Just a quick background. I served as Command Security Manager abroad my submarine. My job was to ensure the safety and security of all the classified information onboard my strategic nuclear missile submarine. As you can imagine, there’s a significant amount of that material onboard, and the requirements to protect it are precise.1 So, I’m qualified to speak about what follows.
Bottom line: The standard that the the FBI Director used to base his decision on Hillary isn’t the actual standard set forth in the instructions. Let me show you.
The instruction that Hillary is under is from the US Code 18 U.S.C 793 titled “Gathering, Transmitting Or Losing Defense Information.” Here’s a direct link to the text so that you can follow along.2
From §793.d
Whoever, lawfully having possession of, access to, control over, or being entrusted with any [Classified Material] relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand…
§793.e
Whoever having unauthorized possession of, access to, or control over any [Classified Material] relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it…
§793.f
Whoever, being entrusted with or having lawful possession or control of any [Classified 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
And here is the consequence:
Shall be fined under this title or imprisoned not more than ten years, or both.
Bottom Line: If you have classified information, and you are negligent in its handling so that someone not supposed to have it can get it, you shall be imprisoned or fined. It doesn’t say “you may be” or that “under the discretion of the FBI you could be.” It says “you shall be.”
There is no caveat for incompetence or lack of intent. This law makes no room for mistakes because it’s dealing with national security matters.
And negligence does not mean intent. Those are two separate categories. Negligence means that the material was mishandled (not that you meant to mishandle it).
The Director of the FBI admits that Hillary Clinton meets those standards. She was grossly negligent but didn’t have any intent to be:
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.
There is nothing anywhere in the statue about intent. It’s about negligence and incompetence. And, in fact, the Director of the FBI shows that there is negligence and incompetence everywhere.
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
For example, seven e-mail 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 e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).
None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.
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.
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.
With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.
If anyone else but a Clinton had done this with classified material in the government, they would have been hauled away and locked up.
But the Clintons always get a “by” when it comes to anything shady and illegal.
1. If you are interested, see Section 2-3 of the SecNav 5510.30 Instruction.
2. As shorthand, I’m going to replace the repeating phrase “document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note” with the words [Classified Information].