Handling of Classified Information – Saucier vs Clinton

References:  Saucier’s Government Sentencing Memorandum
Statement by FBI Director James B. Comey on the Investigation of
Secretary Hillary Clinton’s Use of a Personal E-Mail System

The Accusations:

Saucier – Took, using his cell phone, retained, and displayed to several friends six photographs of the interior of the nuclear attack submarine U.S.S. Alexandria which included images of equipment classified Confidential.  For this he was charged with violation of 18 U.S.C. § 793 Gathering, transmitting or losing defense information, subparagraph (e)

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

His phone was found “sitting on top of a heap of demolition trash in a dumpster that was flush with the ground” and subsequently turned over to NCIS.

After being interviewed by NCIS he destroyed his laptop computer, a camera and memory cards for the camera.  He also surreptitiously disposed of these devices.  For this he was charged with one count of obstruction of justice, in violation of 18 U.S.C. § 1519.

Clinton – Maintained a private e-mail server which contained Classified Material and exposed the material to individuals not cleared for such information.  The server contained e-mails related to her official duties as Secretary of State and should have been turned over when she left office, IAW the Federal Records Act.

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.

Seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails)

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.

When confronted with her failure to comply with the Federal Records Act (FRA) she had her uncleared lawyers and staff determine which e-mails were subject to FRA.  These were returned to Department of State and the computer’s hard drive and all backup copies were destroyed.

If it is ever determined that any classified material was destroyed a charge of obstruction of justice, in violation of 18 U.S.C. § 1519 will be appropriate.

This appears to be a violation of the same 18 U.S.C. § 793 Gathering, transmitting or losing defense information, but subparagraph (f) vice (e).

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.

Adjudication

Saucier – Under threat of 63 months in jail Saucier agreed to a plea agreement pleading guilty to one count of unauthorized retention of defense information in violation of 18 U.S.C. § 793(e), resulting in a one year jail sentence and three years probation.

Clinton – Comey concluded “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. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.”

Discussion

Harm to National Security

Saucier – Saucier took 12 photos of the engine room, of a 19 year old submarine, 6 six were subsequently classified confidential.  To wit:

1) photograph  of the Reactor Compartment as viewed through one of its two existing portal windows. The Reactor Compartment is the room within the engine room where the nuclear reactor is located that creates the power to operate and propel the submarine. The Reactor Compartment is normally closed and specific authorization is required to enter this compartment. The submarine has two portals through which the Reactor Compartment can be viewed. These portals are small, round yellow-tinted windows that are not designed to open and exist solely for viewing the Reactor Compartment.

2) photograph of the auxiliary steam propulsion control panel. The auxiliary panel is a secondary panel that controls the steam propulsion plant, which controls the overall propulsion of the boat. The information contained on this panel also appears in the maneuvering compartment, but with more detail.

3 & 4) photos that capture the entire maneuvering panel within the Maneuvering Compartment. The Maneuvering Compartment is the area where the nuclear, steam and electrical systems of the submarine are monitored and controlled. It is the nerve center of the vessel. The two photographs, viewed together, provide a panoramic view of the maneuvering panel and are so clear that a person could read the gauges and determine the condition of the submarine when the photos were taken. The location of the submarine could also be determined after examining the photographs. From these photographs an engineer could determine significant design characteristics of a U.S. nuclear submarine, including its reactor plant.

5 & 6) photos that depict a panoramic view of the Reactor Compartment and a close-up view of the reactor itself. These photographs provide substantial design information about the reactor core as well as the reactor plant. Contrary to the photograph of the Reactor Compartment taken in January, which was taken through the reactor compartment portal, these two photographs are crystal clear as they are taken from inside the Reactor Compartment itself. Moreover, the vantage point of the photographer shows that the defendant was in a corner of the compartment from which he could not be seen by those outside of the compartment.

These were disclosed to:

  1. individual who found the phone
  2. a retired Navy Chief, who recommended he contact NCIS
  3. four separate unrelated witnesses made sworn statements that not only had they seen the photographs, but that Saucier admitted to having taken them.
  4. a shipmate who was his roommate
  5. his wife
  6. a live-in girl friend after his divorce
  7. a shipmate who was present when Saucier took two of the pictures.

In their hardball case, put forward to get the plea, the government also implied that he may have passed the photos to a foreign agent, in the “more than an hour” he was separated from his wife on a trip to Mexico and had the phone with him.

Saba and Saucier went on a trip to Cancun in December 2009. The trip was Saucier’s idea and he brought his LG Phone with him on the trip. (The LG Phone did not have an international calling plan and could not make or receive calls while in Mexico; the couple also brought a camera with them.) Moreover, according to Saba, Saucier spent more than an hour away from her one day during the trip and took his LG Phone with him. According to Saba, she and Saucier had signed up for a parasailing trip, which was cancelled due to weather. Saucier left Saba for more than an hour to allegedly find an alternative group with whom to do the trip.

Note: anyone who has traveled to a foreign country knows that you can use a phone anytime you have a Wi-Fi connection.

It should also be noted that two fellow sailors were reprimanded and forfeited $560 in pay, for taking photographs in the engine room.  One was also demoted and the other passed over for next promotion.

Clinton – Had 2110 e-mails that were classified at levels up to Top Secret, Special Access Programs.  Of those 110 were determined to be classified at the time they were sent or received, 2000 were up-classified to confidential subsequent to being sent or received.

The FBI did not document the number of unauthorized individual who had access to this system, but there were at least four individual who had administrative privileges to the server, in addition to the lawyers and their staff.

There was at least one documented attempt to hack the server, but the FBI concluded

With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.

Comey also commented:

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.

Unless all 2110 emails were sent by Secretary Clinton there should also be charges of violation of subparagraph (f) levied against the sender for knowingly sending classified material to an un-secure server.

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