I'm not sure how many ways I can answer this or how many citations I can provide. You want to go over the IG's report and create a counter argument, be my guest. I've provided an answer and citation for each and every question you've asked and you still seem to be lost in disbelief that Secretary Clinton actually did something wrong.
From two replies, and many more, ago:
In 2009, IRM introduced SMART throughout the Department, enabling employees to preserve a record copy of emails through their Department email accounts without having to print and file them. However, the Office of the Secretary elected not to use SMART to preserve emails, in part because of concerns that the system would allow overly broad access to sensitive materials. As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance.
The above came from the IG's report, which you either are ignoring or can't comprehend. In case of the latter, here's the explanation:
- The Department of State instituted a system called SMART that allows a copy of emails to be stored in compliance with National Archive's rules - The Secretary's office chose "not to use SMART," "because of concerns that the system would allow overly broad access to sensitive materials."
In conclusion, the rest of the Department of State uses a system called SMART to be in compliance. The Secretary's office didn't want to use SMART. Therefore, since there was no other compliant system in place at State, the Secretary's Office had to print and file their emails to remain in compliance.
I've provided that answer multiple times and provided multiple links to the explanation. Have you bothered to read them?
I've also answered, multiple times, where to find the regulations. In fact, I provided what I thought was a helpful pointer to the IG's document that gives the statutes and regulations, along with a detailed history of their origin and interpretation by courts, the Federal Government and the Inspector General's office. Apparently, that still wasn't enough to satisfy your curiosity.
Do your own Google search and when you're ready to counter the IG's report with factual arguments rather than repeating the same questions over and over then you can get back to me.
Call the IG's office. It's not my interpretation, it's theirs. The Inspector General of the Department of State said, and I quote, "...As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance."
What about that statement is unclear to you? What about that statement requires interpretation from me, whether my interpretation is right or wrong; printing and filing are and were the only legal option.
Help me understand how CC'ing, given the statement from State's IG, can in any way allow them to remain in "full compliance with existing FAM guidance." Explain how CC'ing is even a "possible step." The emails had to be printed and filed. They were not. Therefore, the Office of the Secretary was not in compliance with the Federal Records Act - according to the Inspector General.
You're disagreement isn't with me, it's with State's Inspector General. You keep saying I'm wrong in criticizing your solution. O.K., I think your solution is wonderful, fantastic and better than anything anyone else has ever considered. Now, explain to me how it comports with the requirements as outlined by the Inspector General.
I've not only answered these questions before but I provided links to the Inspector General's report. You want to go on and keep defending the indefensible, then go ahead. The links to the exact text of the laws is included in the IG's report. The IG gave a thorough explanation of the history of the legislation, the regulations and how Secretary Clinton failed to follow the law.
You want to armchair quarterback the IG's report then that's your business. But don't pretend to have a discussion or debate when you don't even bother read the fucking responses or citations you've been provided.
In 2009, IRM introduced SMART throughout the Department, enabling employees to preserve a record copy of emails through their Department email accounts without having to print and file them. However, the Office of the Secretary elected not to use SMART to preserve emails, in part because of concerns that the system would allow overly broad access to sensitive materials. As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance.
The above comes from the first paragraph of page 8 of the IG's report.
The regulations under the Federal Records act allow 3 methods for storing email as a record. The State Department doesn't meet the requirements for one of them and the Office of the Secretary chose not to implement another one. That leaves a single, legal method for the Office of the Secretary of the Department of State: printing.
Regardless of the intermediate form, even if the Secretary's office met the requirements in order to use electronic storage of the emails, the method you describe in simply cc'ing someone does not satisfy the process requirements of the regulation. Nor does saying, "Hey, I sent it to someone else in State so, therefore, it's on the up-and-up as far as the Federal Records Act is concerned."
You may think it a simple technical matter to search email archives. It may or may not be depending on how State has implemented their email. It doesn't matter though because National Archives has established a procedure which must be followed and the Secretary's office did not follow the procedure.
I've worked for the federal government and I've sold product to the federal government. I know the documents I was required to sign and I sure as hell stayed on the right side of the law because of the language in those documents. I was reminded on almost every page that violation of the regulations could result in jail time. Secretary Clinton signed such papers when she became Secretary of State. I don't think it's too much to ask that her office follow the law as it relates to federal records.
This has nothing to do with SQL, or IT staff or techies or the internal workings of an email system.
Under the conditions under which the Office of the Secretary of State works there is precisely one acceptable and legal way to follow the law under the Federal Records Act: print and store the emails for transfer to the National Archives. She can print them or her subordinate can print them but printed they must be.
Some of the reasons for this are because of decisions made by past Secretaries of State and continued under Secretary Clinton's watch. This, by the way, will change for all federal agencies on January 1, 2017.
Your complex example is specifically prohibited for recordkeeping because of how the Office of the Secretary is managed - through no fault of Secretary Clinton. What is at fault is her failing to assure that her office executed the statutory requirements incumbent on all members of the cabinet.
You only want to fault her if it was a good statute. Thus far, there's no evidence that the rest of the federal government has any issue with following the law as it relates to record keeping so why should she be exempt?
You keep coming back to using your knowledge of how email systems work and how YOU would perform a search for records. You incorrectly presume that the email system is a valid recordkeeping system for federal records; it is not. It isn't for many reasons spelled out in the National Archives statutes and regulations that implement the Federal Record Keeping statute.
If the email system was a valid recordkeeping system, and if it was a single monolithic system, and if it was capable of never losing data and if it was easily searchable by subject then, just maybe, the National Archives would accept your method of keeping records. Since it isn't, they've chosen a method that differs from your theoretical approach on how it should work. I'm sorry to be the bearer of bad news.
The Federal Record Keeping statute was put in place so that historical records could be preserved until the end of the Republic, or, at least, until they no longer have significance. It was put in place long before emails or electronic recordkeeping systems existed. Email, through the end of this year anyway, is force-fitted into the existing structure.
She and her staff didn't follow the law. That's not my opinion but the opinion of the Inspector General of the Department of State. Go complain to the IG's office if you want an easier SQL implementation put in place.
The statute and regulations specifically made her responsible for assuring that the policies were implemented. This has nothing to do with the technician, IT or anything or anyone else.
Where did I get that copying and forwarding emails is specifically disallowed?
Previously quoted text from the document:
NARA regulations codified in 2009 also specified that agencies must not use an electronic mail system to store the recordkeeping copy of electronic mail messages identified as Federal records unless that system contains specific features.
The system used by State does not contain those features. Therefore, the use of an email system to store the records is specifically disallowed.
Secondly, the forwarding that is allowed is only in conjunction with forwarding to the official email account of the employee (not other employees) when the Capstone system is being used.
From the linked document:
In 2004, NARA issued a bulletin noting that officials and employees "must know how to ensure that records are incorporated into files or electronic recordkeeping systems, especially records that were generated electronically on personal computers."
There were three recordkeeping systems that were an option for emails. Copying and forwarding is not one of them. Therefore, copying and forwarding are specifically prohibited.
Here's more from the linked document:
Since 1995, the FAM has instructed employees, "until technology allowing archival capabilities for long-term electronic storage and retrieval of E-mail messages is available and installed," emails warranting preservation as records must be printed out and filed with related Department records.
In no case is it considered preservation of records to copy or forward an email to another employee of the Department.
From the document, again:
In 2009, IRM introduced SMART throughout the Department, enabling employees to preserve a record copy of emails through their Department email accounts without having to print and file them. However, the Office of the Secretary elected not to use SMART to preserve emails, in part because of concerns that the system would allow overly broad access to sensitive materials. As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance.
You seem to be hung up on how you would technically implement a search system to find emails rather than on what the National Archives under the Federal Recordkeeping act requires of all federal employees. Secretary Clinton was specifically charged with assuring compliance within the Department of State. Maybe her failure to assure compliance is the reason State is being ripped apart in the courts in their active FOIA lawsuits. The IG's report doesn't blame technicians or miscommunication between management and IT; it blames the Secretary and her staff for doing things they were prohibited from doing and failing to do things they were required to do under statute.
I'm not interested in general "judgement" issues in this particular thread, I want to know the exact policies that were alleged violated and see the policy text for it. I want to nerdal around in the details, in terms of policy text and technology.
At the Department, compliance with this regulation and preservation of emails that constitute Federal records can be accomplished in one of three ways: print and file; incorporation into the State Messaging and Archival Retrieval Toolset (SMART); or the use of the NARA-approved Capstone program for capturing the emails of designated senior officials.
Copying or forwarding an email to someone else in the State Department is not one of the choices under the regulations that have been in effect since 1995.
In, fact, later on that page:
NARA regulations codified in 2009 also specified that agencies must not use an electronic mail system to store the recordkeeping copy of electronic mail messages identified as Federal records unless that system contains specific features. However, according to the Department, its technology has "lagged behind" this mandate.
The regulation referenced here is 36 C.F.R. Section 1236.22 (2009) and states that for records to be stored in an electronic recordkeeping system, that system must have the following functions:
(1) Declare records (2) Capture records (3) Organize records (4) Maintain records security (5) Manage access and retrieval (6) Preserve records
The report then goes on to say that agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.
Further, the report states:
However, forwarding to or copying an employee's official email account alone is not sufficient to fully meet records management requirements unless an employee's email is being captured under the Capstone approach. If such an email qualifies as a record, employees are still responsible for preserving it in an appropriate agency recordkeeping system, such as through the use of SMART or printing and filing.
Bottom line: - The employee is responsible for preserving records - This isn't about making sure an email is kept on a system somewhere; the requirement is related to preservation of Federal records in a specific manner - Copying and forwarding emails is specifically disallowed
It makes it a lot less searchable when sent outside the State Department.
How do you suppose a search will work for emails the Secretary sent outside the State Department?
The claim that copying people in the State Department on an email makes that email just as searchable as searching her email account is incredulous.
You are correct that personal emails are not covered by the archive rules. The issue is that she put her personal privacy above her statutory duties as Secretary.
The practical issue is that an individual's emails must be archived in such a way that they can be organized and searched as a "body of records."
The example given for labeling a body of records is, "the e-mail records of the Deputy Secretary from the past fiscal year."
If someone want's to know what the Secretary of State said about a certain subject then they need to search the emails the secretary sent. The way Secretary Clinton performed cc/forwarding of emails then all emails of anyone to whom she sent an email would have to be searched.
It is the responsibility of the head of each Federal agency to make and preserve records including, "effective controls over the creation and over the maintenance and use of records in the conduct of current business." It's hard to see how failing to keep as a record the emails one sent and relying on the addressees to retain those records meets the standard the National Archives has set.
Secretary Clinton said she didn't want anyone to be able to search or examine her personal emails. The system she deployed made it so no one could search her official emails either.
The U.S. Supreme Court ruling in Quill Corp. v. North Dakota had nothing to do with the difficulty of computing sales taxes across multiple jurisdictions and everything to do with the Commerce Clause of the Constitution of the United States.
Some call the application of the Commerce Clause in this matter the "negative" or "dormant" Commerce Clause because it not only grants a specific power to the Congress but also prohibits certain actions by the states.
From the ruling in Quill:
...the Commerce Clause is more than an affirmative grant of power; it has a negative sweep as well. The clause, in Justice Stone's phrasing, "by its own force" prohibits certain state actions that interfere with interstate commerce."
One of those prohibited actions, according to Quill, is the forced collection of state sales taxes by sellers who have no nexus with the state.
This can be resolved rather simply; Congress can pass a law requiring the collection of those sales taxes.
It can also be resolved in a more complex manner; South Dakota can convince the U.S. Supreme Court to overturn or modify its earlier decision in Quill.
Regarding your comment on public services and the requirement of taxation: you're right, the internet doesn't change things. Long before the internet, most, if not all, states that have a sales tax also implemented a use tax that requires the purchasers of products where no sales tax was collected to pay an equivalent amount in a use tax. The taxes are already required under state law but, for the most part, the users of those public services are tax cheats who aren't paying their taxes.
What South Dakota's argument really comes down to is this: we know our citizens are cheating on their taxes and we want you, out of state business, to do our dirty work for us and enforce the collection of those taxes. Oh, by the way, we'll also be auditing your books to be sure you're doing the job properly so you better bone up on our laws and the laws of all other tax jurisdictions as it relates to collection and reporting of taxes.
If a device is thought to contain evidence and a judge is convinced to issue a warrant, which, admittedly isn't necessarily a high bar, then the only judge that can issue a warrant today is a judge with jurisdiction over whatever geographic area in which the device is located. If the location of the device is unknown then no judge can issue a warrant.
If the device is going to be physically seized then the location will, ultimately, need to be known.
However, if the device is going to be accessed remotely then the location doesn't need to be known but a warrant is still needed.
I do see a bigger problem if the device is located outside the jurisdiction of the United States. What is the issue of a U.S. judge issuing a warrant that gathers information from a device located in Germany; especially if access to that data violates German law?
So, what's the balance? If the location of the device is unknown does that mean that no judge may ever issue a warrant to gather information? Or, does hiding a device open the device to warrants from any jurisdiction?
"search or seize an electronic device if the target is using anonymity software like Tor"
That might be what the article said but that's not what the Supreme Court said in its letter to Congress and the President.
The Supreme Court said:
(b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government: * * * * * (6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: (A) the district where the media or information is located has been concealed through technological means;
The change here is that a magistrate can now issue a warrant to remotely access or size electronic information outside their district if the location of that equipment is concealed. What's changed is that a magistrate can now issue a warrant for something outside their district rather than only for devices within their district; but only if the location of the device is concealed.
Economically significant regulatory rules are those that, among other things, "Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities..." (Executive Order 12866)
Clinton issued a total of 361 economically significant rules and Bush issued 358. As of the end of January 2016, Obama had 393 with another 47 on the drawing board (Obama's Midnight).
Obama has been issuing 55 economically significant regulations per year of his administration. Clinton's and Bush's record aren't much better. Over-regulation is a more likely culprit or reduced productivity.
On your other points, I can't recall how unions have contributed to productivity nor how greed necessarily decreases productivity.
It's called cascading inflation. If you raise everyone's wages at the same time then you haven't increased the value of the unit of pay and haven't improved anyone's lives. On the other hand, you can't manipulate one part of the market, such as forcing an increase in one segment, without having an affect on another.
An employer needs to get a certain value from their employee. A minimum wage law essentially states that it is illegal to value the productivity of a given employee below a defined level.
Let's assume that a market values programmers at $100,000/year. Your employer needs 2 programmers and the market says the value of those programming positions is $200,000/year and that market value also represents the utility value to the employer. The employer will go and hire 2 programmers for a total of $200,000/year. Now the government decides to step in and say it's illegal to hire anyone for less than $200,000/year. The employer still needs 2 programmers but the market and utility value of those programmers doesn't justify $400,000/year. I'm guessing that the 2 programmers that are needed won't be hired. Perhaps the employer will hire 1 programmer and pay overtime to get their true cost closer to the utility value of the task. Perhaps they will go to a different market via outsourcing or automate the procedure. The incentive is for the employer to find another solution to their labor unit cost that allows them to stay competitive in the market.
Let's take that down to the minimum-wage hamburger flipper. The easiest way to eliminate that job is to do what some fast food chains have already done to improve food safety - pre-cook the burgers in a central factory and turn the three or four former hamburger flippers into 1 or 2 microwave button pushers.
You can't push one part of the market without expecting it to affect another area.
There's another reason it hurts the lowest-income people the hardest; it makes the lower-value jobs more attractive to the higher-value employees. Let's say that hamburger flipping carries a market value of $5/hour but minimum wage pushes the price in the market paid to $10/hour. There are $10/hour valued workers who perform more difficult or dangerous jobs for that $10/hour. If the employer is forced to hire someone for $10/hour why wouldn't they hire the $10/hour valued worker who provides more value per unit of cost. If the $10/hour worker can work an easier or safer job for the same pay then why wouldn't they take that job. What happens to the $5/hour valued employee?
Of course, you may argue that if the $5/hour worker is being paid $10/hour then that will cause the $10/hour valued employee to be paid $15/hour. I refer you to my first point that raising everyone's pay increases the value of no one's pay.
"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."
It is the president that gets the "shall", not the Senate. The president shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court.
The President "with the advice and consent of the Senate" shall appoint. The President needs the Senate's consent. The Senate has no obligation anywhere in that language to vote on anything. They have not given their consent. How the Senate withholds their consent is up to them and not holding a vote is withholding their consent.
The Congress is a co-equal arm of the government and is not subservient to the Presidency. From Article 1, Section 5, "Each House may determine the Rules of its Proceedings..."
It is up to the Senate to determine how it conducts its business.
Perhaps if the President had actually sought the advice of the Senate then we would have had a nominee that could have satisfied both.
It may not be polite, it may not be wise and it may not be to your liking but the Senate has withheld their consent. You misquote the document and then argue that your misquote is proof that the Senate must take a vote. No vote is required and I invite you to, correctly, quote any part of the Constitution that requires the Senate take a vote.
The other Secretaries of State didn't need to release emails because the State Department already had them.
She was trying to escape FOIA requests and got caught with other crap as well. She was also skirting federal records keeping laws.
What other Secretary of State kept their own personal email server and then, only after being ordered to do so, decided which emails were actually government records that she should then return to the agency for which she was employed.
Congressional inaction is a valid prerogative of the body.
Congress has the power to declare war. While the President is the commander in chief he is also sworn to faithfully execute the law.
If Congress declares war, then passes a law ordering the President to act and the President fails to act then Congress can impeach him. There is a very clear definition of the actions that Congress can take if a President refuses to perform his duties.
Congressional inaction is a fulfillment of their duty. They can use any of their duties to refuse a presidential nomination. Perhaps the President should actually seek Congressional advice before nominating someone if he wants his nominee to be approved.
I've shown the balance of power that would allow Congress to override the President's refusal to defend the country. Can you show Presidential power to override Congressional inaction? It will be difficult because that's how the system was designed to function whether you like the outcome or not.
Your mistaken belief that Congressional inaction is failing to follow through on their job would only make sense if the Executive branch was higher than the Legislative. They are co-equal branches of government. The President can no more set the agenda of the legislative branch than he can convince you or I to jump off a bridge. The system is purposefully designed for leadership and compromise. If neither side will compromise then we are at stalemate or gridlock; an outcome that is purposefully designed into the system.
There is no constitutional duty to for the Senate to act either way regarding the President's nominee. In fact, speaking constitutionally, Congress could, tomorrow, set the number of justices at 8.
The President nominates, with the advice AND consent of the Senate someone to be a justice. The Senate can then consent, not consent or decline to bring the matter to a vote. The Senate sets their rules and determines how Senate business is conducted. Those calling for hearings in order to fulfill constitutional duties are even more off-base; there were no hearings for Supreme Court justices before 1916.
The President and Congress are co-equal branches of the government. It's not too far fetched an argument that the voters knew exactly what they were doing when they gave the presidency to the Democrats and Congress to the Republicans. There might be perfectly rational reasons for the voters to impose forced cooperation or gridlock rather than a single party running away with their own interests.
There may be policy and political reasons that the Senate should act but there are no constitutional duties imposed on the Senate to act.
Most of the world got by just fine yesterday without fire extinguishers, paramedics, police officers, safety belts, etc. Do you actually have a cogent point? Should people be reduced to being victimized by those physically stronger? Should people just take their beat-downs and accept it?
Do you just assume that you'll never have to defend yourself and, therefore, no on should have the option to do so?
Or, do you believe that you are physically capable of defending yourself against any threats and too bad for those who can't?
Perhaps in my personal case that I cited I should have just minded my own business and let that woman take a beating or get killed. Then again, maybe you believe she deserved her beating.
People use guns every day to defend themselves. People also use guns for a lot of other legitimate and perfectly legal reasons, every day.
Most of those "innocent" people losing their lives every day to "gun violence" are choosing to end their own lives. Many of the other "innocents" are involved in criminal activity.
Why is it when guns are involved it's labeled as "gun violence" instead of violence? Why isn't the movement against violence rather than guns?
When it came to drunk driving we didn't look to ban automobiles or alcohol, we looked to modify behavior.
When it comes to violence we look to ban the object used rather than the behavior. Banning the object used only affects the law-abiding, the very people who aren't out their with violent behavior to begin with. In your world you would prevent those innocent, law-abiding people from defending themselves.
What moral right do you have to prevent people from defending themselves or dictating the manner in which they should defend themselves?
Interesting comment. The day before this incident a man my age was killed by a single punch to the head in a "knock out game." Are you suggesting that the proper action would have been to wait to see if I survived a physical assault?
Most FFL licensees will conduct a transfer between buyer and seller for a minimal fee. I've seen anywhere from $0 for regular customers up to about $50 with most in the $20-$30 range.
However, the concern about universal background checks had nothing to do with background checks. The legislation that was introduced at the federal level removed significant protections for gun owners; protections that were created in 1986 in exchange for not allowing any more machine guns to be placed on the NFA register.
Universal background check legislation that has been set at the state level typically has horrific conditions placed on merely lending a firearm to a known friend or family member.
It would seem that the gun-control legislators who want to pass a universal background check can't help themselves and insist on eroding other rights associated with firearm acquisition and ownership.
A private background check system, on the other hand, may have been palatable to firearm owners. In this model one could determine if a purchaser was prohibited from purchasing a gun and if not one could be sold to that person without any record being kept.
Slashdot Mirror
I'm not sure how many ways I can answer this or how many citations I can provide. You want to go over the IG's report and create a counter argument, be my guest. I've provided an answer and citation for each and every question you've asked and you still seem to be lost in disbelief that Secretary Clinton actually did something wrong.
From two replies, and many more, ago:
In 2009, IRM introduced SMART throughout the Department, enabling employees to preserve a record copy of emails through their Department email accounts without having to print and file them. However, the Office of the Secretary elected not to use SMART to preserve emails, in part because of concerns that the system would allow overly broad access to sensitive materials. As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance.
The above came from the IG's report, which you either are ignoring or can't comprehend. In case of the latter, here's the explanation:
- The Department of State instituted a system called SMART that allows a copy of emails to be stored in compliance with National Archive's rules
- The Secretary's office chose "not to use SMART," "because of concerns that the system would allow overly broad access to sensitive materials."
In conclusion, the rest of the Department of State uses a system called SMART to be in compliance. The Secretary's office didn't want to use SMART. Therefore, since there was no other compliant system in place at State, the Secretary's Office had to print and file their emails to remain in compliance.
I've provided that answer multiple times and provided multiple links to the explanation. Have you bothered to read them?
I've also answered, multiple times, where to find the regulations. In fact, I provided what I thought was a helpful pointer to the IG's document that gives the statutes and regulations, along with a detailed history of their origin and interpretation by courts, the Federal Government and the Inspector General's office. Apparently, that still wasn't enough to satisfy your curiosity.
Do your own Google search and when you're ready to counter the IG's report with factual arguments rather than repeating the same questions over and over then you can get back to me.
Call the IG's office. It's not my interpretation, it's theirs. The Inspector General of the Department of State said, and I quote, "...As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance."
What about that statement is unclear to you?
What about that statement requires interpretation from me, whether my interpretation is right or wrong; printing and filing are and were the only legal option.
Help me understand how CC'ing, given the statement from State's IG, can in any way allow them to remain in "full compliance with existing FAM guidance." Explain how CC'ing is even a "possible step." The emails had to be printed and filed. They were not. Therefore, the Office of the Secretary was not in compliance with the Federal Records Act - according to the Inspector General.
You're disagreement isn't with me, it's with State's Inspector General. You keep saying I'm wrong in criticizing your solution. O.K., I think your solution is wonderful, fantastic and better than anything anyone else has ever considered. Now, explain to me how it comports with the requirements as outlined by the Inspector General.
I've not only answered these questions before but I provided links to the Inspector General's report. You want to go on and keep defending the indefensible, then go ahead. The links to the exact text of the laws is included in the IG's report. The IG gave a thorough explanation of the history of the legislation, the regulations and how Secretary Clinton failed to follow the law.
You want to armchair quarterback the IG's report then that's your business. But don't pretend to have a discussion or debate when you don't even bother read the fucking responses or citations you've been provided.
From a previous response I provided to you:
From the document, again:
In 2009, IRM introduced SMART throughout the Department, enabling employees to preserve a record copy of emails through their Department email accounts without having to print and file them. However, the Office of the Secretary elected not to use SMART to preserve emails, in part because of concerns that the system would allow overly broad access to sensitive materials. As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance.
The above comes from the first paragraph of page 8 of the IG's report.
The regulations under the Federal Records act allow 3 methods for storing email as a record. The State Department doesn't meet the requirements for one of them and the Office of the Secretary chose not to implement another one. That leaves a single, legal method for the Office of the Secretary of the Department of State: printing.
Regardless of the intermediate form, even if the Secretary's office met the requirements in order to use electronic storage of the emails, the method you describe in simply cc'ing someone does not satisfy the process requirements of the regulation. Nor does saying, "Hey, I sent it to someone else in State so, therefore, it's on the up-and-up as far as the Federal Records Act is concerned."
You may think it a simple technical matter to search email archives. It may or may not be depending on how State has implemented their email. It doesn't matter though because National Archives has established a procedure which must be followed and the Secretary's office did not follow the procedure.
I've worked for the federal government and I've sold product to the federal government. I know the documents I was required to sign and I sure as hell stayed on the right side of the law because of the language in those documents. I was reminded on almost every page that violation of the regulations could result in jail time. Secretary Clinton signed such papers when she became Secretary of State. I don't think it's too much to ask that her office follow the law as it relates to federal records.
Stop making this so fucking complicated.
This has nothing to do with SQL, or IT staff or techies or the internal workings of an email system.
Under the conditions under which the Office of the Secretary of State works there is precisely one acceptable and legal way to follow the law under the Federal Records Act: print and store the emails for transfer to the National Archives. She can print them or her subordinate can print them but printed they must be.
Some of the reasons for this are because of decisions made by past Secretaries of State and continued under Secretary Clinton's watch. This, by the way, will change for all federal agencies on January 1, 2017.
Your complex example is specifically prohibited for recordkeeping because of how the Office of the Secretary is managed - through no fault of Secretary Clinton. What is at fault is her failing to assure that her office executed the statutory requirements incumbent on all members of the cabinet.
You only want to fault her if it was a good statute. Thus far, there's no evidence that the rest of the federal government has any issue with following the law as it relates to record keeping so why should she be exempt?
You keep coming back to using your knowledge of how email systems work and how YOU would perform a search for records. You incorrectly presume that the email system is a valid recordkeeping system for federal records; it is not. It isn't for many reasons spelled out in the National Archives statutes and regulations that implement the Federal Record Keeping statute.
If the email system was a valid recordkeeping system, and if it was a single monolithic system, and if it was capable of never losing data and if it was easily searchable by subject then, just maybe, the National Archives would accept your method of keeping records. Since it isn't, they've chosen a method that differs from your theoretical approach on how it should work. I'm sorry to be the bearer of bad news.
The Federal Record Keeping statute was put in place so that historical records could be preserved until the end of the Republic, or, at least, until they no longer have significance. It was put in place long before emails or electronic recordkeeping systems existed. Email, through the end of this year anyway, is force-fitted into the existing structure.
She and her staff didn't follow the law. That's not my opinion but the opinion of the Inspector General of the Department of State. Go complain to the IG's office if you want an easier SQL implementation put in place.
The statute and regulations specifically made her responsible for assuring that the policies were implemented. This has nothing to do with the technician, IT or anything or anyone else.
Where did I get that copying and forwarding emails is specifically disallowed?
Previously quoted text from the document:
NARA regulations codified in 2009 also specified that agencies must not use an electronic mail system to store the recordkeeping copy of electronic mail messages identified as Federal records unless that system contains specific features.
The system used by State does not contain those features. Therefore, the use of an email system to store the records is specifically disallowed.
Secondly, the forwarding that is allowed is only in conjunction with forwarding to the official email account of the employee (not other employees) when the Capstone system is being used.
From the linked document:
In 2004, NARA issued a bulletin noting that officials and employees "must know how to ensure that records are incorporated into files or electronic recordkeeping systems, especially records that were generated electronically on personal computers."
There were three recordkeeping systems that were an option for emails. Copying and forwarding is not one of them. Therefore, copying and forwarding are specifically prohibited.
Here's more from the linked document:
Since 1995, the FAM has instructed employees, "until technology allowing archival capabilities for long-term electronic storage and retrieval of E-mail messages is available and installed," emails warranting preservation as records must be printed out and filed with related Department records.
In no case is it considered preservation of records to copy or forward an email to another employee of the Department.
From the document, again:
In 2009, IRM introduced SMART throughout the Department, enabling employees to preserve a record copy of emails through their Department email accounts without having to print and file them. However, the Office of the Secretary elected not to use SMART to preserve emails, in part because of concerns that the system would allow overly broad access to sensitive materials. As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance.
You seem to be hung up on how you would technically implement a search system to find emails rather than on what the National Archives under the Federal Recordkeeping act requires of all federal employees. Secretary Clinton was specifically charged with assuring compliance within the Department of State. Maybe her failure to assure compliance is the reason State is being ripped apart in the courts in their active FOIA lawsuits. The IG's report doesn't blame technicians or miscommunication between management and IT; it blames the Secretary and her staff for doing things they were prohibited from doing and failing to do things they were required to do under statute.
I'm not interested in general "judgement" issues in this particular thread, I want to know the exact policies that were alleged violated and see the policy text for it. I want to nerdal around in the details, in terms of policy text and technology.
I suggest reading the Inspector General's report, specifically, page 7.
At the Department, compliance with this regulation and preservation of emails that constitute Federal records can be accomplished in one of three ways: print and file; incorporation into the State Messaging and Archival Retrieval Toolset (SMART); or the use of the NARA-approved Capstone program for capturing the emails of designated senior officials.
Copying or forwarding an email to someone else in the State Department is not one of the choices under the regulations that have been in effect since 1995.
In, fact, later on that page:
NARA regulations codified in 2009 also specified that agencies must not use an electronic mail system to store the recordkeeping copy of electronic mail messages identified as Federal records unless that system contains specific features. However, according to the Department, its technology has "lagged behind" this mandate.
The regulation referenced here is 36 C.F.R. Section 1236.22 (2009) and states that for records to be stored in an electronic recordkeeping system, that system must have the following functions:
(1) Declare records
(2) Capture records
(3) Organize records
(4) Maintain records security
(5) Manage access and retrieval
(6) Preserve records
The report then goes on to say that agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.
Further, the report states:
However, forwarding to or copying an employee's official email account alone is not sufficient to fully meet records management requirements unless an employee's email is being captured under the Capstone approach. If such an email qualifies as a record, employees are still responsible for preserving it in an appropriate agency recordkeeping system, such as through the use of SMART or printing and filing.
Bottom line:
- The employee is responsible for preserving records
- This isn't about making sure an email is kept on a system somewhere; the requirement is related to preservation of Federal records in a specific manner
- Copying and forwarding emails is specifically disallowed
It makes it a lot less searchable when sent outside the State Department.
How do you suppose a search will work for emails the Secretary sent outside the State Department?
The claim that copying people in the State Department on an email makes that email just as searchable as searching her email account is incredulous.
You are correct that personal emails are not covered by the archive rules. The issue is that she put her personal privacy above her statutory duties as Secretary.
Here's the National Archives transfer requirements, from 2002, for e-mail messages with attachments:
The practical issue is that an individual's emails must be archived in such a way that they can be organized and searched as a "body of records."
The example given for labeling a body of records is, "the e-mail records of the Deputy Secretary from the past fiscal year."
If someone want's to know what the Secretary of State said about a certain subject then they need to search the emails the secretary sent. The way Secretary Clinton performed cc/forwarding of emails then all emails of anyone to whom she sent an email would have to be searched.
It is the responsibility of the head of each Federal agency to make and preserve records including, "effective controls over the creation and over the maintenance and use of records in the conduct of current business." It's hard to see how failing to keep as a record the emails one sent and relying on the addressees to retain those records meets the standard the National Archives has set.
Secretary Clinton said she didn't want anyone to be able to search or examine her personal emails. The system she deployed made it so no one could search her official emails either.
If the minimum wage had been indexed to inflation, since its introduction, it would be $4.13 per hour today.
Here's an interactive chart of the minimum wage: Minimum wage since 1938.
The U.S. Supreme Court ruling in Quill Corp. v. North Dakota had nothing to do with the difficulty of computing sales taxes across multiple jurisdictions and everything to do with the Commerce Clause of the Constitution of the United States.
Some call the application of the Commerce Clause in this matter the "negative" or "dormant" Commerce Clause because it not only grants a specific power to the Congress but also prohibits certain actions by the states.
From the ruling in Quill:
...the Commerce Clause is more than an affirmative grant of power; it has a negative sweep as well. The clause, in Justice Stone's phrasing, "by its own force" prohibits certain state actions that interfere with interstate commerce."
One of those prohibited actions, according to Quill, is the forced collection of state sales taxes by sellers who have no nexus with the state.
This can be resolved rather simply; Congress can pass a law requiring the collection of those sales taxes.
It can also be resolved in a more complex manner; South Dakota can convince the U.S. Supreme Court to overturn or modify its earlier decision in Quill.
Regarding your comment on public services and the requirement of taxation: you're right, the internet doesn't change things. Long before the internet, most, if not all, states that have a sales tax also implemented a use tax that requires the purchasers of products where no sales tax was collected to pay an equivalent amount in a use tax. The taxes are already required under state law but, for the most part, the users of those public services are tax cheats who aren't paying their taxes.
What South Dakota's argument really comes down to is this: we know our citizens are cheating on their taxes and we want you, out of state business, to do our dirty work for us and enforce the collection of those taxes. Oh, by the way, we'll also be auditing your books to be sure you're doing the job properly so you better bone up on our laws and the laws of all other tax jurisdictions as it relates to collection and reporting of taxes.
Here's the problem they want to solve:
If a device is thought to contain evidence and a judge is convinced to issue a warrant, which, admittedly isn't necessarily a high bar, then the only judge that can issue a warrant today is a judge with jurisdiction over whatever geographic area in which the device is located. If the location of the device is unknown then no judge can issue a warrant.
If the device is going to be physically seized then the location will, ultimately, need to be known.
However, if the device is going to be accessed remotely then the location doesn't need to be known but a warrant is still needed.
I do see a bigger problem if the device is located outside the jurisdiction of the United States. What is the issue of a U.S. judge issuing a warrant that gathers information from a device located in Germany; especially if access to that data violates German law?
So, what's the balance? If the location of the device is unknown does that mean that no judge may ever issue a warrant to gather information? Or, does hiding a device open the device to warrants from any jurisdiction?
"search or seize an electronic device if the target is using anonymity software like Tor"
That might be what the article said but that's not what the Supreme Court said in its letter to Congress and the President.
The Supreme Court said:
(b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:
* * * * *
(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:
(A) the district where the media or information is located has been concealed through technological means;
The change here is that a magistrate can now issue a warrant to remotely access or size electronic information outside their district if the location of that equipment is concealed. What's changed is that a magistrate can now issue a warrant for something outside their district rather than only for devices within their district; but only if the location of the device is concealed.
"de-regulation?"
Economically significant regulatory rules are those that, among other things, "Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities..." (Executive Order 12866)
Clinton issued a total of 361 economically significant rules and Bush issued 358. As of the end of January 2016, Obama had 393 with another 47 on the drawing board (Obama's Midnight).
Obama has been issuing 55 economically significant regulations per year of his administration. Clinton's and Bush's record aren't much better. Over-regulation is a more likely culprit or reduced productivity.
On your other points, I can't recall how unions have contributed to productivity nor how greed necessarily decreases productivity.
In the U.S. they need a warrant whether the phone is locked or not:
U.S. Supreme Court Ruling in Riley v. California
The TSA ended the managed inclusion program for which this app was built and deployed.
They ended it when a notorious felonwas allowed to go through the pre-check line.
It's called cascading inflation. If you raise everyone's wages at the same time then you haven't increased the value of the unit of pay and haven't improved anyone's lives. On the other hand, you can't manipulate one part of the market, such as forcing an increase in one segment, without having an affect on another.
An employer needs to get a certain value from their employee. A minimum wage law essentially states that it is illegal to value the productivity of a given employee below a defined level.
Let's assume that a market values programmers at $100,000/year. Your employer needs 2 programmers and the market says the value of those programming positions is $200,000/year and that market value also represents the utility value to the employer. The employer will go and hire 2 programmers for a total of $200,000/year. Now the government decides to step in and say it's illegal to hire anyone for less than $200,000/year. The employer still needs 2 programmers but the market and utility value of those programmers doesn't justify $400,000/year. I'm guessing that the 2 programmers that are needed won't be hired. Perhaps the employer will hire 1 programmer and pay overtime to get their true cost closer to the utility value of the task. Perhaps they will go to a different market via outsourcing or automate the procedure. The incentive is for the employer to find another solution to their labor unit cost that allows them to stay competitive in the market.
Let's take that down to the minimum-wage hamburger flipper. The easiest way to eliminate that job is to do what some fast food chains have already done to improve food safety - pre-cook the burgers in a central factory and turn the three or four former hamburger flippers into 1 or 2 microwave button pushers.
You can't push one part of the market without expecting it to affect another area.
There's another reason it hurts the lowest-income people the hardest; it makes the lower-value jobs more attractive to the higher-value employees. Let's say that hamburger flipping carries a market value of $5/hour but minimum wage pushes the price in the market paid to $10/hour. There are $10/hour valued workers who perform more difficult or dangerous jobs for that $10/hour. If the employer is forced to hire someone for $10/hour why wouldn't they hire the $10/hour valued worker who provides more value per unit of cost. If the $10/hour worker can work an easier or safer job for the same pay then why wouldn't they take that job. What happens to the $5/hour valued employee?
Of course, you may argue that if the $5/hour worker is being paid $10/hour then that will cause the $10/hour valued employee to be paid $15/hour. I refer you to my first point that raising everyone's pay increases the value of no one's pay.
Here is the section from the Constitution:
"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."
It is the president that gets the "shall", not the Senate. The president shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court.
The President "with the advice and consent of the Senate" shall appoint. The President needs the Senate's consent. The Senate has no obligation anywhere in that language to vote on anything. They have not given their consent. How the Senate withholds their consent is up to them and not holding a vote is withholding their consent.
The Congress is a co-equal arm of the government and is not subservient to the Presidency. From Article 1, Section 5, "Each House may determine the Rules of its Proceedings..."
It is up to the Senate to determine how it conducts its business.
Perhaps if the President had actually sought the advice of the Senate then we would have had a nominee that could have satisfied both.
It may not be polite, it may not be wise and it may not be to your liking but the Senate has withheld their consent. You misquote the document and then argue that your misquote is proof that the Senate must take a vote. No vote is required and I invite you to, correctly, quote any part of the Constitution that requires the Senate take a vote.
The other Secretaries of State didn't need to release emails because the State Department already had them.
She was trying to escape FOIA requests and got caught with other crap as well. She was also skirting federal records keeping laws.
What other Secretary of State kept their own personal email server and then, only after being ordered to do so, decided which emails were actually government records that she should then return to the agency for which she was employed.
Congressional inaction is a valid prerogative of the body.
Congress has the power to declare war. While the President is the commander in chief he is also sworn to faithfully execute the law.
If Congress declares war, then passes a law ordering the President to act and the President fails to act then Congress can impeach him. There is a very clear definition of the actions that Congress can take if a President refuses to perform his duties.
Congressional inaction is a fulfillment of their duty. They can use any of their duties to refuse a presidential nomination. Perhaps the President should actually seek Congressional advice before nominating someone if he wants his nominee to be approved.
I've shown the balance of power that would allow Congress to override the President's refusal to defend the country. Can you show Presidential power to override Congressional inaction? It will be difficult because that's how the system was designed to function whether you like the outcome or not.
Your mistaken belief that Congressional inaction is failing to follow through on their job would only make sense if the Executive branch was higher than the Legislative. They are co-equal branches of government. The President can no more set the agenda of the legislative branch than he can convince you or I to jump off a bridge. The system is purposefully designed for leadership and compromise. If neither side will compromise then we are at stalemate or gridlock; an outcome that is purposefully designed into the system.
There is no constitutional duty to for the Senate to act either way regarding the President's nominee. In fact, speaking constitutionally, Congress could, tomorrow, set the number of justices at 8.
Jonathan Adler, in The Volokh Conspiracy discusses this very issue.
The President nominates, with the advice AND consent of the Senate someone to be a justice. The Senate can then consent, not consent or decline to bring the matter to a vote. The Senate sets their rules and determines how Senate business is conducted. Those calling for hearings in order to fulfill constitutional duties are even more off-base; there were no hearings for Supreme Court justices before 1916.
The President and Congress are co-equal branches of the government. It's not too far fetched an argument that the voters knew exactly what they were doing when they gave the presidency to the Democrats and Congress to the Republicans. There might be perfectly rational reasons for the voters to impose forced cooperation or gridlock rather than a single party running away with their own interests.
There may be policy and political reasons that the Senate should act but there are no constitutional duties imposed on the Senate to act.
Most of the world got by just fine yesterday without fire extinguishers, paramedics, police officers, safety belts, etc. Do you actually have a cogent point? Should people be reduced to being victimized by those physically stronger? Should people just take their beat-downs and accept it?
Do you just assume that you'll never have to defend yourself and, therefore, no on should have the option to do so?
Or, do you believe that you are physically capable of defending yourself against any threats and too bad for those who can't?
Perhaps in my personal case that I cited I should have just minded my own business and let that woman take a beating or get killed. Then again, maybe you believe she deserved her beating.
People use guns every day to defend themselves. People also use guns for a lot of other legitimate and perfectly legal reasons, every day.
Most of those "innocent" people losing their lives every day to "gun violence" are choosing to end their own lives. Many of the other "innocents" are involved in criminal activity.
Why is it when guns are involved it's labeled as "gun violence" instead of violence? Why isn't the movement against violence rather than guns?
When it came to drunk driving we didn't look to ban automobiles or alcohol, we looked to modify behavior.
When it comes to violence we look to ban the object used rather than the behavior. Banning the object used only affects the law-abiding, the very people who aren't out their with violent behavior to begin with. In your world you would prevent those innocent, law-abiding people from defending themselves.
What moral right do you have to prevent people from defending themselves or dictating the manner in which they should defend themselves?
Interesting comment. The day before this incident a man my age was killed by a single punch to the head in a "knock out game." Are you suggesting that the proper action would have been to wait to see if I survived a physical assault?
Most FFL licensees will conduct a transfer between buyer and seller for a minimal fee. I've seen anywhere from $0 for regular customers up to about $50 with most in the $20-$30 range.
However, the concern about universal background checks had nothing to do with background checks. The legislation that was introduced at the federal level removed significant protections for gun owners; protections that were created in 1986 in exchange for not allowing any more machine guns to be placed on the NFA register.
Universal background check legislation that has been set at the state level typically has horrific conditions placed on merely lending a firearm to a known friend or family member.
It would seem that the gun-control legislators who want to pass a universal background check can't help themselves and insist on eroding other rights associated with firearm acquisition and ownership.
A private background check system, on the other hand, may have been palatable to firearm owners. In this model one could determine if a purchaser was prohibited from purchasing a gun and if not one could be sold to that person without any record being kept.