What’s past is prologue.
— William Shakespeare, The Tempest, Act II, Scene 1
Former secretary of state Hillary Clinton insists she did nothing wrong by running all of her government communications, including classified material, through her unsecured, home-brewed computer server. Perhaps she’s forgotten one of her husband’s final acts in the Oval Office: issuing a presidential pardon to former CIA director John Deutch.
Deutch’s offense? Keeping classified material on unsecured home computers.
The pardon came just as Deutch was reportedly going to cop a plea with the Justice Department.
Deutch headed the CIA from May 1995 to December 1996. Several days after he left the agency, classified material was discovered on a government-owned computer at his house in Bethesda, Md. Additionally, unsecured classified magnetic media were found in the study. According to the CIA inspector general’s report, the computer had been “designated for unclassified use only.”
Unlike the current administration’s six-month delay in obtaining Clinton’s computer, the feds moved almost immediately in the Deutch case. Within ten days of discovering the errant material, they retrieved the hard drive from Deutch’s computer. A formal security investigation was opened within a month.
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Notice that the government didn’t let Deutch’s lawyer pick and choose which e-mail communications to turn over. Rather, a “technical exploitation team, consisting of personnel expert in data recovery, retrieved the data from Deutch’s unclassified magnetic media and computers.”
As the investigation progressed, the IG discovered that Deutch had “continuously processed classified information on government-owned desktop computers configured for unclassified use during his tenure as DCI [director, CIA] [and that] . . . these unclassified computers were located in [his] Bethesda, Maryland and Belmont, Massachusetts residences, his offices in the Old Executive Office Building, and at CIA Headquarters.”
Notice that the government didn’t let Deutch’s lawyer pick and choose which e-mail communications to turn over.
The computers, as configured and used, were “vulnerable to attacks by unauthorized persons.” The report stressed that “all [computers] were connected to or contained modems that allowed external connectivity to computer networks such as the Internet.” The information the security team retrieved from these computers included “Top Secret communications intelligence” as well as information on the “National Reconnaissance Program.”
The IG criticized senior CIA officials for not taking appropriate action against Deutch when they were apprised of the results of the security investigation. That was one of the reasons the IG “initiated an independent investigation.”
The Deutch IG report contains a useful discussion of federal laws that may be violated by handling classified material on a home computer. There’s 18 U.S.C. §793, which makes it a criminal offense “through gross negligence” to allow defense information “to be removed from its proper place of custody.” An unsecured personal computer is obviously not a “proper place of custody,” as John Deutch discovered. Note that no intentional misconduct is required; just gross negligence.
Additionally, 18 U.S.C. §1924 applies to an officer of the United States. Any such officer who “by virtue of his office . . . becomes possessed of documents or materials containing classified information [and] knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location” can be fined or imprisoned for not more than one year, making it a misdemeanor.
The IG report lists additional laws, regulations, and policies regarding the handling of classified material. All of them require government personnel to handle such information “in a secure manner” so that “unauthorized persons are not afforded access to such materials.”
And there’s one more strikingly relevant admonition in this 15-year-old IG report.
When the CIA first discovered classified materials on an unsecure computer, the legal adviser for the CIA’s Office of Personnel Security told the officials and investigators launching the investigation that, because this case involved a very senior administration official, their actions would be “scrutinized very closely.” Therefore, he stressed, “the security investigation of this case must follow the same pattern established in other cases where employees have placed classified information on a computer and possibly exposed that information to access by unauthorized individuals.”
The IG criticized senior CIA officials, including its executive director and general counsel, however, for not submitting a report to the Justice Department after the investigation had concluded that “there was a reasonable basis to believe that Deutch’s mishandling of classified information violated the standards prescribed.” This had the result of “delaying a prompt and thorough investigation.”
“Prompt and thorough” are not words that leap to mind when thinking of the investigation into how Hillary Clinton handled classified material while serving as secretary of state. We know that her legal team deleted from the home server e-mail communications that they, in their sole determination, decided were personal and not related to State Department business. The FBI took possession of the server only this week. Unless the agency is somehow able to recover all of the e-mails on the reportedly “wiped” server, we may never know if those determinations were correct.
#related#If e-mails related to State Department business were deleted, however, then there is another similar case that should be kept in mind. In 2013, the former head of the Office of Special Counsel, Scott Bloch, pleaded guilty to a misdemeanor charge of destroying government property. He had hired an outside computer company to delete his files from a government computer.
What is clear is that a serious investigation must be conducted by the FBI and the Justice Department. As former attorney general Michael Mukasey opined recently in the Wall Street Journal, “once you assume public office, your communications about anything having to do with your job are not your personal business or property. They are the public’s business and the public’s property, and are to be treated as no different from communications of like sensitivity.”
— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and the co-author of Obama’s Enforcer: Eric Holder’s Justice Department. Charles Stimson is a senior legal fellow and manager of the National Security Law Program at Heritage.