Countless faux HRC scandals: is it possible there’s finally a real one? Real and prosecutable crimes? A story clear and simple enough for the average voter to understand, and dealing with issues important enough that the average voter will be genuinely angry, and/or disgusted, at Hillary’s behavior? I think so. Here’s the case, piece by piece, with links. It’s long, because I want to be reasonably thorough. I don’t like HRC as a candidate, for many reasons, but this is not about that: I genuinely believe she has broken the law, and is in trouble.
I’ll expand on each point below the squiggle:
1. Hillary’s aides sent her emails that should have been marked and considered classified at the time they were sent.
2. This is not about 2 or 4 classified emails: the current number is 63 and it’s going up.
3. These emails were classified at up to the Top Secret / SI / TK // NOFORN level, the highest of the three classification levels, with specific amplifying caveats. Most were Confidential, the lowest of the three classification levels
4. Hillary, even if she just received them, should have been able to recognize them as classified. All holders of clearances, especially TS, receive training in handling and recognizing classified material, but Hillary was both specially charged by President Obama, and specially trained, to recognize classified material, even when unmarked.
5. There is a specific law with clear language that makes utilizing unclassified means to send or store classified material illegal. It's often referred to as the Espionage Act, or 18 U.S. Code § 793.
6. This law does not necessarily require an intent to harm the US government or to commit espionage. Simply sending and storing classified material on an unclassified system is a clear violation of the law.
7. The Obama administration has been particularly tough in using the Espionage Act to prosecute other government officials charged with mishandling classified information, even when no espionage has been alleged or suspected.
1. Hillary’s aides sent her emails that should have been marked and considered classified at the time they were sent.
The two key references are the 24 July joint statement from the Department of State Inspector General (DoS IG) and the Intelligence Community Inspector General (IC IG) https://oig.state.gov/...
and the 11 August Memorandum from the IC IG. https://pbs.twimg.com/...
From the 24 July joint statement:
The IC IG found four emails containing classified IC-derived information in a limited sample of 40 emails of the 30,000 emails provided by former Secretary Clinton. The four emails, which have not been released through the State FOIA process, did not contain classification markings and/or dissemination controls. These emails were not retroactively classified by the State Department; rather these emails contained classified information when they were generated and, according to IC classification officials, that information remains classified today. This classified information should never have been transmitted via an unclassified personal system.
2.
This is not about 2 or 4 classified emails: the current number is 63 and it’s going up. From the DoS Spokesman John Kirby 17 August 2015 Press Conference:
http://www.state.gov/...
MR KIRBY: All right, let’s unpack that before I get to your yes-or-no question. Let’s keep in mind that so far, of the 15 percent or so of the email traffic that we’ve made public – and that’s a small amount – but even that 15 percent or so consists of more than 3,000 emails, so 63 of them have been upgraded in some form.
Again, this number is going up. 63 classified emails are what is technically called a fuck load.
3. These emails were classified at up to the Top Secret / SI / TK / NOFORN level, the highest of the three classification levels. Most were Confidential, the lowest of the three classification levels.
See previously linked IC IG Memorandum and the DoS press conference. From the 11 August IC IG Memorandum:
These emails, attached hereto, have been properly marked by IC classification officials, and and include information classified up to "TOP SECRET / SI / TK / NOFORN."
Every IC Agency (originating agencies) has the right to classify their own stuff—there is no way for DoS to decide how NSA or CIA or any other agency should classify their original material. This is why in the IC IG Memorandum McCullough is returning two DoS originated emails to DoS to make a determination on classification. He is not extending DoS that option on material originating from other agencies.
4. Hillary, even if she just received them, should have been able to recognize them. All holders of clearances, and especially TS, receive training in handling and recognizing classified material, but Hillary was both specially charged by President Obama, and specially trained, to recognize classified material, even when unmarked.
Link is to BHO Executive Order designating 21 senior officials as having Originating Classification Authority. As Secretary of State, Hillary was one of them. https://en.wikisource.org/...
As background, everyone with a clearance is taught they have derivative authority to recognize and mark classified material—if it looks like something else they have known to be classified, it must also be classified. If you sit down and write a report, or read an email in your unclassified inbox, and you know it is similar to other reports that are classified—you must classify it. Originating Authorities like the Sec Def and Sec State have special responsibilities and special training—from the linked President Obama EO 13526:
All original classification authorities must receive training in proper classification (including the avoidance of over-classification) and declassification as provided in this order and its implementing directives at least once a calendar year. Such training must include instruction on the proper safeguarding of classified information and on the sanctions in section 5.5 of this order that may be brought against an individual who fails to classify information properly or protect classified information from unauthorized disclosure. Original classification authorities who do not receive such mandatory training at least once within a calendar year shall have their classification authority suspended by the agency head or the senior agency official designated under section 5.4(d) of this order until such training has taken place.
This destroys the arguments that claim “How could poor Hillary know if she had received unmarked emails?”. OCA is how she was trained to know. And here’s more from former Admiral and current DoS spokesman John Kirby:
MR KIRBY: Well, yes and no. Yes, we’re always concerned about the proper security and safeguarding of sensitive and classified information. But I – but essentially, back to your loophole question, no, there’s no – the responsibilities of a federal employee – and I come from 30 years in the Navy and, I mean, this is something that’s drummed into you from the moment you raise your right hand. The responsibilities of a federal employee to protect sensitive information, whether it’s classified or not, is absolute. And if – you may not have – you may not be the sender, you may not be the originator, but if you’re a recipient of it and you know you are – and sometimes it’s hard to know. In the very fast-paced, dynamic world that we’re living in, whether it’s from a military security perspective or diplomacy, sometimes it’s hard to know at the moment you’re in. But if you do know or you have a reason to suspect, “Boy, I just got an email that’s got some sensitive information in here,” there are steps in place, there’s procedures – we’re all trained on them – on how to deal with that. You alert the IT folks, you alert the security folks, you do what you have to do. Sometimes it’s easy and sometimes it’s not so easy to know where that line is. But there are procedures in place regardless of where on the unclassified side that information resides and/or was transmitted, whether it’s a private Gmail account or my State.gov. There’s procedures and rules and they have not changed. Like I said, I’ve been at this now for three decades and I can tell you they’re the same. It’s the one thing that’s absolutely certain as you take on a job in the federal government.
I’m going to connect points 5 and 6 here, and discuss them simultaneously.
5. There is a specific law with clear language that makes utilizing unclassified means to send or store classified material illegal.
6. This law does not necessarily require an intent to harm the US government or to commit espionage. Simply sending and storing classified material on an unclassified system meets the standard of the law.
Link is to 18 U.S. Code § 793 - Gathering, transmitting or losing defense information. https://www.law.cornell.edu/...
There are 8 clauses, A-H. The first five require “intent or reason to believe that the information is to be used to the injury of the United States”. I do not believe HRC and her aides meant to injure the US or aid a foreign country. A through E do not pertain to her case. However, the clauses are all connected by “or” not by “and”, and stand independently.
Clause (f) is here, in full:
(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.
I will go into some detail on how I interpret this clause, from my experience as someone who has held high clearances for decades. I’m not a lawyer, nor pretend to be one, so welcome other interpretations. One lawyer here, confronted with this clause, was left sputtering:
You also haven't shown the elements of statutory liability. You might want to read United States v. Dedeyan, 584 F.2d 36 (4th Cir. 1978) to see what this statute actually means.
To which I replied, in part:
You're right. I haven't shown the elements of statutory liability. No fucking idea what it is, and little interest in finding out. If you think Hillary should run based on the fact that she violated laws regarding the safekeeping of American secrets, but that under US v Dedayan the elements of statutory liability have not been shown....have at it. She, and her aides, committed crimes. She failed in her responsibilities as Sec State and as an OCA and as an American with a Top Secret clearance.
And yes, I am cranky at times. But, then, as I wrote this diary, I thought....what if he's right, and this Dedayan thing will ruin my argument? So I read U.S V. Dedayan
https://casetext.com/... which helps my case, and it led me to U.S. V. Rosen
https://casetext.com/...
which
also helps my case. Here's a bit of it:
34.
Nearly forty years later, the Fourth Circuit considered a similar vagueness challenge to the phrase "relating to the national defense" as it is used in 18 U.S.C. § 793(f)(2), which penalizes those who have been entrusted with information relating to the national defense and knowingly fail to report its loss, theft, abstraction or destruction to a superior officer. The Fourth Circuit upheld the provision despite the absence of the delimiting words cited in Gorin, reasoning that the statute's requirement of knowledge of illegal abstraction impliedly includes knowledge of injury to the United States. United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978) (upholding a conviction for failure to report the abstraction of a document relating to the national defense).
The courts upheld the conviction in the Dedeyan case and denied the defendant's motion in the Rosen case, even though the information was passed orally....obviously without markings.
So, there are numerous ways someone with a clearance can learn classified information. It can be done through classified message traffic, a classified briefing, or just receiving information you know is classified. One of the emails in question discusses the timing and movement of Ambassador Stevens to Benghazi in some detail, prior to that movement. On learning that, whether from message traffic or simply an oral report, a person with a clearance would and should instantly know that an email with that same information would have to be classified. If you read a TS message in the SCIF, clause (f) says it is illegal to “abstract” that information and send it in an unclassified form. (Abstraction | Definition of abstraction by Merriam-Webster
www.merriam-webster.com/dictionary/abstraction; the act of obtaining or removing something from a source) If you read TS information about phone intercepts (SI information) in a SCIF, and relay it in an unclassified email, as alleged in the IC IG Memorandum, you have broken the law. If you see TS information collected from a satellite (TK information) in a SCIF, and relay it in an unclassified email, as alleged in the IC IG Memorandum, you have broken the law.
But what about just receiving the information? Unmarked? Clearly, Hillary supporters say, that can’t be illegal. Huma and other aides might be in legal jeopardy for sending, but not HRC for just receiving? This speaks to the earlier referenced E.O. designating HRC as an OCA. She received specific and detailed training in recognizing classified information. She received yearly refresher training, on order of the president. Once she recognizes it she has a legal obligation, under clause (f) 2 that
“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—”.
Now, you can argue, and HRC might have to, that at least 63 times she was simply incapable of recognizing classified information. She can admit to being incompetent at her job as an OCA, over and over and over again. 63 times, and growing. It might be an effective legal defense, I don’t really know. It doesn’t seem to be something that would serve her well in a political campaign, and I can imagine fairly devastating campaign ads highlighting her admitted incompetence in securing classified documents.
7. The Obama administration has been particularly tough in using the Espionage Act to prosecute other government officials charged with mishandling classified information, even when no espionage has been alleged or suspected.
From Glenn Greenwald (love him or hate him!) https://firstlook.org/...
When it comes to low-level government employees with no power, the Obama administration has purposely prosecuted them as harshly as possible to the point of vindictiveness: It has notoriously prosecuted more individuals under the Espionage Act of 1917 for improperly handling classified information than all previous administrations combined.
NSA whistleblower Tom Drake, for instance, faced years in prison, and ultimately had his career destroyed, based on the Obama DOJ’s claims that he “mishandled” classified information (it included information that was not formally classified at the time but was retroactively decreed to be such). Less than two weeks ago, “a Naval reservist was convicted and sentenced for mishandling classified military materials” despite no “evidence he intended to distribute them.” Last year, a Naval officer was convicted of mishandling classified information also in the absence of any intent to distribute it.
Maybe the laws that apply to the rest of us don't apply to HRC. Maybe she's above normal scrutiny. Maybe the Obama DoJ will just decide to ignore it, or maybe President Obama will decide to pardon her (while maybe prosecuting her aides). I don't know.
For me, this thing stinks to high heaven. I believe she lost her moral authority to be president when she gave Bush the authorization to use military force, but now I believe she might lose the legal right as well. Can felons be president? I'm actually not sure.
Standard DK caveats apply: despite everything above, if given the sad choice between voting for HRC or one of the GOP candidates, or Trump as a 3rd party....I vote for her. But not happily.