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leveymg

(36,418 posts)
185. You're calling it a "mistake", whereas the evidence shows she set up her server as an end-run around
Tue May 3, 2016, 05:46 PM
May 2016

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

Section 793(e) differentiates between “tangible” information, i.e., the laundry list of items in the statute and “intangible” information, i.e., knowledge. For intangible information, the government must also prove mens rea: that “the possessor has reason to believe (the intangible information) could be used to the injury of the United States or to the advantage of any foreign power. 18 U.S.C. § 793(e). The House Committee, in its report on § 793(e) in connection with the 1950 revision of the Espionage Act, explained that this qualifying language addressed concerns that the category of illegally communicated intangible information was potentially overbroad. H.R.Rep. No. 647, 81st Cong., 1st Sess. (1949), at 4. The Committee left it to the courts to define this limiting phrase on a case-by-case basis, but stressed that the “qualification [was] not intended to qualify the other items enumerated in the subsections.” Id. (emphasis added). Accordingly, the government must address the limiting phrase only where the information at issue is intangible.



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.

under 18 U.S.C. § 793(e), the Government is not
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').&quot ; 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....&quot .


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):

ftn. 115 - See United States v. Drake, 818 F. Supp. 2d 909, 916 (D. Md. 2011) (distinguishing intent requirements between disclosures involving tangible documents and those involving intangible information); United States v. Kiriakou, 2012 WL 4903319 at *3-5 (E.D. Va. October 16, 2012) (surveying case law and noting that 4th Cir. interlocutory appeal in
the Rosen case cast doubt on the district judge’s 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:

"For the purposes of this Agreement, classified information is marked and unmarked information."

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:

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
It's about creating a new right wing fake sufrommich May 2016 #1
Just as I suspected Fawke Em May 2016 #3
The FBI has to investigate the charge,no sufrommich May 2016 #6
See post #10. People have lost their^ for less..... Land of Enchantment May 2016 #13
No, they haven't. zipplewrath May 2016 #66
You ever had a Q Clearance? Land of Enchantment May 2016 #130
Yes I do zipplewrath May 2016 #143
This was started by Obama's State Department Ash_F May 2016 #25
Is there any real doubt that laws and policy were violated? TipTok May 2016 #37
Exactly zipplewrath May 2016 #67
If laws were violated... scscholar May 2016 #129
False on its face... TipTok May 2016 #133
Are you aware that DOJ told the FOIA court last week that a referral (case) is forthcoming JudyM May 2016 #182
It is serious but it's the DOJ that can prosecute and will they is the question because the FBI bkkyosemite May 2016 #102
what's as obvious as the nose on my face AgerolanAmerican May 2016 #47
It is impressive. deathrind May 2016 #84
Believe what you want. Reality has a way of rearing its ugly head when you least expect it. bjo59 May 2016 #51
You don't put out a fire... dchill May 2016 #107
Now *that has always been true. nt silvershadow May 2016 #152
If you have read up on the facts and still say this then your nose is surely a foot long, unless you JudyM May 2016 #181
Wave after wave of trouble is headed her way. yourpaljoey May 2016 #2
If she securs the Nom they will pull the trigger Ferd Berfel May 2016 #44
That's what I fear. bjo59 May 2016 #54
agree - I've said many times that they will wait until it's too late Ferd Berfel May 2016 #55
I honestly believe that as well. Puglover May 2016 #118
Her goose is cooked madokie May 2016 #128
I must admit, I am a little scared yourpaljoey May 2016 #136
No it didn't, but Clinton isn't in this for the good of the country is she?! haikugal May 2016 #151
She will ruin us all to get what she wants yourpaljoey May 2016 #168
WOW, you win the Spiro Agnew prize for alliteration tularetom May 2016 #4
My thought exactly! Loved it! lagomorph777 May 2016 #125
GMTA farleftlib May 2016 #186
Ill-informed desperate gibberish keeps on a'flowin from Camp Sanders Tarc May 2016 #5
Wrist slaps as a result of indictments/convictions. HooptieWagon May 2016 #7
Even indictment of staffers would be bad unc70 May 2016 #48
In the unlike chance that actually happened, it still won't put the Bern in the White House, bro Tarc May 2016 #52
No one can predict the resolution of chaos,... HooptieWagon May 2016 #99
You point to conspicuous weaknesses in our system as justification for perpetuating them RufusTFirefly May 2016 #8
Petraeus pled down from 793, a felony, to 1924, a misdemeanor. Berger also pled guilty to 1924. leveymg May 2016 #19
And don't forget this: Fawke Em May 2016 #28
Not just from Camp Sanders, as Bernie Sanders correctly dismissed it as crap The Second Stone May 2016 #50
Neither one of them that you mention were SOS head of handling all secrets for the security of bkkyosemite May 2016 #116
Since nothing was classified at the time, it hardly matters. Tarc May 2016 #120
Really? The State Department disagrees Bob41213 May 2016 #187
Yes, really, Mr. Cherry-Picker Tarc May 2016 #189
Message auto-removed Name removed May 2016 #117
If you had an ounce of reading comprehension skills timmymoff May 2016 #166
The Indictment Fairy isn't going to deliver you the nomination, bro Tarc May 2016 #169
ain't seeking indictment nor someone to vote for president. timmymoff May 2016 #188
Don't lie and backpedall when caught, kiddo Tarc May 2016 #190
Show me once where I mentioned indictment timmymoff May 2016 #191
Kickin' with gusto! Faux pas May 2016 #9
People have lost their livelihoods and freedom for less.... Land of Enchantment May 2016 #10
Bull Hockey zipplewrath May 2016 #18
people knowingly and intentionally mishandled clasified information, despite knowing they should not pdsimdars May 2016 #93
No one has made that claim yet zipplewrath May 2016 #148
I believe the Justice Department has a better handle on these things than you do.[n/t] Maedhros May 2016 #113
How many indictments? zipplewrath May 2016 #147
The FBI is conducting an investigation - this is fact. Maedhros May 2016 #149
They conduct alot of investigtions zipplewrath May 2016 #150
I work with the FBI. They investigate cases I bring to them, sometimes. Maedhros May 2016 #158
You are grossly mistaken zipplewrath May 2016 #173
Indeed. The Clinton Machine... NewImproved Deal May 2016 #179
The Indictment Fairy laughs at this! NurseJackie May 2016 #11
Proving my point: You don't know jack about what you're talking about. Fawke Em May 2016 #30
That for which you wish will never happen. NurseJackie May 2016 #33
You're wrong zipplewrath May 2016 #12
I don't believe the defense of "I didn't know it was classified material" will wash. rhett o rick May 2016 #23
No one would be prosecuted zipplewrath May 2016 #59
Where I worked, if you mishandled classified material you'd lose your security clearance rhett o rick May 2016 #68
Intentionally zipplewrath May 2016 #72
What about if you intentionally, using a private server, converse with someone like polly7 May 2016 #73
Showing poor judgement zipplewrath May 2016 #75
He was being paid by her Foundation at the same time, right? polly7 May 2016 #77
Because it's not zipplewrath May 2016 #79
How could he have fired her if he didn't know about it? nt. polly7 May 2016 #97
That is a problem zipplewrath May 2016 #100
She exposed state secrets at the highest level, people's lives were in jeopardy because of what pdsimdars May 2016 #101
She did not zipplewrath May 2016 #103
Did she report Blumenthal as Sec 793 requires? No. leveymg May 2016 #165
And when was the last time someone was prosecuted? zipplewrath May 2016 #174
You don't know what you are saying. I'd suggest you talk to someone who is an intelligence pdsimdars May 2016 #95
If one handles classified materials they are trained to recognize it. "I didn't know it was rhett o rick May 2016 #121
It is not "acceptable" zipplewrath May 2016 #144
you know what it is *not a long way from, though? Dragging my good name silvershadow May 2016 #153
Been there, done that zipplewrath May 2016 #184
We do, all the time zipplewrath May 2016 #145
You are looking at your candidate's actions through rose colored glasses. Maedhros May 2016 #115
Here's some of the language of the statute that may have been violated: CentralCoaster May 2016 #91
You know what I admire about the Clinton's? FlatBaroque May 2016 #27
Waterboard a Word!!! Getting up off the floor... Land of Enchantment May 2016 #64
Her server wasn't approved for use. Fawke Em May 2016 #31
That's not the story being told zipplewrath May 2016 #57
Ask General Pitreas about that. pdsimdars May 2016 #104
He did it intentionally zipplewrath May 2016 #105
So did Clinton. She set up an unsecured private server and used it the entire time she was SOS. haikugal May 2016 #157
No zipplewrath May 2016 #172
The information was clearly marked and she told them to take the classification off and send to her haikugal May 2016 #178
Actually, what she said was zipplewrath May 2016 #183
Conviction under Sec. 793 requires neither intent nor actual harm. Mishandling is enough. leveymg May 2016 #42
Necessary, but not sufficient zipplewrath May 2016 #63
She did it despite and in spite of being told not to use her Blackberry. She's in serious trouble leveymg May 2016 #87
So far you have nothing zipplewrath May 2016 #98
There is no confusion about what is classified and not. That is a typical Clinton red herring pdsimdars May 2016 #106
Everything you have posted so far is misinformation or disinformation. leveymg May 2016 #111
Sorry, it doesn't work that way. zipplewrath May 2016 #146
Petraeus was allowed to plead down to a different charge, Sec. 1924. leveymg May 2016 #163
"Allowed" zipplewrath May 2016 #176
You're calling it a "mistake", whereas the evidence shows she set up her server as an end-run around leveymg May 2016 #185
That's a heck of a deduction on your part zipplewrath May 2016 #192
The intent is clearly on the face of the acts in evidence. leveymg May 2016 #193
Not to a prosecutor zipplewrath May 2016 #194
Under the Espionage Act, stupidity is a crime. One does not have to intend to harm the US or leveymg May 2016 #195
In a court of law zipplewrath May 2016 #196
I might agree, if she hadn't herself posted classified info or encouraged Blumenthal to do so. leveymg May 2016 #197
Intent zipplewrath May 2016 #198
Her use of a private server was supposedly "approved" for use. frylock May 2016 #76
Her testimony zipplewrath May 2016 #78
I hope the response satisfies your request Capt. Obvious May 2016 #85
Absolutely! frylock May 2016 #124
There is no link because that never happened. leveymg May 2016 #90
^^^^^^^^^^^ Amen! ^^^^^^^^^^^ pdsimdars May 2016 #108
So many, many, many good reasons to reject Hillary Clinton. Scuba May 2016 #14
Can you imagine how enthusiastically she will be supported? nt silvershadow May 2016 #154
Well, I do see the Republicans drooling at the chance to vote against her. Scuba May 2016 #156
Kicked and recommended. Uncle Joe May 2016 #15
good god...not this fucking shit again Sheepshank May 2016 #16
I see you also know little about cyber security. Fawke Em May 2016 #32
Naw, just living in the Clinton Bubble. She who can do no wrong. libdem4life May 2016 #41
Reccing for the alliteration alone. NV Whino May 2016 #17
Where is the alliteration? DemocratSinceBirth May 2016 #20
Cute.😏 NV Whino May 2016 #86
Thanks, been trying to put that together myself nadinbrzezinski May 2016 #21
I'm now in the middle of reading the medium version timeline and this is worth bookmarking. Uncle Joe May 2016 #22
It just remind me of the tea baggers and climate change denial. . . . the refuse to accept facts. pdsimdars May 2016 #24
GOP central Jackie Wilson Said May 2016 #26
The dude who wrong the definitive guide to the 9/11 timeline... Fawke Em May 2016 #35
Endless attacks of HIllary is GOP central. You may not even know you are doing it. Jackie Wilson Said May 2016 #36
Poor Hillary. frylock May 2016 #81
Recommend.... KoKo May 2016 #171
I realize Bernies supporters wish this would turn into something. griffi94 May 2016 #29
What Bernie supporters do not want is Clinton elected to a term of eternal impeachment proceedings. peace13 May 2016 #34
And yet FAR better than ANY con, right? Jackie Wilson Said May 2016 #39
It is senseless to vote for someone with these problems. peace13 May 2016 #49
I thought the last Clinton administration was a success griffi94 May 2016 #43
A success? For who? Apparently you did not live through that era, I did. Land of Enchantment May 2016 #58
I'm 53 griffi94 May 2016 #62
that's bullshit jcgoldie May 2016 #70
DOMA, DADT, NAFTA zipplewrath May 2016 #74
"failed economic policies" jcgoldie May 2016 #80
Hellloooooo... Land of Enchantment May 2016 #88
The instablity was clearly there prior however zipplewrath May 2016 #89
What you don't seem to understand is that investigations aren't like they are on TV. Fawke Em May 2016 #38
What you don't seem to understand griffi94 May 2016 #46
The overwhelming majority of Democratic voters are going to be in for quite a shock.. frylock May 2016 #82
That's not going to happen griffi94 May 2016 #83
LOL, now THAT is funny! Land of Enchantment May 2016 #96
Hillary is leading Bernie griffi94 May 2016 #109
Yep. frylock May 2016 #123
And yet she's blowing everybody else away griffi94 May 2016 #127
Can't imagine how the former First Lady who has the entire Party structure backing her.. frylock May 2016 #131
More people like her is all griffi94 May 2016 #132
Yeah, that must be it. frylock May 2016 #137
I really don't see a mystery griffi94 May 2016 #138
Good thing only Democrats get to vote in the GE. frylock May 2016 #139
That's not true griffi94 May 2016 #140
maybe the "powers that be" don't want Bernie. virtualobserver May 2016 #40
I have also thought this. pdsimdars May 2016 #110
In the Land of Enchantment where facts become attacks. LOL. n/t libdem4life May 2016 #45
Benghazi Benghazi Benghazi whitewater whitewater whitewater beachbumbob May 2016 #53
Hillary's Comment - "You Mean With a Cloth?" gordyfl May 2016 #56
And I saw a couple of people report that at the time she was reading a book about how to pdsimdars May 2016 #112
Oh it's real enough. They've used this trick to knock out a few small fry. ucrdem May 2016 #60
Any second now!!!!!!!!!!!! JoePhilly May 2016 #61
Frog marched zipplewrath May 2016 #65
I think we have a bit more waiting to do actually nt NWCorona May 2016 #94
Of course it is real. The Fox News spin, not so much. emulatorloo May 2016 #69
Hillary Supporter thinks Paul is a Freeper looking only to sell books. frylock May 2016 #71
Trashed Bayard May 2016 #92
As soon as the FBI makes an annuoncement about it, the feeding frenzy will begin pdsimdars May 2016 #114
Nor is it a secret for our primary voters. n/t pampango May 2016 #119
The new version of the truthers Progressive dog May 2016 #122
Denial will work fine until the FBI reports. Waiting For Everyman May 2016 #126
No Demsrule86 May 2016 #135
So we post the entire Thompson piece ...a Bernie supporters opinion Demsrule86 May 2016 #134
Remember that FBI lawsuit against Apple? The one that crashed and burned? ucrdem May 2016 #141
Absolutely true Demsrule86 May 2016 #170
Nu uh. seabeyond May 2016 #142
Old liberal that I am Whimsey May 2016 #155
Oh, look, another one. Maedhros May 2016 #159
Really? Whimsey May 2016 #161
It wasn't the same they used email she used a private server..completely different. I think they haikugal May 2016 #160
You are wrong. Whimsey May 2016 #162
I not using a keyboard so I shorten things for my own comfort...it's really none of your business. haikugal May 2016 #164
BS Whimsey May 2016 #167
Lol 33 posts. Guys I think they are correcting the record over here. DFab420 May 2016 #177
What Rice and Powell did 2cannan May 2016 #180
Yawn. Scurrilous May 2016 #175
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