Another contractor has deliberately taken classified from NSA (though this time no one successfully absconded to China and Russia). It is also a Booz Allen Hamilton contractor, like Ed Snowden, which is awkward for them. Booz employs a large number of people in sensitive positions, and this certainly isn’t indicative of an actual systemic problem, though that will hardly prevent people from insinuating such. I haven’t immediately noticed anyone talking much about the company though. Instead I read and hear faulty comparisons between acts of deliberate compromise of classified and Hillary Clinton’s e-mails. One might think that the FBI’s investigation into this matter would put it to rest; one would be wrong in such a supposition. I don’t know that I can explain it any more clearly than the FBI director, but I’ll give my $0.02 anyway.
This is a quote from Director Comey’s statement regarding marked e-mails: “Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.” That very small number turned out to be the number 3.
Since this was an unclassified server and an unclassified e-mail address, there should have been no possibility of messages marked as classified being transmitted. Spillage (the accidental transfer of information that should have been treated as classified over an unclassified system) is unfortunately routine, but normally people do not mark spilled information as classified. If they did, then they would reasonably realize that they were in the process of doing something wrong and stop. So what was Director Comey talking about? If there were actual messages that were marked as classified then that means that someone either deliberately printed properly marked classified materials and introduced them to an unclassified system. That should certainly merit prosecution. The reason this did not warrant prosecution is that, as Department of State Spokesman Kirby later clarified, these were documents from which the classifications should have been removed because they were no longer classified. While there were portion markings (errant symbols on individual paragraphs that indicated “confidential”), there were no marks on the top and bottom of the documents as is required. This is because State routinely deals with low-level classified information that is no longer classified once an event occurs. Normal protocol is to remove all of the classified markers from the document after the fact. In this case, someone failed to remove the portion markings on some paragraphs. Because the portion markings were erroneous there was no actual transmission of classified, and no actual violation. It still problematic, but this is why they do not rise to the level of criminal conduct.
Aside from that comment, the rest of the director’s statement was a pretty straight-forward explanation of why there is no recommendation for prosecution. Simply put, there was no evidence that there was any intentional wrong-doing. Director Comey did cite 110 messages (out of tens of thousands) that included classified information. He stated that the information was classified at the time the messages were sent, rather than classified after the fact. Let’s clarify that none of this was marked classified (aside from what has already been discussed). That it was – or, more precisely, should have been – classified at the time it was sent is a matter of opinion, and the opinions in this case come from other agencies. Director Comey remarked about going back to the information “owners” for clarification of whether something was classified at the time, and that is unfortunately more subjective than we’d like to think. For example, both CIA and DIA routinely classify every-single-thing as secret and not releasable, even when relating information from an unclassified source document. Even Director of National Intelligence James Clapper admitted that the intelligence community at large routinely over-classifies information, and the determination of classification is a very subjective matter. There could easily be disagreements between agencies, and there could easily be confusion and accidental spillage. That would not reach the threshold of criminal intent – and intent is a facet that must be demonstrated in a criminal case. Negligence may suffice as intent in some cases, but with so much interagency disagreement on what is and isn’t classified it becomes tricky to nail negligence down. Explicit intent is easier, but Director Comey says such intent was not evident.
Director Comey made reference to administrative and security actions that some might face in a similar situation to Clinton’s, and many have jumped on this as an example of disparate or selective enforcement and corruption. I disagree, as administrative and security repercussions are not criminal justice. If Mrs. Clinton were still with the DoS when all of this became an issue then she may very well have faced such administrative actions. Since she is no longer with the organization there is really no administrative action to take. Since there was no evidence of deliberate wrong-doing there was nothing to criminally prosecute.
This is why comparisons between this recent theft of classified, or Ed Snowden, or Chelsea (formerly Bradley) Manning, or David Petraeus, or any other myriad cases involving service members or government officials deliberately removing classified information from controlled systems in direct violation of law, are errant. In these other cases there was demonstrable and admitted intent to remove classified from a controlled system and introduce it into an unclassified system. That is why the other situations were or are prosecutable and the other is not.
Just to clarify, the purpose of this piece is not to convince anyone not to care about the Clinton e-mail issue. While I personally do not see it as disqualifying, others may still think that the whole event calls her judgement into question. I don’t intend to settle that argument here (or probably anywhere). I only hope to demonstrate why comparing actual theft of classified with erroneous portion markings and subjective interpretations after the fact are not the same thing.
As always, I’m interested in other opinions on the topic. Feel free to chime in if you’d like!