[ cross-posted from Zenpundit — questions relating to the ongoing CBz discussion, FBI Kills Rule of Law — Refuses to Indict Hillary Over Her E-mails — with a side dish of Tzipi Livni ]
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photo credit: Greg Nash via The Hill
I’ll be socratic here, asking questions to illuminate my hunches.
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I’m seldom fully convinced by anything that comes from the left and reads the way I’d expect the left to read, and seldom convinced by anything that comes from the right and reads the way I’d expect the right to read, so I don’t take the left’s assertions downplaying H Clinton‘s security behavior with reflex belief, and on the whole I’m inclined to follow John Schindler, who — both as an ex-NSA analyst and as a regular at The Observer — takes a very hard line on Clinton’s security behavior, writing just a couple of weeks ago under the title, The Coming Constitutional Crisis Over Hillary Clinton’s EmailGate.
I also follow War on the Rocks, though, and was struck a while back by a post there from Mark Stout, drawing some interesting distinctions in line with its subtitle, “A former intelligence analyst who worked at both the CIA and the State Department explains how different approaches to classifying information sits at the heart of the scandal that threatens to undo Hillary Clinton.”
Which does somewhat complicate matters, while somewhat helping us understand them.
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I’m neither an American nor a lawyer, and as someone who is generally inclined more to bridge-building than to taking sides in any case, I don’t feel qualified to debate the Comey-Clinton affair but was interested to see emptywheel’s Marcy Wheeler, whom I take to be leftish, coming out today describing Comey‘s decision as an “improper public prosecutorial opinion”. She writes:
Understand, though: with Sterling and Drake, DOJ decided they were disloyal to the US, and then used their alleged mishandling of classified information as proof that they were disloyal to the US ..Ultimately, it involves arbitrary decisions about who is disloyal to the US, and from that a determination that the crime of mishandling classified information occurred.
Comey, in turn, seems to have made it pretty clear that “Secretary Clinton or her colleagues“ were extremely careless in their handling of very sensitive, highly classified information” specifically:
.. seven email 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 emails about those matters and receiving emails from others about the same matters.
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Is there, in your views, special treatment in this matter for persons of high rank present here?
And out of curiosity, if so, do you see a similar case of special treatment for persons of high rank over in the UK, known to be substantially less Israel-friendly than the US, where Scotland Yard wanted to question Tzipi Livni about alleged Israeli war crimes in Gaza under her watch as Foreign Minister, and “after diplomatic talks” Livni was “granted special diplomatic immunity”?
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On the one hand, I don’t like show-trials, trials-by-press, banana courts or mob justice, and far prefer just laws justly applied and on the other, I can understand that the scrutiny those in high office find themselves under can render them legally vulnerable in ways that may unduly influence their decision-making and justice may be platonically blind, but is not always uniformly applied in practice. Such, it seems to me, is the human dilemma.
What say you?
Without going into any particulars pro-or-con about charging Tzipi Livni, she was an official of a sovereign foreign government and especially the Foreign Minister and therefore literally a diplomat.
International law is different in nature than domestic law. If you are going up against a sovereign foreign government, there is no accepted authority that can over-ride that sovereignty to bring them to trial. You have to be literally willing to go to war, with the risk of losing the war and your own sovereignty. Was the charge against Livni such as to be a cassus belli worth putting the nation at risk? I will leave that to others, since it is not my nation.
Further, international law and international relations are not consistent, because there is no Social Contract all parties agree to other than to a limited extent the Treaty of Westphalia. And nations and cultures differ so much that there is no universal agreement as to enforcement.
Domestic law has to be more consistent, because inside a nation-state its very existence is predicated on such a common social contract. The contracts and laws can be very different from country to country, but they fit their home country.
If the laws are not applied equally and with a perceived equity, then the contract collapses, and things return to the “state of nature” that precedes the social contract that was broken.
I have had a security clearance, for a mere SECRET level, out of the Defense Logistics Agency. My employer had a contract with a high security company, and just to enter the anteroom to deal with something very non-classified I had to go through the mill. As have tens of millions of former service members and employees who have dealt with the government. They all know the crimes committed by Hillary, abetted by the regime.
Hillary Rodham Clinton, Empress-designate, committed literally tens of thousands of violations of the Espionage Act. We don’t have room for a listing. Each is 20 years and/or $20,000. We KNOW that her illegal unsecured server was hacked by foreign intelligence services and had no defenses at all. Wikileaks, which has ties to Russian intelligence is starting to release some of her emails. They got everything. Russia, China, ISIS, and of course supposedly friendly powers too.
Comey said, here is the law. Here is what she did which broke the laws en-masse. We are not going to prosecute her, despite the law. But by Allah, if you peasants get any ideas about breaking those laws, you are dead meat.
This is only the latest and most blatant example of being a country of people and not laws. Once again, I don’t have room here; but every Federal regulatory agency, and pretty much every Federal official, breaks the law for their own benefit or to cover up their own incompetence. And no one is ever punished regardless. The Republicans are just as guilty, and the Republican party puts more effort into protecting Democrats from the law and attacking its own people for wanting to enforce the law, than anything else.
We have a large, ever intrusive, and openly corrupt government, with examples available with minimal research. It is not a matter of lack of uniform application, because you cannot find recent [go back a couple of decades] where Federal officials are punished for crimes they are caught in, unless the catching is a result of political pressure. And if a Potemkin penalty is laid down, it is nothing compared to what a mere citizen would receive for a lesser crime.
We have no rule of law. Americans no longer have a MORAL obligation to obey the law. They have a legalistic obligation, enforced only by the ability of the State to apply superior deadly force with no restriction. The recourse to that, in the absence of the rule of law, is to negate the “superior” aspect.
I believe the phrase is “interesting times”.
After reflecting, I think perhaps what we saw was the result of Comey being told by Lynch that she had no plans to prosecute Hillary.
The Clintons and the DoS have dragged this out for two years by stonewalling and now, it is so close to the election, they say “It is too late.”
This is the old parricide defense of “We are orphans.”
I don’t know what happens now.
Democrats seem to me to have given up on law as a matter of philosophy.
They don’t want black men in prison even if they have committed crimes. They don’t want policemen to enforce the law.
I wonder what they think will happen ?
She violated the records statute by having the personal server and destroying records. Nothing to do with classifications … you are being distracted …
Comey: 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
An astounding statement considering this prosecution from the FBI’s own website:
Bryan H. Nishimura, 50, of Folsom, pleaded guilty today to unauthorized removal and retention of classified materials, United States Attorney Benjamin B. Wagner announced…
According to court documents, Nishimura was a Naval reservist deployed in Afghanistan in 2007 and 2008. In his role as a Regional Engineer for the U.S. military in Afghanistan, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. He carried such classified materials on his unauthorized media when he traveled off-base in Afghanistan and, ultimately, carried those materials back to the United States at the end of his deployment. In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system.
This is a matter that transcends the labels of Left or Right. There is a ruling caste that is protecting its anointed candidate at the expense of the law. This isn’t surprising considering Comey isn’t a law enforcement official but an operative of the oligarchy:
Then there’s Mr. Comey’s role in the investigation of the leak of Valerie Plame’s identity as a CIA employee. Mr. Comey first encouraged Mr. Ashcroft to recuse himself in naming a special counsel on grounds that the AG could run into a conflict of interest if the investigation implicated Karl Rove.
Whereupon Mr. Comey gave the job to Patrick Fitzgerald, a close personal friend. Unlike independent counsels under the now defunct statute, a special counsel is supposed to be under the Justice Department’s supervision, and it would be interesting to hear Mr. Comey explain how appointing the godfather of one of his children to a high-profile job under his direction did not entail a conflict of interest.
Mr. Fitzgerald quickly found out that the leaker of Ms. Plame’s identity was Deputy Secretary of State Richard Armitage, a fact Mr. Fitzgerald kept secret for years. Yet instead of closing the case down, Mr. Comey signed off within weeks on an expansion of Mr. Fitzgerald’s mandate. After a three-year investigation that turned up almost nothing new, the prosecutor tried to salvage his tenure with a dubious indictment of Scooter Libby for perjury.
Mr. Fitzgerald’s Javert imitation, supported by his superior Mr. Comey, also managed to land New York Times reporter Judith Miller in jail for 85 days for refusing to reveal her sources, and nearly did the same for Time magazine’s Matthew Cooper. With another FBI violation of internal Justice guidelines regarding media freedoms in the news, someone might ask Mr. Comey why he was prepared to resign on principle over surveilling terrorists, while doing nothing to stop Mr. Fitzgerald’s efforts to criminalize journalism?
Comey is also a member of the Revolving Door Club of politicians that parlay their public service into lucrative positions at corporations seeking to use them for political influence. He worked at Lockheed Martin where he made millions of dollars a year, and he was place on the board of directors at HSBC to improve their legal position while they were facing a damaging money laundering prosecution. He has an incentive to protect Clinton’s bribery and money laundering operations because he greatly benefits from the same system.
Thanks, Subotai, for opening this up, Mike, and Kaiser — Grurray, I’d heard more positive things about Comey after a certain bedside visit, so that part of your comment is educational as to possibilities — I’m always grateful to hear from you.
I think for me the most revelatory thing was reading Mark Stout’s piece, with his experiences of security, clearances and leaks in his time with both the IC and State, and the reasons why those two institutions had differing ethoi around such matters:
State Department officials often have some naïve ideas about security, or don’t even think about it at all. When I served in the department, I witnessed a good bit of sloppy security behavior, typically by relatively senior people. For instance, when I was doing a brief stint on a crisis task force, I was listening to the secretary of state’s unsecured telephone conversation with the U.S. ambassador in the affected country piped over the speakers. All of a sudden, I heard the secretary ask the ambassador what he thought of the recent CIA clandestine report on such-and-such. Similarly, rumors abounded among my peers that a senior State Department official had been seen on a commercial airline flight reading a highly classified document. Not infrequently, I saw department officials walk out of the building to meetings with classified documents just tucked into a folder instead of being properly double-wrapped. (Of course, carelessness like this is not unique to the State Department, as the experiences of former CIA Directors John Deutch and David Petraeus and former National Security Adviser Sandy Berger attest.)
Even allowing for those facts, however, the uproar about the Clinton email server ignores the reality that, for very good reasons, the CIA and the State Department have different approaches to classification and classified information. These different approaches result from the different functions of the agencies.
Consider the CIA. Its culture and procedures enforce an expansive approach toward classification: You can never be too cautious. The reasons are simple. The bulk of the Agency is devoted to the business of intelligence collection and analysis. These are activities that are usually most successful when nobody on the outside ever notices that anything has happened. For its part, the Clandestine Service has to worry about keeping recruited spies alive. Meanwhile, the writings of CIA analysts directly influence the highest-level, most sensitive strategy formulation and decision-making in the country. These are serious equities, so it is usually best to throw a blanket of secrecy over everything.
The results can be seen everywhere in the agency. For instance, the CIA does as much work as possible inside SCIFs, specially secured, usually windowless rooms. Even unclassified facts reported in the open press about events abroad can become classified if CIA analysts use them. The theory is that the fact the CIA was interested in a story is sensitive. My time at CIA included the last years of the Boris Yeltsin administration, a time when Yeltsin was in very poor health. I used to joke that any day I might see an Agency SitRep saying something like “Russian President Boris Yeltsin died today, according to press reports. (Confidential/NOFORN).”
[ .. ]
All these and related norms are reinforced every day by the CIA culture, and enforced every few years by security clearance reinvestigations ”” prominently featuring polygraph examinations ”” that probe into questions about unauthorized disclosures, relationships with foreigners, and relationships with reporters. In short, though it operates overseas, the CIA really faces inward toward the U.S. government.
The State Department is different. Unlike the CIA, it faces outward to the public and other countries. In fact, it exists for the very purpose of talking to foreigners, many of them not especially friendly. Department officials must regularly exchange sensitive information or proposals with these foreigners. State Department officials often conduct their diplomacy in unsecure locations such as restaurants, hotel lobbies, or over regular telephone lines because there is no realistic alternative. When a major political figure in a foreign country calls the U.S. ambassador on a commercial telephone, is the ambassador supposed to refuse the call? If a political officer is invited to lunch by an interlocutor, should he or she restrict conversation to the weather? Of course not. Business must be done. Obviously, then, it is not a natural thought that business conducted in a busy restaurant in a foreign country must immediately then be treated as a state secret.
Also, the CIA’s notion that publicly known facts reported in newspapers should be treated as classified does not work well in the State Department’s environment. The State Department usually cannot conceal its interest in a topic because when it is interested in something its diplomats often must go talk to foreigners about the developments. The department has to live in the real world, where news stories ”” even if they report classified facts about the activities of other agencies of the government ”” actually exist and have effects that must be dealt with, often by them. The differences continue: Unlike CIA officers, State Department officials are not discouraged from admitting for whom they work. Quite the opposite; they are meant to be proud and attractive representatives of their country. Finally, foreigners and journalists are an everyday presence in the State Department because they have to be if the department is to inform, persuade, and coerce foreign publics and governments while remaining accountable to American taxpayers.
So, the two agencies of necessity have different approaches to classification.
That’s a conflict born of necessity, and should I think be part of what’s weighed here.
Gurray’s point that “This is a matter that transcends the labels of Left or Right. There is a ruling caste that is protecting its anointed candidate at the expense of the law” is well taken (by me, that is) — and I’ve seen people I follow on the left (Juan Cole, eg) who are as appalled by what looks to them like split-level justice as those I follow on the right. That feeling of betrayal is not as uniformly present on the left as on the right, but it’s there, probably more the farther left you are that H Clinton.
My version of analysis has its own strengths and weaknesses, and is as I sai at the top of my post, largely socratic, questioning rather than deciding or supporting.
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Was there, is there ever a state where some are not exempt from the rule applied to the many?
What kind of legal treatment would a lower-level govt employee with a security clearance get for behavior similar to Clinton’s?
What kind of legal treatment would a high-level govt employee of the Party that’s out of power get for such behavior?
Hi Jonathan:
Manning got what, 35 years? for something similar. H Clinton’s husband got impeachment by the opposing party. So I guess justice does indeed play with loaded dice. Was it ever otherwise?
I tend to think justice is a noble ideal and something of a levee against the tides of populism, hatred, and revenge — but that human nature being as it is from an anthro perspective, and also from the perspective of sin vs righteousness, it is not infrequently inadequate to the task of keeping things equal.
So I’m nodding to both your questions as if they were statements.
Charles:
Also Petraeus.
Indeed.
“She violated the records statute by having the personal server and destroying records. Nothing to do with classifications ”¦ you are being distracted ”¦”
It is about both. The FBI chose to only deal with the classified part. The State Department isn’t interested in either issue other than managing/spinning the public relations aspects.
Bill Clinton was impeached “by the other party”. Implication this was about politics rather than perjury. He lost his license to practice law in Arkansas over the same perjury incident, also not a political issue. The political part of the Clinton impeachment was not the actions of the “other party”, it was the failure of his own party to face the fact that he committed perjury. This is in direct contrast to the actions of Richard Nixon’s party under similar circumstances.
In my time if a soldier lost his CEOI (communications code book), he was charged under the Uniform Code of Military Justice of a criminal offense, whether through simple or gross negligence. The punishment resulted in the revocation of the soldier’s security clearance and eventual termination of his or her service. This was consistently the result stateside or overseas, war time or peace time. The CEOI is classified as confidential, not secret, not top secret. Consequences for failing to safeguard higher classified information were proportionally more severe.
The issue of the intent of the accused has nothing to do with violation of the US Code in safeguarding classified information. Intent is outside of the congressional intended scope of the applicable law. Comy set up a straw man in this regard.
Comey has shown himself to be a political hack because it is beyond possibility that he doesn’t understand the elements of proof for the alleged violation of the law. If he had been a person of honor he would have stated that he was recommending that the US prosecutor invoke prosecutorial discretion and refuse to prosecute Clinton because she is the presumptive nominee of the president’s party and because he expects to be rewarded along with his boss by Clinton after the results of the coming election. Or did he say as much by articulating the case against her and then stating that no prosecutor would prefer charges?
Where can I get my banana republic flag?
Death6
What say I? No American need ever again feel under any moral compunction to obey any Federal law.
Laws are for the little people.
This, I remind myself, is the FBI that bumped off a witness in the case of the Chechen brothers who did the Boston bombing. If, indeed, they did it. Since the FBI are clearly not to be believed or trusted on Clinton, why believe them on Boston?
Indeed, Dearie – I don’t recall ever hearing a good account of how that particular death came about. And speaking of sudden and ostentatiously unexplained deaths – the motorcycle club/gang shootout at the Twin Peaks in Waco is still … a matter of mystery as well.
It is to break the heart – how the trust of the general public has been pissed away over the last few years. There always was a small lunatic fringe, seeing malign plots in every corner. Now distrust of the feds, and in some locales, distrust of the local authorities (sometimes with good and sufficient reason) has gone mainstream.
Reagan used to use the “I’m from the government and I’m here to help” as an almost comic punchline. People laughed because it meant something mild, ironic. Now it means deep suspicion of something malign and malicious.
as i wrote on 7/4/16; use article v convention of states to start taking away power from the “ruining class”.
start with the raising of the federal debt by requiring 3/4 of state legislature approval. next cos gut the federal gov’t by imposing 12 term limits on all employees. we just need to beat them senseless a few times and then this “ruining class” will go away.
Death6 asked:
“Where can I get my banana republic flag?”
Right here:
http://www.zazzle.com/banana_republic_postcard-239542128779375981
the fun part of a second cos with term limits is the discussion: how many federal employees do you want to eliminate in one fell swoop? i think that all those federal officers above the “captain” level are eliminated. all of capital hill is eliminated. they go the day the amendment is passed. and the fallen senators, give the state legislature a taste of pre 17 amendment america whereby they have 60 days to appoint a replacement until the next election or if they can’t do that let the governor appoint. and those
bureaucrats eliminated? why replace them?
dream big. start in 2018 at the state level.
Imagine there’s no
heavenbureaucracyIt’s easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today… Aha-ah…
Imagine there’s no
countriesglobalistsIt isn’t hard to do
Nothing to kill or die for
And no religion(of peace), too
Imagine all the people
Living life in peace… You…
You may say I’m a dreamer
But I’m not the only one
I hope someday you’ll join us
And the world will be as one
the whole “hillarity thing” suggests that the main purpose of this federal gov’t has been sold. we should attack on all fronts on all levels. too many of you want to put it off for another day.
I’ve had security clearances at the level of the stuff she had in her e-mails, that can’t possibly innocently come into contact with unsecured systems. After Manning and Snowden security protocols, training, etc., became far more intrusive to the point of interfering with the ability to get work done, but that’s the way it is in that world. You do what you’re told to do, even if it impacts performance. I can’t imagine what it’s like to be an FSO right now–how do you keep dropping training and rules updates on people without them all saying, “So, where’s the ‘unless you’re Hillary Clinton’ exemption to this rule, I can’t seem to find it?” How can you take your own job seriously?
It’s kind of amazing to me that the press doesn’t seem to care about the whole government record-keeping issue. At this point there will never be written government documents produced by cabinet level officials ever again. Don’t any journalists/historians/etc. care? A rhetorical question, sadly…