Greenwald writes: "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."
Hillary Clinton. (photo: Molly Riley/AP)
Washington Has Been Obsessed With Punishing Secrecy Violations - Until
Hillary Clinton
By Glenn Greenwald, The Intercept
07 July 16
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 D.C. 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 Snowden - face
decades in prison. Those who leak for more ignoble and self-serving ends -
such as enabling hagiography (Leon Panetta, David Petraeus) or ingratiating
oneself to one's mistress (Petraeus) - face career destruction, though they
are usually spared if they are sufficiently Important-in-D.C. For low-level,
powerless Nobodies-in-D.C., even the mere mishandling of classified
information - without 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.
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., that she never sent classified information over her personal email
account and 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 email 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 emails 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 byproduct 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 work
with top-secret information on it, then outright lie 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 multimillionaire 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: that is undoubtedly what caused the FBI
to accord her the massive benefit of the doubt when assessing her motives.
Her identity, rather than her conduct, was clearly a major factor in his
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.
Error! Hyperlink reference not valid. Error! Hyperlink reference not valid.
Hillary Clinton. (photo: Molly Riley/AP)
https://theintercept.com/2016/07/05/washington-has-been-obsessed-with-punish
ing-secrecy-violations-until-hillary-clinton/https://theintercept.com/2016/0
7/05/washington-has-been-obsessed-with-punishing-secrecy-violations-until-hi
llary-clinton/
Washington Has Been Obsessed With Punishing Secrecy Violations - Until
Hillary Clinton
By Glenn Greenwald, The Intercept
07 July 16
ecrecy 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 D.C. 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 Snowden - face
decades in prison. Those who leak for more ignoble and self-serving ends -
such as enabling hagiography (Leon Panetta, David Petraeus) or ingratiating
oneself to one's mistress (Petraeus) - face career destruction, though they
are usually spared if they are sufficiently Important-in-D.C. For low-level,
powerless Nobodies-in-D.C., even the mere mishandling of classified
information - without 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.
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., that she never sent classified information over her personal email
account and 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 email 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 emails 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 byproduct 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 work
with top-secret information on it, then outright lie 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 multimillionaire 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: that is undoubtedly what caused the FBI
to accord her the massive benefit of the doubt when assessing her motives.
Her identity, rather than her conduct, was clearly a major factor in his
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.
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