The Independent View: New York Times Sues for Defense Secretary Ash Carter's Emails

Attorneys for The New York Times and the Justice Department are due in Federal court Tuesday as part of a lawsuit seeking to force the Pentagon to release full copies of more than a thousand pages of work-related emails Defense Secretary Ash Carter sent and received from his Personal Account.

The lawsuit, filed in May but not previously reported, is the latest wrinkle in the ongoing saga over the use of personal email by top Government officials. It’s an issue that has dogged Clinton’s Presidential campaign and led earlier this month to a stinging rebuke from the FBI for the former Secretary of State, but no criminal charges.

Carter’s case has received little publicity in comparison to Clinton’s, but it also raises questions about the security procedures in place at the top rungs of the Executive branch and whether officials are attempting to use their personal email accounts to skirt the Freedom of Information Act (FOIA), the press and the public's main tool for forcing the release of Government records short of the courts.

Carter, who became Pentagon Chief in February 2015, acknowledged in December he conducted official business on his personal email account during his first few months in office, in violation of Department rules. A spokesman for Carter, Peter Cook, told The Times at the time that the Defense Secretary had made “a mistake” but had since stopped using the personal account for Government business.

Several months later, in response to FOIA requests from The Times and other news outlets, the Pentagon released more than 1,300 pages of work-related emails to and from Carter’s personal account. But the emails, which mostly discuss routine Administrative issues, were heavily blacked out.

Now The Times, in its lawsuit, says many of those redactions were unwarranted and is challenging them in a District Court in New York, seeking to force the release of a new version of the emails without so much information left out.

The Pentagon cited several FOIA exemptions as reasons for its redactions, including "trade secrets," "privileged communications within or between agencies," and information that "if disclosed, would invade another individual's personal privacy." An attorney for the Times, David McCraw, said some of the cited exemptions appear to be reasonable, while others do not. “The exemptions have very specific requirements, and I don’t think these exemptions meet those requirements,” he said in an interview.

In a bare-bones response to the Times’s complaint, the Justice Department, which is representing the Defense Department in the case, argues that the Pentagon “exercised due diligence in processing plaintiffs’ FOIA requests.”

Both parties are due to appear on Tuesday at a Federal courthouse in New York for a pretrial conference.

One of the Justice Department lawyers who is defending the Pentagon, Louis Pellegrino, declined to discuss the case, referring POLITICO to the department’s public affairs office, which also declined to comment.

At the Pentagon, spokesman Gordon Trowbridge also declined to comment on the suit because the matter is in Litigation. But he did say there was no classified material in Carter’s personal emails. “Any review of material for FOIA release includes a thorough review for classified information,” Trowbridge explained. “As we said at the time of release, that review concluded that there was no classified information in the secretary’s emails.”

That’s in contrast to Clinton. Her use of personal email for Government business, FBI Director James Comey said, showed that she and her colleagues “were extremely careless in their handling of very sensitive, highly classified information.”

The attorney for The Times, McCraw, said Carter’s use of personal email raises two major issues. First, he said, there’s the question of whether security procedures were in place that would have prevented hacking. “Whether it’s classified or not, you would think that there should be a level of security,” McCraw said. Second, he said, there’s the question of whether personal email was being used to skirt the requirements of FOIA, which spells out which Government documents should be made available to the public. “If people are going to use their personal email accounts, they should not expect that to be a way to get around FOIA,” McCraw said.

In its complaint, The Times notes that it filed an Administrative appeal challenging the Pentagon’s use of certain FOIA exemptions to redact portions of Carter’s emails. The Pentagon, according to the complaint, failed to make a decision on the appeal and an addendum within the required 20 business days.

Ultimately, it could be up to a Federal judge to decide whether the Pentagon has to release full copies of the emails.

Meanwhile, in Washington, the watchdog group Campaign for Accountability is calling for the Pentagon's Inspector General (IG) to investigate Carter's use of personal email. "The use of personal email accounts to conduct agency business has emerged as a growing problem, especially by agency heads such as Secretary Carter,” the group’s Executive Director, Anne Weismann, said in an April letter to the Pentagon IG. “When such use occurs at an agency like DoD that deals routinely with classified information, the security risks are especially high."

Last week, the IG's office sent the group a letter saying it would not investigate the matter but the IG later said the letter had been sent in error and that no decision had been made about whether it will investigate Carter. “The IG has not closed this matter; rather, we are continuing to monitor the information requested from the Department of Defense by Congress,” said IG spokeswoman Bridget Serchak. The IG, she said, “will make a determination, based on that information, whether any further action from the IG is warranted regarding this matter.”

Carter’s heavily redacted emails include little discussion of National Security issues and mostly show “Washington insiders vouching for one another, wanting jobs for friends and [souvenir] challenge coins for their kids,” according to a reporter for Defense One who sifted through all 1,300-plus pages.

Geoff Morrell, the former Pentagon Press Secretary under Robert Gates and now a top Communications Executive at BP, wrote Carter to recommend people for jobs, according to Defense One. And Carter's Weapons Acquisition Chief, Frank Kendall, wrote to Carter saying he has "very little opportunity to communicate with you directly.” Carter, referring to Kendall as "Franco," wrote back: “Be glad you don’t hear from me more often – others do.”