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 DC 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 Petreaus) or ingratiating oneself to one’s mistress (Petraeus) – face career destruction, though they are usually spared if they are sufficiently Important-in-DC. For low-level, powerless Nobodies-in-DC, 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., she never sent classified information over her personal email account and that she 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 e-mail 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.