A
Quick and Dirty Analysis-
對希拉蕊電郵嫌案,美國FBI匆促與齷齪的分析
Jim Comey's Statement on the
Clinton Emails:
Tuesday,
July 5, 2016, 12:32 PM
Benjamin
Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies
at the Brookings Institution. He is the author of several books and is co-chair
of the Hoover Institution's Working Group on National Security, Technology, and
Law. (美國胡佛國家安全,
科技與法律研究所副主席)
The first notable thing in FBI Director Jim Comey's statement on
the Clinton email flap is that he issued it at all. Normally, the FBI does not issue reports on its investigative findings separate from
Justice Department decisions regarding what to do with those findings. Much
less does it make public its recommendations, particularly in a fashion that
effectively preempts the Justice Departments prosecutorial decisions with
respect to those recommendations.
The second notable feature of his statement is this line: "I have not coordinated or
reviewed this statement in any way with the Department of Justice or any other
part of the government. They do not know what I am about to say." This is
clearly a reference to Bill Clinton's perhaps unintentional—but nonetheless very
damaging—decision to compromise Attorney
General Loretta Lynch by jumping on her airplane and having a private
meeting with her. The import of Comey's move here is that conservatives and
skeptics of the attorney general—who is a political appointee, after all—no
longer have to rely on her integrity to put this matter behind him. This
sentence says that they can rely on Comey's and the FBI's alone.
Before turning to his findings, Comey identifies three
areas of investigation:
- "whether there is
evidence classified
information was improperly stored or transmitted on that personal system,
in violation of a federal statute making it a felony to mishandle
classified information either intentionally or in a grossly negligent
way";
- whether anyone violated "a second statute
making it a misdemeanor to knowingly remove classified information from
appropriate systems or storage facilities"; and
- "whether there is evidence of computer
intrusion in connection with the personal e-mail server by any foreign
power, or other hostile actors."
Note here what this investigation did not include:
despite a lot of unified field theorizing in the conservative press, the
conduct of the Clinton Global Initiative, Benghazi, Clinton's relationship
with Wall Street banks, and a lot of other things were not part of this investigation.
Comey then goes on to detail some of the bureau's
activities and findings. This is, as I say, an unusual step.
Normally, the bureau sends its findings to prosecutors and says nothing
about them in public. In this case, however, Comey says "I am going
to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of
intense public interest."
The first key finding is that there was, indeed, a
significant amount of classified material on Clinton's server. How much?
From the group of 30,000 e-mails returned to the State
Department, 110 e-mails in 52 e-mail chains have been determined by the owning
agency to contain classified information at the time they were sent or
received. Eight of those chains contained information that was Top Secret at the time they were sent; 36
chains contained Secret information at the time; and eight contained
Confidential information, which is the lowest level of classification. Separate
from those, about 2,000 additional e-mails were “up-classified” to make
them Confidential; the information in those had not been classified at the time the e-mails were sent."
In addition, there were other work-related emails recovered that were not
stored on the server, though the bureau found no evidence that any were deleted
in an effort to conceal them: "With respect to the thousands of e-mails we
found that were not among those produced to State, agencies have concluded that
three of those were classified at the time they were sent or received, one at
the Secret level and two at the Confidential level. There were no additional
Top Secret e-mails found. Finally, none of those we found have since been
'up-classified.'"
Comey next reports that "there was no intentional misconduct in connection with
th[e] sorting effort" on the part of Clinton's lawyers in identifying
and turning over her work related emails after the server was disclosed.
The bad news for Clinton comes next. And don't let anyone
kid you. It's bad. "Although we did not find clear evidence that Secretary
Clinton or her colleagues intended to violate laws governing the handling of classified information,
there is evidence that they were extremely careless in their handling of very sensitive, highly classified
information," Comey says:
For example, seven e-mail chains concern matters that
were classified at the Top Secret/Special Access Program level when they were
sent and received.
These chains involved Secretary Clinton both sending e-mails
about those matters and receiving e-mails from others about the same matters.
There is evidence to support a conclusion that any reasonable person in
Secretary Clinton’s position, or in the position of those government employees
with whom she was corresponding about these matters, should have known that an unclassified system was
no place for that conversation. In addition to this highly sensitive
information, we also found information that was properly classified as Secret
by the U.S. Intelligence Community at the time it was discussed on e-mail (that
is, excluding the later “up-classified” e-mails).
None of these e-mails should have been on any kind of
unclassified system, but their presence is especially concerning because all of
these e-mails were housed on unclassified personal servers not even supported
by full-time security staff, like those found at Departments and Agencies of
the U.S. Government—or even with a commercial service like Gmail.
This will be a politically damaging finding—as well it should be. It's not uncommon for
high-ranking officials to treat classification rules with a lack of deference.
That said, it's upsetting every time it happens. And notably in this case, this
is not—as some prior reporting
suggested—merely a case of Clinton's passively receiving New York
Times articles that contained, in an unmarked fashion, classified
material. Comey makes clear that she both sent and received classified material and that
"any reasonable person" in her shoes would have known better than to have such conversations.
These are strong words. And this paragraph will make
for a lot of Republican talking points over the next few months. In all
honesty, Clinton deserves these talking points every time. She should have
known better.
Did it matter? The short answer is that it seems that it
likely, but not certainly, did—at least to some degree:
With respect to potential computer intrusion by hostile
actors, we did not find direct evidence that Secretary Clinton’s personal e-mail
domain, in its various configurations since 2009, was successfully hacked. But,
given the nature of the system and of the actors potentially involved, we
assess that we would be unlikely to see such direct evidence.
We do assess that hostile
actors gained
access to
the private commercial e-mail accounts of people with whom Secretary Clinton
was in regular contact from her personal account. We also assess that Secretary
Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail
extensively while outside the United States, including sending and receiving
work-related e-mails in the territory of sophisticated adversaries. Given that combination of
factors, we assess it is possible that hostile actors gained access to
Secretary Clinton’s personal e-mail account.
This paragraph is carefully worded, and I suspect that it
would have been worded differently had the FBI concluded that an
intrusion was unlikely.
Put it all together and you get a pretty damaging case in the political arena. Clinton
behaved in a fashion a reasonable person would not have with respect to
discussing highly sensitive material in a non-secure setting. We know that
"hostile actors" gained access to the systems of her correspondents.
And we can't rule out that her own system was compromised. It's not a pretty
picture.
And that said, it's very clearly not the sort of thing the Justice Department prosecutes
either. For the last several months, people have been asking me what I
thought the chances of an indictment were. I have said each time that there is
no chance without evidence of bad faith action of some kind. People simply
don't get indicted for accidental, non-malicious mishandling of classified
material. I have followed leak cases for a very long time, both at
the Washington Post and since starting Lawfare. I have never
seen a criminal matter proceed without even an allegation of something more than mere
mishandling of sensitive information. Hillary Clinton is not above the law, but to indict her on
these facts, she'd have to be significantly below the law.
Comey's recommendation in this regard is unambiguous: "our judgment is that no reasonable
prosecutor would bring such a case."
His reasoning, at least in my judgment, is clearly
correct: "In looking back at our investigations into mishandling or
removal of classified information, we cannot find a case that would support bringing criminal charges
on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast
quantities of materials exposed in such a way as to support an inference of
intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things
here."
Comey's full statement is a peculiar document because it is simultaneously
emphatic that Clinton and her staff
behaved inappropriately and equally emphatic that no reasonable prosecutor
would want to bring a case against them. His reputation for personal probity
and apolitical behavior is such that both statements must be taken
seriously. The former should be profoundly embarrassing to Clinton. The latter should put to rest the notion that she should face
charges. If she is to face accountability for her email server, that
accountability will and should be in the political realm.
網路資訊
Justin Lai
07/06/2016
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