Hillary Clinton on Email in 2011: 'A Lot of Security Restraints on What I Can and Can’t Do'

    Hillary Clinton is under increasing pressure for her exclusive use of a personal email address during her four years as secretary of state. In October 2011, Mrs. Clinton was interviewed by Savannah Guthrie of NBC's Today Show, and Guthrie asked about her personal email address. While Mrs. Clinton did not directly answer the question, she did acknowledge that she had "a lot of security restraints on what I can and can’t do":

QUESTION: You mentioned technology. I have to wonder, do you – how many people have your personal email address? Do you use your BlackBerry a lot? Do you like technology? 

SECRETARY CLINTON: I do. 

QUESTION: Are you good at it? 

SECRETARY CLINTON: I’m okay. For someone of my generation, I’m okay. But no, I have a lot of security restraints on what I can and can’t do. But I do try to stay in touch as much as possible, and electronically is by far the easiest way to do that.
QUESTION: Are you a BlackBerry addict? 

SECRETARY CLINTON: I’m an aficionado. I’m not sure about the addict part.

     Mrs. Clinton had made remarks in the past regarding the importance of security when it came to email within the state department. In June 2011, there were reports of Chinese hackers breaking into Google email accounts of U.S. officials, and then-Secretary Clinton was asked about this at a press availability:

QUESTION: Thank you, Madam Secretary. Google is reporting about Chinese hacking into the email accounts of U.S. officials. Have you talked to the Chinese about this? Do you have any evidence that sensitive information was compromised, and what are you doing to mitigate any damages?... 

SECRETARY CLINTON: Well, Elise, first with respect to the recent announcement by Google, we are obviously very concerned about Google’s announcement regarding a campaign that the company believes originated in China to collect the passwords of Google email account holders. Google informed the State Department of this situation yesterday in advance of its public announcement. These allegations are very serious. We take them seriously, we’re looking into them, and because this will be an ongoing investigation, I would refer you to first Google for any details that they are able to share at this time and to the FBI, which will be conducting the investigation. 

One of the reasons why we’ve created the first-ever cyber security coordinator position in the State Department, filled by Chris Painter, a very experienced official in this area who was one of the leaders in helping to draft our governmental framework for cyber policy, is because we know this is going to be a continuing problem. And therefore we want to be as prepared as possible to deal with these matters when they do come to our attention.

    On the same day, the issue was raised with state's deputy spokesperson Mark Toner at the daily press briefing. Toner said that state department employees were not prohibited from using private email accounts, but that staff was told during training that there's "no assumption of confidentiality in any kind of personal email account and that you should obviously act accordingly."

Note: A version of this post first appeared at The Weekly Standard.

Jay Carney, 2013: No Decisions About Bergdahl-Detainee Deal 'Without Consulting With Congress'

    Among the questions being raised about this weekend's exchange of  Sgt. Bowe Bergdahl for five top Taliban commanders held at Guantanamo is why Congress was not informed of the move ahead of time.  Defense Secretary Chuck Hagel said on Meet the Press on Sunday that concerns over the health and perhaps even the survival of Bergdahl required secrecy, telling reporters, "We couldn't afford any leaks anywhere" because the deal was "essentially an operation to save the life of Sgt. Bergdahl."
    But just under a year ago in June 2013, then-Press Secretary Jay Carney was unequivocal in his response to a reporter's questions about this very deal, saying, "[W]e would not make any decisions about transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law."
    Here is the full exchange from the White House transcript [emphasis added]:

Q    Jay, going to back to Afghanistan, the Taliban has offered to release Bowe Bergdahl in exchange for five members of the Taliban who are currently being held at Guantanamo Bay.  Is this something that the administration is considering?  Is this something that the President would agree to? 

MR. CARNEY:  What I can tell you is that the main dialogue that we support is the dialogue between Afghans -- between the Taliban and the Afghan government.  However, there are some issues that we would like to discuss with the Taliban directly, and this includes the safe return of Sergeant Bergdahl, who has been gone for far too long. 

We continue to call for and work toward his safe and immediate release.  We cannot discuss all the details of our efforts, but there should be no doubt that on a daily basis we are continuing to pursue -- using our military, intelligence and diplomatic tools -- the effort to return him home safely.  And our hearts are with the Bergdahl family. 

With regard to the transfer of Taliban detainees from Guantanamo Bay, we have made -- the United States has not made the decision to do that, though we do expect the Taliban to raise this issue in our discussion, if and when those discussions happen. 

As we have long said, however, we would not make any decisions about transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law.

    President Obama announced on Friday, the day before the Bergdahl-detainee exchange, that Carney was leaving his position as press secretary.


Note: A version of this post first appeared at The Weekly Standard.

IRS Not Following Law in Penalizing Excessive Refunds and Tax Credits

    The Treasury Inspector General for Tax Administration (TIGTA) reported last week that in 2011, the IRS paid out $3.6 billion in fraudulent refunds on tax returns filed by identity thieves.  Even that amount was an improvement over the previous year when the total fraud was $5.2 billion.  However, on Tuesday, TIGTA released a new report that found that though the IRS is making some progress against fraud, it is not using all available tools to prevent erroneous refunds and improper tax credits.
    In 2007, the Small Business and Work Opportunity Tax Act amended the IRS code to increase the agency's ability to penalize taxpayers who claim excessive tax credits or refunds.  A recent audit, however, found that the IRS has not properly implemented the law, and is following up in only a fraction of the cases where action may be warranted [emphasis added]:

TIGTA found that the IRS incorrectly interpreted the erroneous refund penalty law, which significantly limited the types of erroneous tax refund or credit claims to which the penalty would apply. The IRS assessed only 84 erroneous refund penalties totaling $1.9 million between May 2007 and May 2012... 

[I]n the year after the IRS revised its interpretation of the law (June 3, 2012, through May 25, 2013), there were 709,123 individual tax credits disallowed by Campus Operations for which the IRS could have potentially assessed erroneous refund penalties totaling more than $1.5 billion.

    The inspector general found no legitimate reason for the IRS's neglect of the law:

“I am troubled that even though the IRS has revised its interpretation of this law, it has still failed to establish processes to assess penalties on the majority of disallowed tax credit claims,” said J. Russell George, Treasury Inspector General for Tax Administration. “Taxpayers who seek refunds or credit claims that have no reasonable basis in law must be penalized, for they create unnecessary burden on both the IRS and the American people by straining resources and impeding tax administration.”

    In response to the findings, IRS management "raised concerns about the costs and benefits of establishing processes and procedures... to assess erroneous refund penalties", but did not support these concerns with documentation or analysis.


Note: A version of this article first appeared at The Weekly Standard.

Obamacare Pledge: Info on Applications 'Won’t Be Used For Immigration Enforcement Purposes'

    Beginning with a speech last Thursday, President Obama is seeking to rejuvenate his administration's push to reform immigration laws and perhaps draw some attention away from the Obamacare launch debacle that has been dominating the headlines for much of October.  The day following the speech, a new topic appeared on the Healthcare.gov website entitled "What do immigrant families need to know about the Marketplace?"  While a previous entry listed the various immigration statuses that qualified for Marketplace coverage, the new entry is an extended discussion of the questions immigrants, regardless of status, might have about the insurance exchanges.  Among the subtopics discussed are: "Lawfully present immigrants and private insurance," "Immigrant access to Medicaid and CHIP," and "Disclosure of immigration status."
    Under "Disclosure of immigration status," the site goes to great lengths to explain that Marketplaces, whether federal or state, are not permitted to ask for the immigration status of family members who are not applying for coverage or benefits.  "States can’t deny benefits because the applicant doesn’t provide the SSNs of people who aren’t applicants for benefits or recipients of Medicaid or CHIP benefits, or those not required to provide SSNs," the site explains.  After describing how government agencies, including marketplaces, use the federal "data hub" to verify application information, the site notes that "[p]eople who aren’t seeking coverage for themselves won’t be asked about their immigration status."  If an application or the subsequent verification process does reveal problems with immigration status, the site goes on to assure applicants that "[i]nformation provided by applicants or beneficiaries won’t be used for immigration enforcement purposes."
    Elsewhere on the site, users are told that the "U.S. Department of Homeland Security [DHS] may verify your immigration status and/or naturalized citizenship status." But the new statement above suggests that if DHS is unable to verify legal status or the process reveals a possible violation, no action will be taken relative to immigration laws.  However, any false statements on applications may be pursued by law enforcement according to the individual privacy statement on the Healthcare.gov site, which includes the following caution:

If you don’t provide correct information on this form or knowingly and willfully provide false or fraudulent information, you may be subject to a penalty and other law enforcement action.

    As THE WEEKLY STANDARD reported early in October, the privacy policies of the exchanges for at least some states (Maryland, for one) include statements that they "may share information provided in your application with the appropriate authorities for law enforcement and audit activities."  But based on the above language at the Healthcare.gov site, possible violations of immigration laws will not trigger the "law enforcement action" threatened in other cases.


Note: A version of this article first appeared at The Weekly Standard.

Audit: Some IRS Employees Still Using Outlawed ‘Illegal Tax Protester’ Designation

    Despite a law passed 15 years ago, some Internal Revenue Service employees continue to use the designation "Illegal Tax Protester" and other similar designations in case narratives according to an audit just released by TIGTA (Treasury Inspector General for Tax Administration.)  While the IRS has not reintroduced an actual code for such designations, the audit found out of 257 million records, there were

54 instances in which Enforcement and Deputy Commissioner for 45 employees referred to taxpayers as  Operations Support.  “Tax Protester,” “Constitutionally Challenged,” or other similar designations.

    A similar audit in 2010 found 164 such instances, so the occurrence of such designations continues to drop.  Congress enacted to law to prevent taxpayers from being stigmatized even after they comply with IRS regulations, and to prevent future bias by IRS employees towards prior offenders.  The audit noted that

[t]he IRS has long disagreed with our determination that in order to comply with RRA 98 § 3707, IRS employees should not designate taxpayers as Illegal Tax Protesters or similar designations in case histories.

    The decrease in such occurrences, however,  indicates the IRS is attempting to comply, if somewhat reluctantly.


Note: A version of this article first appeared at The Weekly Standard.

Sequestration: Federal Court-Appointed Attorneys Face $15/Hour Cut

    If last week's announcement by the IRS that corporate tax credits were the latest victim of sequestration didn't garner much sympathy, then an even smaller violin might be needed for this week's victim: lawyers.  As of September 1, court-appointed panel attorneys for the federal defender program will be hit with a $15/hour reduction in compensation.  The following announcement appeared Monday on the United States Courts website:

In an emergency move to preserve Federal Defender staffing in FY 2014, the Executive Committee of the Judicial Conference of the United States has reduced hourly rates for court-appointed panel attorneys by $15 an hour. Payments to panel attorneys for up to four weeks of work done in FY 2014 will be deferred to FY 2015. An Aug. 16 letter described the moves as temporary and undesirable, but said they "are necessary to avoid permanent damage to the federal defender program."

    In the letter explaining the decision, the Executive Committee of the Judicial Conference raised concerns that the move could "impact the delivery of justice":

In taking these measures, the Executive Committee shares your view that reducing panel attorney compensation rates, deferring panel attorney payments, and limiting federal defender organization funding to the maintenance of current on-board staff are undesirable, and may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program.  Measures of this kind, however, are not sustainable in the long term, and certainly would not be required if the judiciary were receiving an appropriate level of funding in this account.  The Committee nonetheless remains committed to the goal of ensuring that the defender program can operate within its annual appropriations.  With that in mind, we will continue to monitor developments and intend to revisit the matter when, in our opinion, events warrant.

    Currently, the maximum hourly rate in such cases is $125.  The $15/hour cut reduces the maximum back to 2010 levels.  The maximum rate in capital cases is $178/hour.


Note: A version of this article first appeared at The Weekly Standard.

IRS's National Taxpayer Advocate: Exempt Organizations Division May Have Violated the Law

    In a mid-year report to Congress, National Taxpayer Advocate Nina E. Olson weighed in on the controversy surrounding the IRS's review of exempt organization (EO) applications.  The Taxpayer Advocate Service (TAS) "is an independent organization within the IRS and helps taxpayers resolve problems with the IRS and recommend changes that will prevent the problems."  Although Olson noted that "the Advocate’s office does not have investigative authority and did not seek to duplicate other ongoing investigations," the IRS came under harsh criticism for its vague policies and lack of transparency, and even possible violation of the law.

The EO Function Did Not Post Its Procedures on the Internet, Potentially Violating the Law and Contributing to the Problem. The IRS is required to post on its website all “instructions to staff that affect a member of the public,” unless an exemption applies.  Even if an exemption applies, IRS functions should clear most guidance internally with affected program owners and “specialized reviewers” such as TAS.  EO did not clear with TAS or post on the Internet, even in redacted form, relevant training materials, form letters used to request additional information, the screening checksheet used by EO employees in the determinations process, and other key documents.  EO’s failure to clear its procedures with TAS and other stakeholders bypassed an important safeguard of taxpayer rights.

Had these documents been vetted by TAS, TAS would have had an opportunity to raise concerns before implementation. Had these documents been posted on the Internet, members of the public would have had access to them, providing greater transparency and enabling them to raise concerns about improper practices. Key EO documents still are not posted to the Internet, and TAS has not been able to locate them on the IRS intranet. The Tax Exempt and Government Entities Division (TE/GE), of which EO is a part, has agreed to share its guidance with TAS. The Advocate recommends that the IRS adopt more expansive disclosure policies both in TE/GE and throughout the IRS.

    Among the other problems cited by the report:

• The IRS’s Processing of Section 501(c)(4) Applications Violated Fundamental Taxpayer Rights. 
• Applicants for Exempt Status (and Other Taxpayers) Have No Easily Available Remedy for the Violation of Their Rights. 
• Congress No Longer Holds Joint Annual Oversight Hearings to Review IRS Challenges and Performance.
• EO Management Did Not Maintain an Adequate Inventory Management System.  
• EO Management Did Not Ensure that Requests for Guidance Received a Timely Response.
• EO Executives Resisted TAS’s Authority to Order Expedited Processing of Tax-Exemption Applications, and Thereby Isolated EO from TAS.
• EO Employees Did Not Refer Over-Aged Cases to TAS.
• EO Employees Did Not Report the Systemic Delays in EO Processing to TAS.  

Note: A version of this article first appeared at The Weekly Standard.