Thursday, July 7, 2016

Federal Bureau of Inconsistency


A little less than a year ago, on July 29, 2015, the FBI released a statement that wasn’t covered by any of the major news outlets, wasn’t the leading story on the local news, and was never committed to the black and white of the newspaper. It wasn’t news “worthy of dissemination” but, given the recent statement issued by FBI Director James B. Comey regarding Secretary Clinton’s use of a private email server the verdict announced last summer is finally being brought to light. First, let us review a small section of the statement from 2015:

“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.”

When looking at the “crime” and the penalty it is pretty straightforward and should be easily applied to future situations. This is especially true when you consider the fact that this is pretty much a textbook example of Section 793, subsection (f),”Gathering, transmitting or losing defense information“, of the US Code which outlines the following:

“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— Shall be fined under this title or imprisoned not more than ten years, or both.”

So now let us consider the case at hand. While clearly a much more complicated investigation than the one previously detailed, the results are much more concise in the transgressions committed by Secretary Clinton during her time at the State Department. First let us determine if any of those emails contained classified information that would warrant charges based on the aforementioned statute. For this, I reference two sections from the recently issued statement:  

“From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent… Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department.


“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.”

And, just as in the case of Bryan H. Nishimura, intention is not a factor in determining whether or not someone has broken the law. There is a reason why security measures are in place, systems are monitored, and all correspondences are catalogued… these are steps we need to take to protect our information and maintain the level of security necessary in this world. While the FBI is kid in the following section, I would qualify the actions of the State Department, including Secretary Clinton, as grossly negligent:

“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… 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.”

What really matters here is that this was a breach of national security and, while they haven’t been able to determine whether or not hostile parties have accessed classified information the FBI admitted noted that “…we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.” We were put at great risk by Secretary Clinton and she should be facing charges. But…

“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… To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

And there is the double standard clearly stated by the FBI Director himself. Of course, today’s testimony makes me think a little about his “interesting” perspective on the law:

Yet Comey said while Clinton showed “great carelessness,” he did not see evidence she and those with whom she corresponded “knew when they did it they were doing something that was against the law.”

He said no reasonable prosecutor would bring a case based only on what is known as “gross negligence.” At the same time, he suggested that if Clinton had worked at the FBI, she could be subject to a range of disciplinary measures including suspension or termination.

“You could be walked out,” he said.

Basically, he is stating that if you get pulled over on the highway but you didn’t realize that you were speeding then you didn’t break the law. Yeah, my head hurts too. While there are many trying to assign motive to Director Comey, I am not going to do so, his more recent statements pretty much sum up his thought process and qualification to hold his position.

All I will say is that there is no way I will ever trust Secretary Clinton… not now and certainly not as someone running for the Presidency. But, if you believe in double standards and hypocrisy, by all means cast your vote for Hillary. Personally, I would much rather vote for someone who believes in self-sufficiency and personal responsibility… but I will settle for Trump.