Comparing Clinton – Email, OPSEC, and Intent

Updated: July 7, 2016


By Lana Duffy

On 5 July, the FBI declared they would not pursue federal charges against Former Defense Secretary and current presumptive Presidential Nominee Hillary Clinton. Despite saying she acted with “extreme carelessness” and a statement which amounted to “she really should have known better,” the Bureau determined charges would not hold. The case now moves to the Justice Department, the parent of the FBI, for final determination of whether charges will be pressed.

This follows on the heels of the findings – or lack thereof – of the multi-year, multi-million dollar Congressional hearings which determined Clinton cleared of deliberate wrongdoing in Benghazi. And the odds on that one, given the number of rehashes and amount of money spent on the partisan-but-not-partisan special committee, were not ever in her favor.

There is frustration, of course. There are those complaining of the astronomical investment dumped into these investigations and hearings, and there are those saying she only got off without charges because of her position. Whether to the taxpayer, to others charged in information release scandals, or to Clinton and her campaign, the only universal cry is that SOMETHING is definitely “unfair.”

I am not a lawyer, but I am an independent voter and currently undecided, so when you combine that with my near-decade of espionage investigations I believe I have a bit of non-biased perspective. So I thought it might be fun to objectively compare this email-gate with some email-gates of (recent) yore, as the internet meme community has seen fit to do:

PATRound 1: General(ret.) David Petraeus: Bring out the big dogs early in the match, why not. Accused of transmitting classified information via an unclassified means to an external party, Petraeus resigned – supposedly in shame into a world of speaking engagements and board seats – after receiving a $100,000 fine and two years probation.

Similarities: Both involved unclassified email use; Both are high-powered individuals in very visible positions and were in very vulnerable positions when the alleged incidents took place. One of the key overseeing prosecutors and a key defense attorney took on major roles in both cases. Neither were whistleblowers.

Differences: The private server was not first devised by Clinton; her predecessors used similar methods (private email addresses, not a server, but still not the proper classification) to converse with staff. Those methods were also not maintained by a 24 hour security system or monitoring, which the user (Clinton and Secretaries prior) was unlikely to know. Petraeus had a precedent as well: his primary technique was adopted from old spy TTPs whereby a draft email was composed and both parties had the password, so nothing “transmitted” to be caught through SIGINT, and able to be deleted, and he also used physical dead drops to hand off notebooks. The Madrid bombers used the same email communication technique, as it turns out… most of Petraeus’s communications on this were part of his affair, but there were documents found that could not be traced to the notebooks. Clinton messages went to aides, authorized to handle levels of information and with reasonable expectation they would not be distributed; his were for a journalist without proper authorization for receipt or storage writing a “tell-all” with recorded intent to publish (Broadwell, the journalist, did not publish any classified and was ultimately not charged after a three-year investigation). Clinton’s emails were retroactively, and in part, classified. Many of Petraeus’s transmittals had and retained classification, as found in 300 files on Broadwell’s laptop and in the notebooks he stated he would and did provide. He also lied to the FBI and later pled guilty; Clinton did neither, as she was not charged.

Round 1 Results: No accurate comparison can be drawn.

SnowRound 2: PVT Chelsea Manning and Edward Snowden.  Embittered and depressed at her treatment from command elements in the Army, PVT Manning released years of information of varying levels of classification to Wikileaks. Meanwhile Edward Snowden traveled from his contracting job with Booz Allen Hamilton to China where he met with reporters to release thousands of classified documents he deemed defining of various government abuses.

Similarities: Both Snowden and Manning’s cases turned into “ends justifying means” as a part of the defense. Snowden has a devout following after releasing information on surveillance and drones that demonstrated violence, extreme measures, and innocent lives lost. Manning retains sympathy for depression and foul treatment of being transgender, and because apparently “nothing he released got anyone killed” (a statement that is unfounded but oft-repeated). Clinton’s preliminary case is also somewhat based on the ends, with the trigger being the Benghazi investigation that also brought no charges (though did identify significant faults in DoD and DoS as well as other Alphabet Soup agencies). Well, I guess everyone failed everyone.

Differences: Before the scandals, Snowden and Manning were not household names. Both Snowden and Manning were defined as “whistleblowers”. Snowden and Manning both released information to reporters with intent for the information to get to the general and international public (both used international means to commit their offense). Neither attempted proper channel resolution to their concerns. Both released labeled and known classified information indiscriminately. I could go on, but you get the picture. Comparing these cases to that of Clinton borders on the absurd, though we all know that won’t stop the memes.

Round 2 Results: Again, no comparison can be drawn.

mailRound 3: Retired CIA Director John Deutch. Who remembers this one from 1996? Stored information on a borrowed and unclassified computer in his home, information that was classified up to TOP SECRET, a computer that his family used to connect to the internet (likely via an unsecured dial-up and, lord help us, AOL or Prodigy). He ultimately negotiated a plea deal to misdemeanor, apologized, and ultimately was pardoned on the last day of the (Bill) Clinton presidency.

Similarities: Finally a (relatively) similar case. Here we have a CIA director (power equivalency) using government-issued property (the computer and Clinton’s home server) stored in the family home to process information. In both cases the assumption on the part of the US government was the information processed would be unclassified. Womp womp.

Differences: Deutch did not transmit the information (sending an email with an attachment in 1996 was a project anyway, trust me): he used memory cards and hard drives. However, he knew the information was TOP SECRET when he brought it home as it was marked, similar to the Petraeus and other cases, and there was no question of retroactive classification. He also pled down and then plead guilty.

Round 3 Results: These cases are reasonably similar, and may be a bit more comparable since neither one had intent to publish information, etc. With the misdemeanor charge and the ultimate pardon for Deutch, the FBI declining to press charges for Clinton may actually seem a bit less absurd and aggravating (despite the howling that it was Bill Clinton who pardoned Deutch, and thus the conspiracy flame sparks anew).

We could go on and on. There’s the recent military cases of the Major who sent the follow-on unit information known to be classified over unsecured email to warn them of a suspect who is now fighting decommission and forced exit from the Marines, or of the Naval Reservist found with classified materials in his home with no declared intent to distribute who was fined $7,500 and is barred from further clearance issue.

The point remains that each case, when taken in actual comparison to the current Email-Gate, only proves that Title 18 of the United States Code – the section which details espionage and related security concerns regarding information handling – is complex and depends on a variety of circumstances. To say whether Clinton was in violation of a part of the code is difficult without all the facts presented, which none of us have. To say that she is receiving leniency or scrutiny when compared to other cases is also difficult when the nuances making up each case are what determine the final violation, and those nuances are what appear to be different between the Clinton case and the comparative cases.

shutterstock_448414321There are also accusations of Trump raping an underage teen which is notably not discussed in media and the former House Speaker Hastert who was convicted for sexually abusing multiple underage boys and only received 15 months and a fine and, and, and… Meanwhile, FBI isn’t even the final determination for Clinton, the DoJ is. So calm the rage and remember the facts: Hillary did mishandle information later defined as classified. But the complexity of the code means we cannot barracks lawyer this one, regardless of our previous or current jobs or how other cases appeared to go. Declining to press charges is not the indicator of conspiracy; in fact it appears to flow with the previous cases.

So let’s observe that the insanity of corruption, the ability for leaders to commit such acts on all sides is repulsive, and so on is a much bigger problem that needs to be solved, and your memes of inaccurate comparisons of apples to oranges is not the way to go.

As much as it pains some of us, can we leave the memes to the Cats of the Internet and the deliberations to those in possession of the minutia? At least until more is known? Please?



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