The Conservative Case for Letting Clinton Skate
Conservatives are -- to put it mildly -- disappointed by FBI Director James Comey's decision not to recommend criminal charges against Hillary Clinton over her use of a personal server for classified State Department e-mails. The National Review's Jonah Goldberg blogged, "I don't get it." Tom Fitton, the president of Judicial Watch, the nonprofit that helped bring Clinton's e-mails to light, said there was a "disconnect between Comey's devastating findings and his weak recommendation." Right-wing Twitter is a flutter with indignation.
And the disappointment is understandable. Comey said it was quite possible that hostile powers had breached her e-mail server. What's more, he put the lie to Clinton's claim that she never knowingly sent classified information through her private server.
"There is evidence to support a conclusion that Secretary Clinton should have known an unclassified system was no place for that information," Comey said. A lower-level State Department employee would have been disciplined or fired for discussing classified information on unclassified channels, why shouldn't Clinton too pay a price for her recklessness?
If you're looking for consistency and rationality, you won't find it in the government's handling and creation of classified information. Some officials who mishandle state secrets go to prison, while others are not prosecuted at all. The remedy to this inequality of justice is not to throw the book at Clinton, but to reform the way our government creates and protects its secrets.
To start, Clinton's predicament is more common than one might think. J. William Leonard, who served from 2002 to 2008 as the director of the Information Security Oversight Office, told me: "If you looked at any senior government official's unclassified e-mail accounts you will find information that someone can go through and say, 'Hey, that's classified.'" Granted this is not the same as using a private server over the advice of security professionals, but it's a common problem in the government.
Clinton's case here is instructive. While the FBI has not made public the classified information she discussed in her unclassified e-mails, many outlets have reported that some of this dealt with the U.S. targeted killing program. Until recently these drone strikes were considered top secret. At the same time they were widely reported and discussed in Washington, to the point where President Barack Obama himself joked about his drone strikes at a White House Correspondents Association dinner.
"We know that until very recently the administration considered the discussion of specific targeted killing operations to be highly classified, and in fact covert action," said Steven Aftergood, the director of the Project on Government Secrecy for the Federation of American Scientists. "Outside of government most people find that ridiculous because it has been reported around the world."
It's not just drone strikes. The details of U.S. aid to the Palestinian Authority today are classified. That means it's technically illegal for you or me to know how much money the U.S. has withheld in compliance with a 2014 law to cut off payments to Palestinian prisoners and the families of "martyrs." The same is true for the vast majority of documents uncovered in the 2011 raid on Osama bin Laden's compound or the details about whether Russia has complied with its arms-control agreements.
In all of these instances, conservatives have an interest in diminishing state secrecy, not empowering it. Even for something like the 2012 attack on the U.S. diplomatic compound in Benghazi, Libya, the mishandling of classified information played a crucial role in exposing the White House narrative that the attack was really a demonstration gone awry. Had it not been for timely leaks of classified assessments, the public would not have known until after the 2012 election how many U.S. officials on the ground contradicted the White House line.
None of this is to say that there are not some secrets, like the identity of CIA agents overseas, that must be protected. But modern presidents and the national security bureaucracy have embraced excessive secrecy. As the director of national intelligence, James Clapper, told me in 2014, it was a mistake to keep from the public the NSA program to collect telephone metadata. When it finally did become public, it was a scandal.
It's something to keep in mind in the coming months. If Clinton wins the election in November, she will have to protect the kind of classified information she mishandled as secretary of state. Conservatives in many cases should hope she doesn't do that job too vigilantly. After all, many of those secrets should not have been classified in the first place.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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