Hillary Clinton and Schrödinger’s Cat: What Does It Mean to ‘Retroactively Classify’?

With the race for the Republican presidential nomination consumed by Donald Trump’s antics, Hillary Clinton’s most serious Democratic opponent at this stage of the 2016 presidential contest is her own behavior as secretary of state: Did she or didn’t she mishandle classified information during her time as America’s top diplomat?

Late Thursday, the New York Times reported what could be a game-changing development in the unfolding scandal that centers on an email system that was kept separate from State Department servers. Two inspectors general have recommended the Justice Department open a criminal inquiry to examine whether Clinton’s use of that email breached laws governing the handling of sensitive information. The Justice Department did not respond to questions Friday from Foreign Policy over how it plans to respond to the recommendation.

The Clinton camp is denying the allegations and is using a rather intricate, legalistic argument to do so. Throughout the scandal, Clinton has maintained that she never sent classified information over her personal email system, which security experts believe could have been easily compromised by hackers or foreign intelligence agencies. But as the State Department has begun releasing her emails, information in some of those messages has been classified and redacted.

How, then, does this square with Clinton’s public statements that she never sent classified information over the email system? “She followed appropriate practices in dealing with classified materials. As has been reported on multiple occasions, any released emails deemed classified by the administration have been done so after the fact, and not at the time they were transmitted,” Clinton spokesman Nick Merrill said in a statement posted on Twitter. Merrill did not respond to emailed questions from Foreign Policy.

As the New York Times puts it, the emails released by the State Department have in part been “retroactively classified,” raising the question of what it means for something to be classified in the first place. Let’s say a hypothetical piece of obviously classified information — that the United States has a juicy piece of intelligence, say — is included in an email that isn’t marked as classified. Does that mean that the information itself is not classified?

“There is a Schrödinger’s Cat aspect to classification. In other words, there is a lot of government information that is neither classified nor unclassified until somebody actually looks at it and makes a determination one way or another,” Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, wrote in an email to FP. He was referring to the famous quantum physics thought experiment in which a cat can be simultaneously dead and alive. “The argument seems to be that [Clinton] did not knowingly or negligently mishandle classified information.”

Whether that narrow defense of her use of a private email system holds up in coming months will be a key test of whether this scandal continues to roil her presidential bid. It also, of course, gives new lift to years of criticism that the U.S. government routinely over-classifies even benign information.

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