The Fitting End Is Just Right Out

So the reason Felonia Milhous Von Pantsuit was not prosecuted is that the Department of Justice interprets a law which specifically exempts intent as still requiring intent.  The law

18 U.S.C. § 793(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…[is
subject to a criminal fine or imprisonment].

Seems clear enough to me.  Anyone who is cleared (read in) has an affirmative duty to protect “national defense information.”  Notice no mention is made of “classification” level as the previous law predates our modern system of classification, and that language was retained in the 1970 revision.  That seems appropriate as information can be gathered from open sources or direct observation and then analyzed and reported such that it becomes a piece of “national defense information” before it is assigned an appropriate level of Classification.  It is worth noting that none of the e-mails and attachments in question were marked as classified documents are required to be marked.  Review of the content of the messages by the Originators of the data showed that material ranged from un-classified through Confidential and all the way up to Top Secret / SAP (Special Access Program / Special Compartmented Information) and did indeed extend to sources and means.

The problem is the gross negligence clause and how the DOJ has interpreted it.  See Report of the Inspector General, Chapter 2 Section vi B.

Essentially, the DoJ requires some demonstration of bad intent.  They can and have settled in previous (and ongoing) cases for lying about the matter to the FBI to establish mens rea.  And in this case seemed to actively disregard at least one clearly disengenuous response by Madam Former Secretary in her interview (See Report of the Inspector General, Chapter 5 Section ix [p 167]):

In addition, the interviewers asked Clinton about an email that contained a
parenthetical with a “(C)” at the beginning. According to the prosecutors, Clinton
received three email chains during her State Department tenure that contained at
least one paragraph that began with a ‘(C),’ a classification marking used to denote
information classified at the Confidential level. The prosecutors stated that these
were the only emails containing classification markings that the FBI identified
during its investigation, the emails did not contain any markings other than the one
or two paragraphs in each email beginning with a “(C),” and as of July 6, 2016, the
State Department had not responded to the FBI’s request for a determination as to
as to whether the information in these three emails was classified at the time the
emails were sent. The prosecutors further stated that the State Department had
determined through the FOIA process that only one of the three emails contained
information that was classified as of July 6, 2016, and that this email was classified
at the Confidential level. According to the FD-302 from Clinton’s interview, Clinton
told the FBI that she did not know what the “(C)” meant and “speculated it was a
reference to paragraphs ranked in alphabetical order.” The FD-302 indicates that
the FBI had added a classification marking of “Confidential” to the top of the
document and that, upon noticing this marking, Clinton asked if the “(C)” meant
Confidential. Clinton told the interviewers that she did not agree that the
information contained in the email was classified, because it described information
that was already in the press. Witnesses told us, and contemporaneous emails
show, that the FBI and Department officials who attended Clinton’s interview found
that her claim that she did not understand the significance of the “(C)” marking
strained credulity. Agent 1 stated, “I filed that in the bucket of hard to impossible
to believe.” Agent 1 further stated that he and the other interviewers asked Clinton
about her understanding of the “(C)” markings four or five times, but she did not
change her answer. He told us, “I also don’t know at that point in the interview
what else we could have done besides all the different ways that we asked it.”

So this matter needs to been addressed by Congress.

I recommend amending it thus:

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, without 
regard as to intent (1) who removes, or 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…[is
subject to a criminal fine or imprisonment].

As to the stupendous breach of security that leads us to this discussion, we have a problem.  The Federal Bureau of Matters NonInvestigation and the Department of InJustice have thoroughly muddied the waters such that even I have to admit that getting a conviction seems out of the question, how do we address this gross misconduct in a manner that will discourage repetition of these actions?

I have a modest proposal.  Everyone who has been shown by the FBI’s “Mid Year Examination”  investigation to have transmitted any national defense information via non-secure means shall, by Executive Order, have any and all clearances revoked, and be barred from holding any level of clearance for any access to national defense information for the rest of their lives.

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