have pointed out that the State Department has long faced the problem of how to communicate about sensitive matters. Unlike the CIA, State does most of its business over an unclassified email system, and many officials do not have easy access to a classified messaging system.
State Department spokesman John Kirby said that 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. We have said repeatedly that we anticipate more upgrades throughout our release process. Our FOIA review process is still ongoing. Once that process is complete, if it is determined that information should be classified as Top Secret we will do so."
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