Above the Law

Director of the FBI, James Comey, delivered an address in July regarding the investigation into Hillary Clinton’s use of private e-mail during her tenure as Secretary of State.  Now that the FBI has cleared her a second time days before the election- which isn’t all that surprising given her history of evading legal repercussion- I wanted to speak on this subject from the perspective of an intelligence professional that continues to serve the nation in such a capacity, while holding in a lot of animosity over it and how it has been handled publicly.

 

While you would be hard pressed to find anyone in the Intelligence Community (IC) that doesn’t look at Director Comey as a true professional, many of us are shaking our heads on this one.  Contrary to the public’s perception of what the IC is- that is, a bunch of Obama-loving spies- we’re actually quite the diverse group with what could best be described as a pro-American, libertarian-leaning slant.  You’ll find the occasional Clinton or Sanders bumper sticker in our parking lots, but this is exceedingly rare.  In discussions within offices (and I’ve worked in many offices and agencies thus far), libertarianism and republicanism are without question what dominate the workforce’s political ethic.

Those with security clearances that are celebrating the FBI’s decisions regarding Hillary, and trust me there are plenty if a Facebook news feed is considered a legitimate source, should probably have their own background investigations restarted.  If a top-of-the-totem-pole federal official can mishandle and transmit classified information without it being a big deal, I could only imagine what the like-minded within the Intelligence Community’s ranks are capable of.

First, I will discuss what Director Comey said in July and compare that to what Hillary Clinton did or said regarding her use of her private e-mail server.  I will argue that from the beginning of this, the national-level discussion on this matter has been misguided, incredibly flawed, and even a matter of tricky word usage.

A very important piece of Comey’s statement comes in the very beginning, wherein he outlines the “why” behind the FBI’s investigation, and the “what”- as in, “what question was the investigation meant to answer?”  He says:

“Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.”

This is an interesting sentence because it directly contradicts the reasoning behind the decision to not charge Hillary Clinton and those close to her with a crime.  There is significance in noting that the word “or” in between “a felony to mishandle classified information either intentionally” and “in a grossly negligent way” is indicative of two distinct ways in which Clinton could have been in violation of federal law, not one.  There are way more than two ways of course, but it is commonplace to see the two pieces linked when it reality they stand alone.

Comey’s words are a reference to the Espionage Act itself.  Most sections of the Act ends with the word “or”, which notes the various ways in which individuals can be in violation of it.  It is incredibly clear from the words of the Act that to be in violation of the Espionage Act at all, one need not be in violation of all of it.  This is where Comey leaves many of us completely baffled, as he begins his explanation of why charges against Hillary Clinton were not being brought.  He begins:

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

The immediate jump by Comey is to the concept of “intent”, which anyone with a clearance knows is simply not a requirement for prosecution of crimes that violate the Espionage Act.  We receive training on this annually, to the point of it being the butt of jokes within the Intelligence Community itself, and even the newest clearance holders are made aware of these distinctions from day one.  Historically, the intent piece has been used to make the differentiation between mishandling classified information and using that same information to aid a foreign power or undermine our own Intelligence apparatus and country.  It is this distinction that led agents tasked with investigating Soviet moles like Robert Hanssen and Aldrich Ames to dig deeper in order to witness actual exchanges of information between the moles themselves and Soviet intelligence officers despite existing compelling evidence that they were both removing classified information from secure facilities for the purpose of passing it to foreign intelligence agents.  There is significance in Comey referencing intent up front as there are myriad examples of intent being far from the only factor involved in the investigation of those who are suspected of being in violation of the Espionage Act.

Comey continues by detailing the manner in which Clinton et al. were in violation of mishandling classified information:

“…seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).”

Frankly, Comey could have stopped after the first sentence here and that would have been more than enough to charge Clinton with a crime.  Special Access Programs (SAP, for short) are the pinnacle of Top Secret, classified information.  Compartmentalization, which is basically the concept of partitioning operational knowledge between offices and individuals within the Intelligence Community and its agencies (despite all of these individuals sharing the same clearances), is a practice meant to keep sensitive information confined to a minimum amount of people.  It is a counter-espionage and counterintelligence tactic that limits the amount of people privy to particular data as a means of protecting said data and making it easier to pinpoint who might be responsible in the case of a leak or total compromise of it to foreign services.  SAP programs take this concept of compartmentalization and multiply the sensitive nature of classified information within such programs by a thousand.  SAP programs indicate classified information of the highest sensitivity and capturing even a fraction of that information is a priority of every capable foreign intelligence service that targets us, to include friendly ones (who target us all the same).  Alas, Hillary Clinton shared this kind of information via unsecured e-mail, and then some.

Upon these revelations, Hillary Clinton doubled-down on her defense that many of these e-mails were not “classified at the time”, but this brings up the wordplay piece of this puzzle that I previously alluded to.

See the following three, very different words that come into play here:  classified, classified, and classified.  “But you just wrote the same word three times, man- what point are you trying to make here?” would be the common response, and understandably so- the public simply lacks the perspective to understand that these are in fact three different words.  For that matter, they’re different concepts, and even different parts of speech.

The last one I threw in to enable people outside of the Intelligence Community to connect with something they are familiar with, even if they aren’t aware of it.  In Hollywood movies and television shows dealing with national security themes, it is not uncommon to see people acting as federal officials throw around folders and what not that are marked “classified” with red stamps (and for some reason, they’re always stamped in 45-degree angles and this bothers me).  The reality is that this kind of information does not exist in real life, and the stamping of things as “classified” also does not happen- at least not in such a manner.  I mention this piece of modern fiction- often used as a device that indicates something happening in a movie is important to a plot or part of some kind of lurid scheme (see the Bourne series)- to note that misconceptions about classified information by the public are natural.  These misunderstandings can happen because when it comes to classified information, those without clearances or access cannot know the truth about it, and much of what they think they know is based on information garnered from a movie screen.

Hillary Clinton knows this, and every word used in defense of her actions relied upon this to make people think that what she did was OK, or at worst an innocent and unfortunate mistake.

The other two words, classified and classified, represent two distinct things.  One, a past tense verb, indicates the process by which we as intelligence professionals go about ensuring information is kept in the right place, or shared with the right people.  It quite literally means “to classify”– the action of classifying sensitive material.  It is a direct definition of how we actually classify data, either by writing a classification with a pen should we be making notes regarding classified material (e.g., in a meeting) which renders those same notes as classified information, or by selecting classifications via a tool built into an e-mail program on our secure systems.  Regardless, the word requires an action; a movement; kinetic energy.

Nothing can ever be classified as “CLASSIFIED”- classified is not a classification.  The classifications are TOP SECRET, SECRET, CONFIDENTIAL, and UNCLASSIFIED.  Within those are subsets that further restrict or define who is able to see the material, or where it can go.  “Unclassified” is a classification too– therefore, a completely unclassified bit of information, that can feasibly be removed from a secure space and taken home should one choose to (these typically have nothing to do with intelligence information anyway) is an example of classified information.  That being said, there are subsets to unclassified information that render it unsuitable for public release or removal from a government system or an agency.  This is only meant to be taken as an example, but it is perfectly possible for Hillary Clinton to have exchanged unclassified information over her unsecured e-mail that would also render her in violation of law.  “Unclassified” doesn’t necessarily render information suitable for dissemination, nor open to removal from a secured facility.

And this where Clinton plays the word game.  When she defends herself, her reference to information being sent over her e-mail as “not being classified at the time” is meant to impress upon the public ear that her e-mails were in fact unclassified at the beginning, and were only “upgraded” to higher levels of classification during the investigation.  While this does at times happen within the intelligence community, such upgrades are typically done to already known, highly-sensitive material, and therefore those upgrades are usually Secret-to-Top Secret transitions, or additional handling measures being attached to each classification on their own (in essence, trimming the amount of people who are able to see the information).  It is a rarity that fully unclassified information- that is, the only information that Hillary Clinton would be allowed to transmit over any non-government, secure system- becomes secret or top secret information.  In the case of sharing details about personally identifiable information (names, offices, phone numbers, social security numbers, etc.), unclassified information sometimes becomes confidential.  James Comey clearly indicated that Clinton’s errors were most definitely not a matter of her supposed unclassified information later becoming confidential, however.

The last word, “classified” is a noun and has more or less been referenced here by me a few times by now.  It is a noun, and it is colloquially how we within the community refer to classified information.  We often refer to material that’s sensitive as a whole as “classified”, as in “I’m transporting classified to another agency today via pouch” though we wouldn’t normally say things like “pass the classified” or “can you please show me where you stored your classified?”.  For the most part, it’s a term inclusive to the IC, and if someone outside of the Community heard it being discussed in practice, it would likely result in confusion.  It is, alas, yet one more way in which we refer to classified information which enables us to see how language use has played a significant role in how Hillary Clinton has defended herself, and in some respects has also exonerated herself.

Despite the facts laid out by Director Comey, he cleared her with the following words:

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

Comey concedes that there are a number of factors when it comes to investigations such as these, but again injects the concept of intent.  Despite the numerous people who despise Hillary, and relish the notion of her possibly being indicted for all of this, I do not recall coming across a single person that thought she was carrying out this illicit e-mail activity with the intent of providing defense information to foreign intelligence services.  She might be criminal by her nature, but we also know she’s not stupid.  And it is that motivation- to provide sensitive material to a foreign power- that represents the only way that “intent” should have been considered during this investigation.

“But who are you to make such a judgment when a career FBI official said she was cleared?” is a common retort to my arguments and similar ones from others.  The simple answer to such a question would be that it doesn’t take a career FBI agent, or senior government official, to read English words and understand them all at once.  Further, with regard to Comey’s contention of there being a lack of precedent in espionage cases to draw examples from, that is wholly ridiculous and demonstrably false.  Every single investigation of a suspected, and ultimately caught spy represents such precedent.  Some, as I alluded to with the Bob Hanssen example, fully relied upon this distinction of “intent” to enable federal prosecutors to pursue possible death sentences as opposed to comparably gentle “mishandling of classified information” charges.  Comey’s explanation here defies reality, and is the basis for much of the bewilderment being expressed within Intelligence Community circles today with regard to this investigation.

The Espionage Act, though verbose, is quite clear and simple to understand.  Don’t take my word for it, decide for yourself.

18 U.S. Code § 793 – Gathering, transmitting or losing defense information:

 

(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or

 

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

in relation to Clinton’s non-cleared friends, which also renders her culpable:

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

 

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

 

Shall be fined under this title or imprisoned not more than ten years, or both.

 

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

18 U.S. Code § 798 – Disclosure of classified information:

(a)Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(3) concerning the communication intelligence activities of the United States or any foreign government;

Shall be fined under this title or imprisoned not more than ten years, or both.
Intent does nothing more than expand the ways in which violators of these laws can be punished.  Those who have been found guilty of having said intent are sitting in federal prison- some for life without parole, others with lesser sentences.  Having “intent” to violate the Espionage Act for the purpose of hurting or undermining America’s defenses allows one to be imprisoned for more than ten years.
How this has escaped the FBI in the midst of its investigation is truly beyond me.  Simply, I cannot answer the question as to “why” this ball was dropped.  No, I do not contend that Comey was paid off, or under some kind of influence to make a ruling such as this, but I am a firm believer in the concept of big government systems being living, breathing entities- so lifelike that systems sometimes pass judgment, make rulings, and decide the fate of individuals as opposed to the individuals tasked with investigations themselves.
In other words, the Clinton machine is something that at this point might be too big to fail- incapable of experiencing repercussions for actions that have previously sent people to prison.  There is an incredible amount of precedent when it comes to cases such as this, contrary to the words of Director Comey.  It is too bad that while he might be an honorable man with an incredible sense of independence, he is a part of that same, too-big-to-fail system.
Ultimately, Clinton might skate past all of this, as she and her husband have done for decades.  But it would be wise for her, and those who back her, to understand that there are people out there who know the truth behind all of this, and that we won’t forget about it anytime soon.

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