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In McGuinness, the U.S. Court of Military Appeals rejected the defendant’s claim, and it did so in a way that is instructive for our purposes. The judges explained that in Section 793 (part of the codification of the Espionage Act of 1917), Congress sought to establish a sliding scale of violations involving the mishandling of classified information.
* - The first subsection – Sec. 793(a) – requires proof of “intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”
* - Subsequent subsections – Sec. 793(d) and (e) – “require only that the accused act ‘willfully’” (i.e., in violation of a known legal duty, but not necessarily with intent to harm the U.S.).
* - Finally, the court turned to the subsection at issue in Mrs. Clinton’s case: “Section 793(f) has an even lower threshold, punishing loss of classified materials through ‘gross negligence’ and punishing failing to promptly report a loss of classified materials.” (Emphasis added.)
Note that the judges matter-of-factly endorse Congress’s framework: There is no hint of a problem with the concept of employing the criminal law to punish a related series of national security offenses from the most serious, involving intent to harm the United States, down to the least serious, involving gross negligence. Within that framework, the court rejects the claim that the less serious offenses require proof of the higher criminal intent called for in the more serious offenses.
Read more at: www.nationalreview.com...
Only one person has even been charged under a gross negligence theory: FBI Agent James Smith. Smith carried on a 20-year affair with a Chinese national who was suspected of spying for Beijing, and Smith would bring classified material to their trysts, behavior far more reckless than anything Clinton is accused of. But Smith was not convicted of violating 793(f). He struck a plea agreement that resulted in a conviction to the lesser charge of lying to federal agents. Smith was sentenced to three months of home confinement and served no jail time.
Justice Stanley Reed wrote the majority opinion and disagreed that the law was unconstitutionally vague, but only on the very narrow grounds that the law required “intent or reason to believe that the information to be obtained is to be used to the injury of the United States.” Only because the court read the law to require scienter, or bad faith, before a conviction could be sustained was the law constitutional. Otherwise, it would be too difficult for a defendant to know when exactly material related to the national defense. The court made clear that if the law criminalized the simple mishandling of classified information, it would not survive constitutional scrutiny, writing:
The sections are not simple prohibitions against obtaining or delivering to foreign powers information… relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.
In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f).
2004 Plea Agreement
Smith pleaded guilty to a charge of falsely concealing his alleged affair with Katrina Leung, from the FBI. He was sentenced to three months' home confinement for lying to the FBI about his affair. He also was ordered to perform 100 hours of community service. The plea allowed Smith to avoid prison time. Prosecutors also agreed to drop three other charges, including two counts of gross negligence in his handling of national security documents.
They both follow the exact same federal laws concerning classified information.
Go ahead... as you like to say.......show me 1 case where someone was prosecuted in the military for classified information that was not charged for being in violation of one of the existing federal laws.
originally posted by: luthier
The head of the fbi could have been compromised by the doj but he isn't in power.
Standing by for what more fox facts?
In questioning by Congressman Trey Gowdy (R., S.C.), Director Comey seemed to concede that the statute criminalizing the mishandling of classified information through gross negligence may well be constitutional. That cuts against his testimony throughout the hearing, during which he argued that prosecuting a serious offense without requiring proof of an intent to cause harm would violate American tradition and, quite possibly, the Constitution. The director maintains, however, that using the statute to prosecute Mrs. Clinton would be inappropriate even if the statute is valid. This, he reasons, is because the statute has only been used once since its enactment in 1917. The idea is that using it against her would amount to unlawful selective prosecution. I am puzzled by this argument for several reasons, but I will limit this post to just one of them: The fact that the statute has been used repeatedly in military prosecutions – and that at least one military court decision undermines arguments Director Comey has made about the state-of-mind proof required. The military prosecutions for gross negligence in the mishandling of classified information were discussed by former Attorney General Michael Mukasey in a Wall Street Journal column following Director Comey’s press conference on Tuesday. While it is certainly true that the FBI does not handle such investigations, the military courts are part of the United States justice system. Military cases litigate many of the same statutes and precedents (especially, Supreme Court precedents) that are applicable in the civilian justice system. One relevant military case, United States v. McGuinness, is from 1992 – hardly ancient history. It involved a navy operations specialist sentenced to two years’ confinement (and other penalties) because, over his years of service, he retained 311 “classified items” unsecured in his home. While he was charged under Section 793, it was not under subsection (f) – the subsection of the statute most relevant to Mrs. Clinton, involving the grossly negligent mishandling of classified information – but under subsection (e), which criminalizes willful mishandling of classified information. Nevertheless, the case is highly relevant to our consideration of Director Comey’s recommendation against prosecution.
Read more at: www.nationalreview.com...
The Justice Department is conducting 27 investigations into classified leaks of information, a sharp increase from recent years, according to Attorney General Jeff Sessions.
At a House oversight hearing on Tuesday, Sessions sought to emphasize that his department is taking the leak "epidemic" seriously.
"Members of the committee, we had about nine open investigations of classified leaks in the last three years," Sessions said. "We have 27 investigations open today. We intend to get to the bottom of these leaks."
Later, he described the numbers in more detail, saying the Obama-era DOJ investigated "three per year" while the Trump-era DOJ has "27 ongoing investigations."
Leak investigations could result in criminal prosecutions or other punitive actions.
Sessions' statements are likely to please President Trump, who has repeatedly vented his anger over leaks, and expressed his disappointment in Sessions and the Justice Department.
Sessions' statements are likely to please President Trump, who has repeatedly vented his anger over leaks, and expressed his disappointment in Sessions and the Justice Department
originally posted by: JoshuaCox
a reply to: shawmanfromny
Zero hedge is a propaganda site that constantly pushes fake stories and doesn’t even employ journalists....
How many fake stories does it take for people to stop baa baa baaing right behind them???
The Emerging Threats and Capabilities subcommittee has jurisdiction over Department of Defense policies and programs to counter emerging threats (such as proliferation of weapons of mass destruction, terrorism, illegal drugs, and other threats), information warfare and special operations programs, the Defense Threat Reduction Agency, and Department of Energy non-proliferation programs. The subcommittee also oversees sales of U.S. military technology to foreign countries, and defense and military research and development efforts through the Defense Advanced Research Projects Agency.