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John Smith
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lee wrote on Feb 3 rd, 2017 at 10:33am: So having classified material on a personal server, in breach of protocols, of which she is aware, is mere carelessness. Cheesy Cheesy Cheesy yes ... here, because I realised that you are to stupid to do it yourself, I'll help you out. Although in future you will be charged a fee for my time to teach you
Some legal experts say carelessness doesn’t constitute sufficient intent for a prosecutor to bring a case against Clinton.
“There are lots of statutes that deal with the mishandling of classified information, but what they all have in common is that it’s intentionally or knowingly reckless, not careless,” Nancy Gertner, a Harvard Law School lecturer who specialises in criminal law, told Business Insider. “If carelessness were sufficient, we would have indicted half the government.”
Benjamin Wittes, a senior fellow in governance studies at the Brookings Institution, noted on the Lawfare blog that “it’s not uncommon for high-ranking officials to treat classification rules with a lack of deference.”
Gertner made a similar point.
“It would really expose huge numbers of officials to criminal prosecution if we said that carelessness was enough,” she said.http://www.businessinsider.com.au/why-didnt-the-fbi-charge-hillary-clinton-2016-...or perhaps
Relevant law is found in several statutes. To begin with, 18 USC, Section 798 provides in salient part: “Whoever knowingly and willfully … [discloses] or uses in any manner prejudicial to the safety and interest of the United States [certain categories of classified information] … shall be fined … or imprisoned.”
The most important words in this statute are the ones I have italicized. To violate this statute, Secretary Clinton would have had to know that she was dealing with classified information, and either that she was disclosing it to people who could not be trusted to protect the interests of the United States or that she was handling it in a way (e.g. by not keeping it adequately secure) that was at least arguably prejudicial to the safety or interest of the United States.
The statute also provides a definition of what constitutes classified information within the meaning of the subsection described above: “[C]lassified information, means information which, at the time of a violation of this section, is specifically designated by a United States Government Agency for … restricted dissemination.”
Again, the most important words are the ones I have italicized. First, they indicate that the material must have been classified at the time of disclosure. Post hoc classification, which seems to characterize most of the classified material found on Clinton’s server, cannot support an indictment under this section. Second, information no matter how obviously sensitive does not classify itself; it must be officially and specifically designated as such.
Lesser penalties are provided under 18 USC 1924 which provides that an officer of the United States commits a criminal violation if that person possesses classified “documents or materials” and “knowingly removes such … materials without authority and with the intent to retain such … materials at an unauthorized location.”
Prosecutors would also encounter stumbling blocks if they charged Clinton under this law. First, it is unclear whether classified information conveyed in an email message would be considered a document or materials subject to removal. Moreover, with respect to information in messages sent to Clinton, it would be hard to see her as having “knowingly” removed anything, and the same is arguably true of information in messages that she originated. If, however, she were sent attachments that were classified and kept them on her server, this law might apply.
But even if this section did apply, a prosecutor would face difficulties. Heads of agencies have considerable authority with respect to classified information, including authority to approve some exceptions to rules regarding how classified information should be handled and authority to declassify material their agency has classified. It would also be hard to show that Clinton intended to retain any information sent to her if her usual response was to forward the information to another, and if she then deleted the material from her inbox, whether or not it was deleted from her computer.
Where Clinton’s legal position becomes shakier, and where her use of a personal server may enter into the analysis, is with respect to the provisions of Section 32 of the Code of Federal Regulations which provides in Section 2001.42 that persons who have access to classified information are responsible for:
a) Protecting it from persons without authorized access … to include securing it in approved equipment … whenever it is not under the direct control of an authorized person.
b) Meeting safeguarding provisions prescribed by the agency head; and
c) Ensuring that classified information is not communicated over unsecured voice or data circuits
(cont)
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