2016 Postmortem
In reply to the discussion: The investigation into Clinton's email server is very real. [View all]leveymg
(36,418 posts)Last edited Wed May 4, 2016, 10:46 AM - Edit history (3)
information security requirements. She received explicit warnings from NSA about the vulnerability to hacking of her hand held. Not only did she continue to use the Blackberry in spite of this warning, she arranged to have that device connected to an uncertified server, which made her communications even more vulnerable to interception. She understood that she was defying NSA. That provides the element of guilty knowledge, or mens rea, that some courts have held is a requirement to conviction under 793(e) for unauthorized transmission or retention of classified information.
Subsection (e) makes the following acts a felony. Note that the courts have held there are two types of classified materials referenced, tangible documents and intangible information. The distinction is important, as will be explained below:
(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;
Her actions show general mens rea, or guilty knowledge, that what she was doing could "be used to the injury of the United States." Note that is different from a more specific intent to injure the United States, which is not a requirement under this subsection. Nonetheless, mens rea is a requirement under one line of legal interpretation for conviction for sharing intangible (unstamped) classified information under 793(e). The same line of interpretation distinguishes marked documents from unmarked (intangible) information in the following fashion, according to a government Motion filed in a recent Sec. 793 case: US v Hitzelberger, Case 1:12-cr-00231-RC Document 51 Filed 04/05/13, .pdf
Meanwhile, this same reasoning is reflected in a filing in the Manning case. A Government brief observed on the topic of what it takes the phrase "reason to believe" to mean, as used in Sec. 793(e): http://s3.documentcloud.org/documents/715582/ae-509-government-targeted-brief-reason-to.txt.
required to prove that the accused had reason to believe the
information "could be used to the injury of the United States"
when the accused had unauthorized possession of any "document,
writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or
note relating to the national defense." See 18 U.S.C. § 793(e). In
other words, the "reason to believe" scienter requirement only
applies to intangible information relating to the national defense,
not the tangible items listed above. See United States v. Kiriakou,
2012 WL 4903319, at *1 (E.D. Va. Oct. 1 6, 2012) ("Importantly, §
793 [e] differentiates between 'tangible' NDI, described in the
'documents' clause ( 'any document, ... or note relating to the
national defense'), and 'intangible' ND I, described in the
'information' clause ('information relating to the national
defense')." ; United States v. Rosen, 445 F. Supp. 2d 602, 612
( E.D. Va. 2006) ("Second, Congress expanded the category of
what could not be communicated pursuant to § § 793(d) and (e) to
include 'information relating to the national defense,' but modified
this additional item by adding a scienter requirement...." .
However, the courts have differed on the strict scienter requirement for a 793(e) conviction as found in the 2006 Rosen decision. According to the Congressional Research Service: Criminal Prohibitions on the Publication of Classified Defense Information, Jennifer K. Elsea, Legislative Attorney (September 9, 2013):
the Rosen case cast doubt on the district judges interpretation).
Furthermore, HRC should have reasonably known that she was violating Sec 793(e) by willfully allowing her email system to be a conduit for the swapping and storage of classified materials in violation of the terms of her Classified Information Nondisclose Agreement signed by her on January 22, 2009, which states at Paragraph 1:
Given the sheer volume of classified materials found on her uncertified server, more than 2000 with 104 originating with her, and that 22 were classified Top Secret, she meets the standards for prosecution under USDOJ and JAG guidelines.
In addition, this pattern of willful evasion of the law in concert with others establishes scienter, or willful intent, for an additional conspiracy charge under 793(g), the next relevant subsection of 793: