Thursday, July 14, 2016

PUBLIC RECTUM, HERSEY SWEATS, AND OLFACTORY OSSIFICATION


Washington Has Been Obsessed With Punishing Secrecy Violations — until Hillary Clinton ... IT STINKS bDIA CAN'T STM BUT THE DRIVEWAY 


Secrecy is a virtual religion in Washington. Those who violate its dogma have been punished in the harshest and most excessive manner – at least when they possess little political power or influence. As has been widely noted, the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined. Secrecy in DC is so revered that even the most banal documents are reflexively marked classified, making their disclosure or mishandling a felony. As former CIA and NSA Director Michael Hayden said back in 2000, “Everything’s secret. I mean, I got an email saying ‘Merry Christmas.’ It carried a top secret NSA classification marking.”
People who leak to media outlets for the selfless purpose of informing the public – Daniel Ellsberg, Tom Drake, Chelsea Manning, Edward Snowdenface decades in prison. Those who leak for more ignoble and self-serving ends – such as enabling hagiography (Leon Panetta, David Petreaus) or ingratiating oneself to one’s mistress (Petraeus) – face career destruction, though they are usually spared if they are sufficiently Important-in-DC. For low-level, powerless Nobodies-in-DC, even the mere mishandling of classified informationwithout any intent to leak but merely to, say, work from home – has resulted in criminal prosecution, career destruction and the permanent loss of security clearance.

SHOULD INVOLVED STAFF IN THIS FIASCO CONTINUE TO KEEP THEIR SECURITY CLEARANCES?


This extreme, unforgiving, unreasonable, excessive posture toward classified information came to an instant halt in Washington today – just in time to save Hillary Clinton’s presidential aspirations. FBI Director James Comey, an Obama appointee who served in the Bush DOJ, held a press conference earlier this afternoon in which he condemned Clinton on the ground that she and her colleagues were “extremely careless in their handling of very sensitive, highly classified information,” including Top Secret material.

Comey also detailed that her key public statements defending her conduct – i.e., she never sent classified information over her personal email account and that she had turned over all “work-related” emails to the State Department – were utterly false; insisted “that any reasonable person in Secretary Clinton’s position . . . should have known that an unclassified system was no place for that conversation”; and argued that she endangered national security because of the possibility “that hostile actors gained access to Secretary Clinton’s personal e-mail account.” Comey also noted that others who have done what Clinton did “are often subject to security or administrative sanctions” – such as demotion, career harm, or loss of security clearance.

Despite all of these highly incriminating findings, Comey explained, the FBI is recommending to the Justice Department that Clinton not be charged with any crime. “Although there is evidence of potential violations of the statutes regarding the handling of classified information,” he said, “our judgment is that no reasonable prosecutor would bring such a case.” To justify this claim, Comey cited “the context of a person’s actions” and her “intent.” In other words, there is evidence that she did exactly what the criminal law prohibits, but it was more negligent and careless than malicious and deliberate.

Looked at in isolation, I have no particular objection to this decision. In fact, I agree with it: I don’t think what Clinton did rose to the level of criminality, and if I were in the Justice Department, I would not want to see her prosecuted for it. I do think there was malignant intent: using a personal email account and installing a home server always seemed to be designed, at least in part, to control her communications and hide them from FOIA and similar disclosure obligations. As The New York Times noted in May about a highly incriminating report from the State Department’s own Auditor General: “emails disclosed in the report made it clear that she worried that personal emails could be publicly released under the Freedom of Information Act.”

Moreover, Comey expressly found that – contrary to her repeated statements – “the FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014.” The Inspector General’s report similarly, in the words of the NYT, “undermined some of Mrs. Clinton’s previous statements defending her use of the server.” Still, charging someone with a felony requires more than lying or unethical motives; it should require a clear intent to break the law along with substantial intended harm, none of which is sufficiently present here.

But this case does not exist in isolation. It exists in a political climate where secrecy is regarded as the highest end, where people have their lives destroyed for the most trivial – or, worse, the most well-intentioned – violations of secrecy laws, even in the absence of any evidence of harm or malignant intent. And these are injustices that Hillary Clinton and most of her stalwart Democratic followers have never once opposed – but rather enthusiastically cheered. In 2011, Army Private Chelsea Manning was charged with multiple felonies and faced decades in prison for leaking documents that she firmly believed the public had the right to see; unlike the documents Clinton recklessly mishandled, none of those was Top Secret. Nonetheless, this is what then-Secretary Clinton said in justifying her prosecution:


I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.

Comey’s announcement also takes place in a society that imprisons more of its citizens than any other in the world by far, for more trivial offenses than any western nation – overwhelmingly when they are poor or otherwise marginalized due to their race or ethnicity. The sort of leniency and mercy and prosecutorial restraint Comey extended today to Hillary Clinton is simply unavailable for most Americans.

What happened here is glaringly obvious. It is the tawdry by-product of a criminal justice mentality in which – as I documented in my 2011 book With Liberty and Justice for Some – those who wield the greatest political and economic power are virtually exempt from the rule of law even when they commit the most egregious crimes, while only those who are powerless and marginalized are harshly punished, often for the most trivial transgressions.

Had someone who was obscure and unimportant and powerless done what Hillary Clinton did – recklessly and secretly install a shoddy home server and worked with Top Secret information on it, then outright lied to the public about it when they were caught – they would have been criminally charged long ago, with little fuss or objection. But Hillary Clinton is the opposite of unimportant. She’s the multi-millionaire former First Lady, Senator from New York, and Secretary of State, supported by virtually the entire political, financial and media establishment to be the next President, arguably the only person standing between Donald Trump and the White House.

Like the Wall Street tycoons whose systemic fraud triggered the 2008 global financial crisis, and like the military and political officials who instituted a worldwide regime of torture, Hillary Clinton is too important to be treated the same as everyone else under the law. “Felony charges appear to be reserved for people of the lowest ranks. Everyone else who does it either doesn’t get charged or gets charged with a misdemeanor,” Virginia defense attorney Edward MacMahon told Politico last year about secrecy prosecutions. Washington defense attorney Abbe Lowell has similarly denounced the “profound double standard” governing how the Obama DOJ prosecutes secrecy cases: “lower-level employees are prosecuted . . . because they are easy targets and lack the resources and political connections to fight back.”

The fact that Clinton is who she is undoubtedly what caused the FBI to accord her the massive benefit of the doubt when assessing her motives, when finding nothing that was – in the words of Comey – “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.”

But a system that accords treatment based on who someone is, rather than what they’ve done, is the opposite of one conducted under the rule of law. It is, instead, one of systemic privilege. As Thomas Jefferson put it in a 1784 letter to George Washington, the ultimate foundation of any constitutional order is “the denial of every preeminence.” Hillary Clinton has long been the beneficiary of this systemic privilege in so many ways, and today, she received her biggest gift from it yet.

The Obama-appointed FBI Director gave a press conference showing that she recklessly handled Top Secret information, engaged in conduct prohibited by law, and lied about it repeatedly to the public. But she won’t be prosecuted or imprisoned for any of that, so Democrats are celebrating. But if there is to be anything positive that can come from this lowly affair, perhaps Democrats might start demanding the same reasonable leniency and prosecutorial restraint for everyone else who isn’t Hillary Clinton.


There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services. Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.

ONLY THE LITTLE PEOPLE OBEY THE LAW

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence. I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed. It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged. Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged.


It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information. I think highly of Jim Comey personally and professionally, but this makes no sense to me. Finally, I was especially unpersuaded by Director Comey’s claim that no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI. To my mind, a reasonable prosecutor would ask: Why did Congress criminalize the mishandling of classified information through gross negligence? The answer, obviously, is to prevent harm to national security. So then the reasonable prosecutor asks: Was the statute clearly violated, and if yes, is it likely that Mrs. Clinton’s conduct caused harm to national security? If those two questions are answered in the affirmative, I believe many, if not most, reasonable prosecutors would feel obliged to bring the case.