Buried beneath the unusual number of breaking news events happening simultaneously are the evolving storylines of four Americans who have run afoul of the Country’s espionage laws. While each case differs in its particulars, as well as its current disposition in the legal process, there is a common thread among them: their principles are all traitors.
Chelsea Manning – This is the only one of the four cases which has completely run its course through the legal system. Manning was arrested in 2010 for stealing classified information relating to airstrikes in Baghdad and Afghanistan, diplomatic cables, and Guantanamo Bay files and passing it all to WikiLeaks. At the time, Manning was Private Bradley Manning on active duty in the US Army. Charged with committing 22 separate crimes, Manning was convicted of 21 of these offenses (4 of them having been modified from their original form). She was acquitted of one charge, aiding the enemy, which could have resulted in the death penalty. Manning was sentenced to 35 years in a maximum security prison. Inexplicably, and without any justification, President Obama commuted Manning’s sentence during his last days in office after Manning had served only 7 years.
Manning made news recently when she was offered a position as a visiting fellow at Harvard University’s Kennedy School of Government. Harvard, currently being sued for discrimination against Asian-American applicants, plugged their offer to Ms. Manning as stemming from her advocacy for queer and transgender rights and as notable for Ms. Manning’s status as their first transgender fellow. They only briefly mentioned her conviction. Harvard might have benefitted from a reading of Manning’s crimes before offering her such a lofty and public position in their blind pursuit of hyper-diversity. They were subsequently forced to withdraw their offer to Ms. Manning after an embarrassing backlash and resignations from other high-profile fellows. Harvard apparently had no clue, or didn’t care, that they were embracing a convicted traitor.
Edward Snowden – In contrast to the above, his is the only one of the four cases where no legal proceedings have actually begun, although espionage charges were filed in 2013. This is because Snowden fled the country immediately after his crime and has been able to maintain asylum in Russia ever since. His is the most destructive and grievous case in this group. In 2013, Snowden, a defense contractor with a Top Secret Special Intelligence security clearance, stole thousands of the nation’s most highly classified documents (in digital form) while working in an NSA facility. After fleeing the country, he passed his bounty to a media outlet who published the content in bits and pieces over time.
While Snowden may have found a bit of sympathy (or at least a non-hostile attitude) from a hypothetical “President Hillary Clinton”, he is unlikely to receive any favors from President Trump. There is debate as to whether Snowden would be eligible for the death penalty if returned to the US and found guilty of his crimes. Those believing he should get the death sentence include the current CIA director and at least one former CIA Director. These intelligence experts are convinced the information Snowden exposed put the lives of many professional intelligence officers in grave danger. His extradition to the US could potentially be used as a bargaining chip in some future US-Russia agreement.
Reality Winner – This is the most recent case of the four and the only one in which the subject is presently behind bars. We wrote about the details of this case in a previous post – A Dose of Reality. While Ms. Winner’s stolen data contains the smallest amount of damaging information of the four cases outlined here, her transgression comes at a time in history when damaging leaks to the media from inside the government have spiraled out of control and a harsh example needs to be set. Ms. Winner, who like Snowden held a Top Secret Special Intelligence clearance, stole only a single classified document which she leaked to the press, but she was caught “red-handed” so to speak. Her trial starts on October 23, 2017 and should be both informative and predictive of what may be in store for Edward Snowden at some point in the near future.
The intriguing part of this case is not Ms. Winner’s guilt in the matter – the evidence is overwhelming and she admitted her crime to the FBI when she was arrested. Her punishment will be the interesting part. She is being portrayed as a naive young woman who got in over her head and didn’t realize the gravity of what she’d done. We’re not falling for it. Ms. Winner completed numerous training classes on the handling of classified material as well as the laws and penalties associated with mishandling such material. Ms. Winner signed documents stating she would never disclose classified material to unauthorized persons or remove it from a secure facility. Additionally, Ms. Winner was a six year Air Force veteran and was quite familiar with the special rules and regulations when dealing with classified information. She can receive a maximum of 10 years for her crime and she should serve every second of it.
Hillary Clinton – We know what you may be thinking – why does she belong with this group? Simple – like the three people above, she violated one of the provisions in the Espionage Act. Specifically, 18 US Code 793 section F1. Unlike the three cases above, Mrs. Clinton did not directly pass classified information to a media outlet or unauthorized person. What she did do was set up a non-secure computer in her home where the FBI discovered national security information in the form of highly classified emails. Ms. Clinton’s home is not a secure government facility, nor is her personal computer a government authorized storage device for classified emails. National security information is so sensitive that even an accidental disclosure due to negligence is a crime under the Espionage Act and punishable with jail time. Ms. Clinton’s defenders claim she did not actually commit a crime because unlike the three people above, she had no “intent” to expose national security information. The problem with this defense is that the cited section of the Espionage Act is quite clear and unambiguous: negligence is a distinct element of the statute as a prosecutable offense. There is no requirement for or connection to “intent”. Lack of intent is not a legitimate defense. FBI director James Comey himself outlined the wealth of evidence of negligence on the part of Ms. Clinton in July of last year. In his own words, she and her colleagues were “…extremely careless in their handling of very sensitive, highly classified information”. Nevertheless, Comey decided not to prosecute, claiming “…no reasonable prosecutor would bring such a case”. The word “reasonable” in this last statement, rather than referring to the strength of the case, more likely meant that no federal prosecutor was brave enough to take on the presumptive President Hillary Clinton. At the time, she was leading in all polling and was to become the “boss” of those who would be prosecuting her.
After the inauguration of President Trump, there was an expectation that the new leadership in the Justice Department would now pursue this case. That has not happened, and is one of several reasons the current Attorney General should be replaced. While a crime of negligence regarding national security information may be less severe than a crime of intent to betray the country, it is still a crime under our laws. The devastating effects of disseminating highly classified information are no less severe in the case of negligence versus intentional broadcast. In addition, this case is unique among the above three in that the subject is a high profile public figure and is looked to by many as a role model and example-setter. The case cannot and should not end with no consequences for the crime simply because the subject is politically powerful and well-known. We still anticipate legal action on this case, but it will likely need to be preceded by the appointment and confirmation of a new Attorney General.
1 18 US Code 793 section F – “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.”