As I said in an earlier post, no crime is committed if the appropriate official leaks sensitive classified information. This applies to both Secretary Clinton’s email server and President Trump’s unfortunate meeting with Russian diplomats. Both carried the authority to disclose what they disclosed. One question remains: what damage might have ensued from each leak?
I would argue that in both cases the initial lapse of judgement did not explicitly damage the United States. In both cases, however, the subsequent brouhaha may have leaked classified information. I personally doubt that the country will suffer much from either leak, though that is based on my own assessment of national threats (a political opinion).
Rules on leaking information
There are two leakage situations: broken laws and broken promises.
What is explicitly illegal?
The Espionage Act makes it a crime to disclose sensitive military information to a foreign power.
A later law on intelligence disclosures makes it a crime to disclose “intelligence sources and methods.”
The law on disclosing classified information is murky. Courts have held that the mere fact that something is “classified” does not make a statement into military information or into intelligence sources or methods. The content and potential damage must be considered.
The president and cabinet members have broad authority to classify and declassify information. It’s hard to argue in court that declassified information is “sensitive military information” or that it involves “intelligence sources and methods” deserving protection. These officials do not need to follow a protocol when declassifying information.
There’s an old saying, attributed to an unknown US president, addressing a cabinet secretary:
He, she, it commits a criminal act of espionage.
What rules might be broken?
The US government tries to follow its own rules. Most rules regarding sensitive information arise from Executive Orders established or maintained by the sitting president. Presidents are responsible for enforcing their own Executive Orders, so they can ignore or countermand them if they want.
Other rules involve promises made to other governments. The intelligence community is a spider’s web of relationships between people within governments and intelligence agencies. There is the “Five Eyes” group (US, UK, Canada, Australia, and New Zealand) that shares information among themselves and agree not to share that information with anyone else. There are undoubtedly one-on-one sharing agreements between the US and Russia, Japan, and Korea, though these nations probably don’t share with each other.
If we break promises to other intelligence agencies by improperly sharing information, we jeopardize those sharing agreements. An agency is less likely to share information if they don’t trust us to keep the information secret.
Comparing the Leaks (5/16/17)
Based on information available on May 16, 2017, here is how things appear:
President Trump invited Russian diplomats to an Oval Office meeting on May 10, 2017. Although US press representatives were barred from the meeting, Russian press representatives took photos and published them through their own news agency.
White House staffers identified an intelligence leak while reviewing a transcript of Trump’s meeting. The leak apparently involved ISIS using laptops as explosive devices. According to the Washington Post article:
In his meeting with Lavrov, Trump seemed to be boasting about his inside knowledge of the looming threat. “I get great intel. I have people brief me on great intel every day,” the president said, according to an official with knowledge of the exchange.
Trump went on to discuss aspects of the threat that the United States learned only through the espionage capabilities of a key partner. He did not reveal the specific intelligence-gathering method, but he described how the Islamic State was pursuing elements of a specific plot and how much harm such an attack could cause under varying circumstances. Most alarmingly, officials said, Trump revealed the city in the Islamic State’s territory where the U.S. intelligence partner detected the threat.
President Trump had the authority to share this information as President of the United States. The disclosure is not explicitly illegal. In a later statement, Trump’s National Security Advisor, Lt. Gen. H. R. McMaster, said “At no time — at no time — were intelligence sources or methods discussed, and the president did not disclose any military operations that were not already publicly known.” This statement clearly argues that the disclosure did not break laws.
If the Washington Post’s statement is accurate, then Trump disclosed the city where the threat was detected. If we accept Gen. McMaster’s statement as well, then Trump’s national security team does not consider the city’s name to be the “source” of the information or the “method” by which it was collected.
In any case, some members of Trump’s national security team were troubled by the revelation. According to the Post article:
Senior White House officials appeared to recognize quickly that Trump had overstepped and moved to contain the potential fallout. Thomas P. Bossert, assistant to the president for homeland security and counterterrorism, placed calls to the directors of the CIA and the NSA, the services most directly involved in the intelligence-sharing arrangement with the partner.
It seems likely that Trump’s disclosure to the Russians broke our promise to the “intelligence partner” who provided the US with the information. While the city’s name might not itself be a “source” or “method,” it might give the Russian intelligence services enough information to locate the source.
The larger problem is that a White House staffer leaked this conversation to a Post reporter. The Post story says that they intentionally withheld the city’s name on recommendations from intelligence officials. This places classified intelligence information in “unclassified” locations controlled by the Washington Post. This makes the Post a target of foreign intelligence agencies (again). One observer suggests that the leak could only have come from someone in the Oval Office during the meeting, but the transcript widens the pool of suspects.
The trouble arising from this disclosure would have been better contained if it hadn’t been leaked to the press. Disclosure to the Russians might have been contained, or handled diplomatically.
At a more fundamental level, the information wasn’t the United States’ to provide to others. Under the rules of espionage, governments — and even individual agencies — are given significant control over whether and how the information they gather is disseminated, even after it has been shared. Violating that practice undercuts trust considered essential to sharing secrets.
The officials declined to identify the ally but said it has previously voiced frustration with Washington’s inability to safeguard sensitive information related to Iraq and Syria.
“If that partner learned we’d given this to Russia without their knowledge or asking first, that is a blow to that relationship,” the U.S. official said.
The press disclosure makes the diplomatic and intelligence problems more severe even if the general public doesn’t discover the name of the compromised ally.
Hillary Clinton deployed a private email server and used it in many cases for official State Department business. This covers a multitude of activities, many of which make sense on a private server (e.g. details of her public meeting schedule). This is not an unusual practice among senior political figures.
A series of investigations have failed to uncover any email written by Secretary Clinton that contains classified information. She may have received “classified” emails from other staffers and she may have forwarded “classified” email text received from others. The term “classified” in quotes refers to the fact that the emails rarely if ever contained classification markings, and information was often deemed classified after the fact (i.e. during subsequent investigations).
What sorts of classified information may have been on Clinton’s server? This detail has been closely held but, based on sensitive activities at the time, it probably involved drone strikes. These were the most diplomatically sensitive things going on. Just about everything about drone strikes (their existence, occurrence, targets, locations, flight paths, etc.) were “code word classified,” since the drone strikes were part of a special access program.
Since we can’t see the actual emails it’s hard to tell what information might have appeared. The word “drone” or other words associated with the drone strikes would have lead a later reviewer to mark them “classified.”
As Secretary of State, Clinton had the authority to classify and declassify thing involving US diplomacy. If she wrote up details of a classified CIA operation and sent it in an email, this would be a giant red flag: a CIA director had to resign for similar carelessness in the 1990s. Clinton’s server may or may not have held such information, suggesting that one or more of her subordinates at the State Department were careless with the information. If Clinton herself had disclosed explicit classified information about military operations or intelligence sources and methods, I am confident that the FBI would have said said so in its investigation.
Summary Comparison of Leaks (5/16/17)
|Question||Clinton and Emails||Trump and Russia|
|Violated diplomatic agreements?||No||Yes|
|Hurt US intelligence gathering?||No||Maybe|
|Damaged national security? (opinion)||No||No|