Former National Security Advisor Berger was caught trying to smuggle classified documents out of the National Archives and Records Administration (NARA). (The Los Angeles Times, 3/27/2016) Berger took five copies of a memorandum called the “Millennium Alert After Action Report” and later destroyed three of them. (Real Clear Politics, 1/15/2007) (The Washington Post, 4/1/2005)
The federal government’s US National Institute of Standards and Technology (NIST), warns that exposed server ports are security risks. According to a 2015 Associated Press article, “It [says] remote-control programs should only be used in conjunction with encryption tunnels, such as secure VPN connections.”
But according to records from late 2012, the private email server used by Clinton while secretary of state from 2009 to 2013 will have exposed server ports, and it will use remote-control programs without encryption tunnels. This will leave it more vulnerable to hacker attacks. (The Associated Press, 10/13/2015)
In July 2011, Rajiv Fernando is appointed to the International Security Advisory Board (ISAB), a panel filled with high-level foreign policy advisers and security experts. Fernando is granted “top secret” security clearance and given access to highly sensitive information in order to participate on the panel.
Fernando has no relevant experience for the panel but is a prominent donor to Democratic political campaigns, including Clinton’s 2008 campaign, to which he gave large amounts as a “bundler.” He also gave between $1 and $5 million to the Clinton Foundation.
ABC News later comments that Fernando, a “Chicago securities trader, who specialized in electronic investing, sat alongside an august collection of nuclear scientists, former cabinet secretaries, and members of Congress to advise Hillary Clinton on the use of tactical nuclear weapons and on other crucial arms control issues.”
On August 15, 2011, ABC News asks the State Department about Fernando’s apparent lack of qualifications for the panel. Fernando resigns two days later.
In 2016, some State Department emails will be publicly released about the matter. Department official Jamie Mannina writes in an August 15, 2011 email: “it appears there is much more to this story that we’re unaware of. […] [I]t’s natural to ask how he got onto the board when compared to the rest of the esteemed list of members. […] We must protect the secretary’s [meaning Clinton] and under secretary’s name, as well as the integrity of the [panel]. I think it’s important to get down to the bottom of this before there’s any response.”
Official Wade Boese replies that same day, “The true answer is that S staff (Cheryl Mills) added him. The board’s membership preceded me. Raj [Fernando] was not on the list sent to S; he was added at their insistence.” “S” refers to Secretary Clinton.
Clinton’s aides will later claim that Fernando’s appointment to the panel was not connected to his political donations. However, an unnamed former administration official familiar with the selection will say that department officials were probably “embarrassed” by the attention and the potential conflict of interest. (CNN, 6/11/2016) (ABC News, 6/10/2016)
In the summer of 2008, the presidential campaigns of Barack Obama and John McCain had their computers successfully breached by hackers apparently working for the Chinese government. According to NBC News, “US officials say that Chinese intrusions have escalated in the years since, involving repeated attacks on US government agencies, political campaigns, corporations, law firms, and defense contractors—including the theft of national security secrets and hundreds of billions of dollars in intellectual property.”
Shawn Henry headed up the FBI’s investigation of the 2008 attacks and now is president of the computer security company CrowdStrike. He says there’s “little doubt” the Chinese government has an aggressive electronic espionage program targeting the US government and the commercial sector. “There’s been successful exfiltration of data from government agencies (by the Chinese) up and down Pennsylvania Avenue.” (NBC News, 6/6/2013)
Kim pleads guilty to orally describing classified information from an intelligence report on North Korea’s nuclear program with Fox News reporter James Rosen. Prosecutors say Kim hurt US national security by indirectly alerting North Korea to what the US knew about that country’s capabilities. Kim says he wanted to bring more public attention to the threat posed by North Korea’s nuclear program. Kim also has pointed out that officials frequently leak classified information to reporters, but prosecutors say that the fact that other people do it doesn’t make it any less of a crime. (The Washington Post, 4/2/2014)
In a 60 Minutes interview, he goes on to say, “This is not a situation in which America’s national security was endangered.” He adds that, “We don’t get an impression that there was purposely efforts […] to hide something or to squirrel away information,”
However, several days later a White House spokesperson says Obama will wait for the Justice Department investigation’s determination about that. Politico will later comment, “Agents and retired FBI personnel told journalists the comments were inappropriate given the fact that the FBI inquiry was ongoing.” (The Associated Press, 10/13/2015) (CNN, 10/13/2015) (Politico, 3/9/2016)
The New York Times reports that although the White House backtracked later, “Those statements angered FBI agents who have been working for months to determine whether Mrs. Clinton’s email setup did in fact put any of the nation’s secrets at risk, according to current and former law enforcement officials. Investigators have not reached any conclusions about whether the information on the server was compromised or whether to recommend charges, according to the law enforcement officials. But to investigators, it sounded as if Mr. Obama had already decided the answers to their questions and cleared anyone involved of wrongdoing.”
Ron Hosko, who was a senior FBI official until he retired in 2014, says, “Injecting politics into what is supposed to be a fact-finding inquiry leaves a foul taste in the FBI’s mouth and makes them fear that no matter what they find, the Justice Department will take the president’s signal and not bring a case.” (The New York Times, 10/16/2015)
An unnamed upset FBI agent at the Washington Field Office, where the investigation is based, says, “We got the message. […] Obama’s not subtle sometimes.” (The New York Observer, 10/19/2015)
State Department legislative liaison Julia Frifield sends a letter to the Senate indicating an apparent change in what information the State Department considers properly classified. The vast majority of redactions in Clinton’s emails are for foreign government information, to which Frifield refers as “FGI.”
Frifield writes, “Although the unauthorized release of FGI is presumed to cause harm to the national security—thereby qualifying as Confidential [level] classified information, department officials of necessity routinely receive such information through unclassified channels. For example, diplomats engage in meetings with counterparts in open settings, have phone calls with foreign contacts over unsecure lines, and email with and about foreign counterparts via unclassified systems. Diplomats could not conduct diplomacy if doing so violated the law.” As a result, not all such information should automatically be considered classified.
However, regulations in effect when Clinton was secretary of state called for FGI to be marked “confidential” unless it was designated “C/MOD” (for “confidential/modified handling”). But none of Clinton’s emails appear to have been given that designation. (Politico, 5/12/2016)
It is reported that FBI investigators looking into Clinton’s email scandal have been joined by prosecutors from the US Attorney’s Office in the Eastern District of Virginia. The district is commonly nicknamed the “rocket docket” for the speed with which cases move through it. It is home to the CIA and the Pentagon, so it often deals with national security and terrorism cases. The office is led by veteran federal prosecutor Dana Boente. Prosecutors from the office have been working with the FBI to interview Clinton’s top aides. (The Washington Post, 5/5/2016)
He was arrested in May 2015 on charges that he took some pictures that included classified engineering spaces in the backgrounds. It does not appear he attempted to share the photos with anyone, but he threw a cell phone into a dumpster that contained the phone, and someone else found it and reported it. He pled guilty to one felony count of unlawful retention of national defense information. This is part of the Espionage Act, even though he has never been accused of espionage. Sentencing guidelines suggest he could get five to six years in prison.
Politico reports that some are comparing Saucier’s case to Clinton’s email scandal, and suggesting that the less powerful like Saucier face stiffer punishments. The photos he took have been deemed “confidential,” the lowest classification ranking, while Clinton had some emails on her unapproved private server at the higher rankings of “secret” and “top secret.” Edward MacMahon, a Virginia defense attorney not involved in the Saucier case, says: “Felony charges appear to be reserved for people of the lowest ranks. Everyone else who does it either doesn’t get charged or gets charged with a misdemeanor.” (The Navy Times, 8/1/2015) (Politico, 5/27/2016)
The newspaper’s editorial board reacts to the State Department inspector general’s report criticizing Clinton’s email practices. “Clinton’s bad decision had turned into something far worse: a threat to national security, one that she repeatedly ignored despite multiple warnings.”
The editorial cites four warnings Clinton faced in a six-month period in 2011 that all pointed to the security danger of using a private email account. But despite these warnings, and others, “Clinton and several of her top aides continued to use personal email for sensitive State Department business thousands of times.”
It concludes, “It’s already clear that, in using the private email server, Clinton broke the rules. Now it remains to be seen whether she also broke the law.” (USA Today, 5/30/2016)
In the wake of FBI Director James Comey’s decision not to recommend Clinton’s indictment, the Washington Post reports, “The extraordinary case of Hillary Clinton and her emails raises intriguing questions for federal employees facing charges related to classified materials. … Because she has escaped prosecution, will others, too?”
Mark Zaid, a lawyer who specializes in national security employment cases, says that after former CIA Director David Petraeus got what was seen as a very generous plea deal, resulting in no prison time despite pleading guilty to mishandling classified material, he used that case to push for leniency for one of his clients “right away. I mean, literally, the ink was not dry.” Zaid’s client also was charged with mishandling classified information, but “We talked to the prosecutors and said, ‘We want the Petraeus deal.’ We got it.” Zaid plans to use Clinton’s case to push for leniency in future cases.
National security lawyer Gregory Greiner similarly argues that after Clinton’s non-prosecution, defense lawyers will try to raise the bar for prosecutors. He says that it only takes one person on a jury to argue that “this guy didn’t do anything different than what Hillary Clinton did.” (The Washington Post, 7/7/2016)