tag:theconversation.com,2011:/global/topics/classified-information-29237/articlesClassified information – The Conversation2023-06-09T15:44:39Ztag:theconversation.com,2011:article/2073732023-06-09T15:44:39Z2023-06-09T15:44:39ZTrump charged under Espionage Act – which covers a lot more crimes than just spying<figure><img src="https://images.theconversation.com/files/531151/original/file-20230609-15-kmec9x.jpg?ixlib=rb-1.1.0&rect=35%2C11%2C7912%2C5147&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump was on the campaign trail in early June 2023, as an investigation continued that led to his indictment on federal charges.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-and-2024-presidential-hopeful-donald-news-photo/1258360358">Andrew Caballero-Reynolds/AFP via Getty Images</a></span></figcaption></figure><p>Former President Donald Trump’s <a href="https://www.washingtonpost.com/national-security/2023/06/09/indictment-document-trump-classified-documents-pdf/">indictment by a federal grand jury</a> in Miami includes <a href="https://www.washingtonpost.com/dc-md-va/2023/06/09/trump-charges-classified-documents/">31 counts of violating</a> a part of the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37">Espionage Act of 1917</a>.</p>
<p><a href="https://theconversation.com/free-speech-wasnt-so-free-103-years-ago-when-seditious-and-unpatriotic-speech-was-criminalized-in-the-us-160835">The Espionage Act</a> has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use <a href="https://apnews.com/article/north-america-donald-trump-ap-top-news-elections-barack-obama-9d9a76067d5b47e5a290dc9832369c92">occurred during the Obama administration</a>, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage. </p>
<p><a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">We are</a> both <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">attorneys who specialize in</a> and teach national security law. While navigating the sound and fury over the Trump indictment, here are a few things to note about the Espionage Act.</p>
<h2>Espionage Act seldom pertains to espionage</h2>
<p>When you hear “espionage,” you may think spies and international intrigue. One portion of the act – <a href="https://www.law.cornell.edu/uscode/text/18/794">18 U.S.C. section 794</a> – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment. </p>
<p>That aspect of the law is best exemplified by the convictions of <a href="https://www.npr.org/2020/12/30/951334047/jonathan-pollard-cold-war-spy-who-spent-30-years-in-u-s-prison-arrives-in-israel">Jonathan Pollard in 1987</a>, for spying for and providing top-secret classified information to Israel; <a href="https://www.fbi.gov/history/famous-cases/aldrich-ames">former Central Intelligence Agency officer Aldrich Ames in 1994</a>, for being a double agent for the Russian KGB; and, in 2002, former <a href="https://www.fbi.gov/history/famous-cases/robert-hanssen">FBI agent Robert Hanssen, who was caught selling U.S. secrets</a> to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences. </p>
<p>But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-2057-synopses-key-national-defense-and-national-security-provisions">certain sensitive government information</a>. </p>
<p>Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for a document’s return. Trump’s charges reportedly include an allegation of “unauthorized retention of <a href="https://www.nytimes.com/2023/06/08/us/politics/trump-indictment-charges.html">national security documents</a>,” which can include both possessing the documents and refusing to return them to the government. All of these prohibited activities fall under the separate and more commonly applied section of the act – <a href="https://www.law.cornell.edu/uscode/text/18/793">18 U.S.C. section 793</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a military uniform is escorted onto a vehicle by a man in a dark shirt and khakis." src="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chelsea Manning, in uniform, after being sentenced on Aug. 21, 2013, to 35 years in prison after being found guilty of several counts under the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/army-private-first-class-bradley-manning-is-escorted-by-news-photo/177149744?adppopup=true">Photo by Mark Wilson/Getty Images</a></span>
</figcaption>
</figure>
<h2>A violation does not require an intention to aid a foreign power</h2>
<p>Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.</p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-documents-explanations.html">Current claims by Trump supporters</a> of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.” </p>
<p>One of the most famous Espionage Act cases, <a href="https://www.nytimes.com/2019/05/23/us/politics/assange-indictment.html">known as “Wikileaks</a>,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed. </p>
<p>Two recent senior Democratic administration officials – <a href="https://www.reuters.com/article/us-people-sandyberger-obituary/former-u-s-national-security-adviser-sandy-berger-dies-idUSKBN0TL1OL20151203">Sandy Berger</a>, national security adviser during the Clinton administration, and <a href="https://www.britannica.com/biography/David-Petraeus">David Petraeus</a>, CIA director under during the Obama administration – <a href="https://www.washingtonpost.com/world/national-security/how-david-petraeus-avoided-felony-charges-and-possible-prison-time/2016/01/25/d77628dc-bfab-11e5-83d4-42e3bceea902_story.html">each pleaded</a> guilty to misdemeanors <a href="https://www.justice.gov/archive/opa/pr/2005/April/05_crm_155.htm">under the threat</a> of Espionage Act prosecution. </p>
<p>Berger took home a classified document – <a href="https://www.washingtontimes.com/news/2022/aug/9/national-archives-documents-center-trump-raid-have/">in his sock</a> – at the end of his tenure. Petraeus <a href="https://www.politico.com/story/2016/06/fbi-petraeus-shared-top-secret-info-with-reporters-224023">shared classified information</a> with an unauthorized person for reasons having nothing to do with a foreign government. </p>
<h2>The act is not just about classified information</h2>
<p>Some of the documents the FBI sought and found in the Trump search <a href="https://www.npr.org/2022/08/12/1117277865/read-the-full-warrant-documents-from-fbi-search-of-trumps-mar-a-lago-home">were designated</a> “top secret” or “top secret-sensitive compartmented information.” </p>
<p>Both classifications tip far to the serious end of the sensitivity spectrum. </p>
<p><a href="https://handbook.tts.gsa.gov/general-information-and-resources/business-and-ops-policies/top-secret/">Top secret-sensitive compartmented information</a> is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands. </p>
<p>One theory floated by <a href="https://www.usatoday.com/story/news/politics/2022/08/12/trump-says-mar-a-lago-documents-declassified-experts-disagree/10310614002/?gnt-cfr=1">Trump defenders</a> is that by simply handling the materials as president, Trump could have effectively declassified them. <a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html">It actually doesn’t work</a> that way – presidential declassification requires an override of <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information">Executive Order 13526</a>, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.</p>
<p>And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all <a href="https://www.dodig.mil/Portals/48/Documents/Programs/Whistleblower/2010_1206_CRS_Criminal_Prohibitions_Defense_Information.pdf?ver=2017-04-27-105018-560">national defense information, or NDI</a>, of which classified materials are only a portion. This kind of information <a href="https://www.politico.com/f/?id=00000161-d018-d933-a3e9-d7b9120b0000">includes a vast</a> array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A judge unsealed a search warrant that shows that the FBI is investigating Donald Trump for a possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<h2>The public can’t judge a case based on classified information</h2>
<p>Cases involving classified information or NDI are nearly impossible to referee from the cheap seats. </p>
<p>None of us will get to see the documents at issue, nor should we. Why? </p>
<p>Because they are classified. </p>
<p>Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void. </p>
<p>And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.</p>
<p>Historically, <a href="https://www.mtsu.edu/first-amendment/encyclopedia/case/43/espionage-act">Espionage Act cases</a> have been occasionally political and almost always politicized. <a href="https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917">Enacted at the beginning</a> of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy. </p>
<p>But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War <a href="https://billofrightsinstitute.org/activities/handout-b-liberty-and-security-civil-liberties-and-mccarthyism">anti-communist politicians</a> like Sen. Joe McCarthy in the 1940s and 1950s. The case of <a href="https://www.history.com/this-day-in-history/rosenbergs-executed">Julius and Ethel Rosenberg</a>, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era. </p>
<p>In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower <a href="https://www.britannica.com/biography/Daniel-Ellsberg">Daniel Ellsberg</a>. Since Sept. 11, 2001, officials have used the act against whistleblowers like <a href="https://www.whistleblowers.org/whistleblowers/edward-snowden/">Edward Snowden</a>. Because of this history, the act is often assailed for chilling First Amendment political speech and activities. </p>
<p>The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/you-dont-have-to-be-a-spy-to-violate-the-espionage-act-and-other-crucial-facts-about-the-law-trump-may-have-broken-188708">article</a> originally published Aug. 15, 2022.</em></p><img src="https://counter.theconversation.com/content/207373/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas A. Durkin was an expert witness on behalf of Julian Assange in his UK proceeding.</span></em></p><p class="fine-print"><em><span>Joseph Ferguson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Spy cases are rare. More typically, as in the Trump indictment, the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoThomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2072052023-06-08T02:12:48Z2023-06-08T02:12:48ZAlien spacecraft allegations suggest the Pentagon has approved conspiracy theories – about itself<figure><img src="https://images.theconversation.com/files/530607/original/file-20230607-27-f0z5ax.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C5393%2C3593&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Claims the US government has secretly retrieved crashed alien spacecraft and their non-human occupants are hardly new. They are firmly entrenched in post-war American UFO lore and conspiracy theory, inspiring the most famous narrative in ufology: the “<a href="https://www.britannica.com/event/Roswell-incident">Roswell incident</a>”. </p>
<p>Now, however, journalists Leslie Kean and Ralph Blumenthal have injected fresh vigour into these ageing claims – apparently with the Pentagon’s approval.</p>
<p><a href="https://thedebrief.org/intelligence-officials-say-u-s-has-retrieved-non-human-craft/">In an article</a> for science and technology news site The Debrief, they report the US government, its allies, and defence contractors have retrieved multiple craft of non-human origin. </p>
<p>Additionally, they report this information has been illegally withheld from US Congress, the All-domain Anomaly Resolution Office <a href="https://www.defense.gov/News/Releases/Release/Article/3100053/dod-announces-the-establishment-of-the-all-domain-anomaly-resolution-office/">established</a> by the US Department of Defense in 2022 to look into UFOs, and the public. </p>
<h2>What are the claims?</h2>
<p>The primary source for the new claims is former US intelligence official David Grusch.</p>
<p>Grusch’s credentials, verified by Kean and Blumenthal, are impressive. He is a veteran of the <a href="https://www.nga.mil">National Geospatial-Intelligence Agency</a> and the <a href="https://www.nro.gov">National Reconnaissance Office</a>. He represented both organisations on the US government’s task force studying unidentified aerial phenomena (the official term for UFOs).</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/530613/original/file-20230607-22-xl8wwg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530613/original/file-20230607-22-xl8wwg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=604&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530613/original/file-20230607-22-xl8wwg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=604&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530613/original/file-20230607-22-xl8wwg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=604&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530613/original/file-20230607-22-xl8wwg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=759&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530613/original/file-20230607-22-xl8wwg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=759&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530613/original/file-20230607-22-xl8wwg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=759&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Unidentified aerial phenomena, such as this video taken by a US Navy pilot released in 2020, have been a source of renewed interest in recent years.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:Gimbal_The_First_Official_UAP_Footage_from_the_USG_for_Public_Release.webm">US Navy / Wikimedia</a></span>
</figcaption>
</figure>
<p>Grusch <a href="https://thedebrief.org/intelligence-officials-say-u-s-has-retrieved-non-human-craft/">says</a> the retrieved materials are:</p>
<blockquote>
<p>of exotic origin (non-human intelligence, whether extraterrestrial or unknown origin) based on the vehicle morphologies and material science testing and the possession of unique atomic arrangements and radiological signatures.</p>
</blockquote>
<p>Grusch’s claims are supported by Jonathan Grey, who works for the National Air and Space Intelligence Center, where he focuses on analysis of unidentified aerial phenomena. Grey told Kean and Blumenthal: </p>
<blockquote>
<p>The non-human intelligence phenomenon is real. We are not alone […] Retrievals of this kind are not limited to the United States.</p>
</blockquote>
<h2>How credible are the claims?</h2>
<p>Kean and Blumenthal are credible and accomplished reporters on UFOs. </p>
<p>In 2017, writing with Helene Cooper for the <a href="https://www.nytimes.com/2017/12/16/us/politics/pentagon-program-ufo-harry-reid.html?_r=0">New York Times</a>, they revealed a secret US$22 million Pentagon UFO research program. That article did much to initiate a wider rethinking about UFOs, avoiding stereotypes, stigma and sensationalism.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-us-military-has-officially-published-three-ufo-videos-why-doesnt-anybody-seem-to-care-137498">The US military has officially published three UFO videos. Why doesn't anybody seem to care?</a>
</strong>
</em>
</p>
<hr>
<p>Most of the subsequent “<a href="https://theconversation.com/the-us-military-has-officially-published-three-ufo-videos-why-doesnt-anybody-seem-to-care-137498">UFO turn</a>” in US defence policy and public discourse has focused on images and eyewitness testimony of anomalous airborne objects. Now, Kean and Blumenthal may have brought anomalous objects themselves – and even their supposed non-human occupants – into the conversation.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/cH2B90uhFGw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">David Grusch’s claims have reached the public through a multi-pronged media effort.</span></figcaption>
</figure>
<p>Shortly after the Debrief article, Australian journalist Ross Coulthart’s <a href="https://www.youtube.com/watch?v=ZSj7QsHRxHQ">interview with Grusch</a> appeared on US news network News Nation. In this interview, Grusch also claimed some of the retrieved craft contained “dead pilots”. Former Deputy Assistant Secretary of Defense for Intelligence, Christopher Mellon, has also published an article in <a href="https://www.politico.com/news/magazine/2023/06/03/ufo-crash-materials-intelligence-00100077">Politico</a> calling for greater transparency. </p>
<p>This looks a lot like an orchestrated effort to convince the public (and US Congress) something much more substantial than “things in the sky we can’t explain” is going on. </p>
<h2>Approved by the Pentagon?</h2>
<p>Grusch seems to have followed Pentagon protocol in publishing his information. Kean and Blumenthal write Grusch: </p>
<blockquote>
<p>provided the Defense Office of Prepublication and Security Review at the Department of Defense with the information he intended to disclose to us. His on-the-record statements were all “cleared for open publication” on April 4 and 6, 2023, in documents provided to us.</p>
</blockquote>
<p>What does that mean? A <a href="https://www.esd.whs.mil/Security-Review/PrePublication-and-Manuscripts/#:%7E:text=A%20prepublication%20security%20and%20policy%20review%20is%20the%20process%20by,controlled%2C%20or%20operational%20security%20related">Prepublication and Security Review</a> is how the Pentagon confirms information proposed for public release is reviewed to ensure compliance with established national and Department of Defense policies, and to determine it:</p>
<blockquote>
<p>contains no classified, controlled unclassified, export-controlled, or operational security related information.</p>
</blockquote>
<p>If Grusch’s information is true, it is surely both “classified” and “operational security related”. So why would the Pentagon approve its publication?</p>
<p>If Grusch’s information is false, it would probably not qualify as classified or operational security related. But this raises another question: why would the Pentagon approve the publication of an unfounded conspiracy theory about itself?</p>
<p>Doing so would likely mislead the public, journalists, and Congress. It would also undermine the Pentagon’s own attempt to understand the unidentified aerial phenomena problem: the All-domain Anomaly Resolution Office.</p>
<h2>An official denial</h2>
<p>Indeed, the All-domain Anomaly Resolution Office <a href="https://www.youtube.com/watch?v=ZSj7QsHRxHQ">told News Nation</a> it: </p>
<blockquote>
<p>has not discovered any verifiable information to substantiate claims that any programs regarding the possession or reverse-engineering of extraterrestrial materials have existed in the past or exist currently.</p>
</blockquote>
<p>Grusch has an explanation for this apparent ignorance. When it comes to unidentified aerial phenomena investigations, he says, the US government’s left hand doesn’t know what its right is doing, with: </p>
<blockquote>
<p>multiple agencies nesting [unidentified aerial phenomena] activities in conventional secret access programs without appropriate reporting to various oversight authorities.</p>
</blockquote>
<p>Timothy Good’s classic 1987 exploration of UFO investigations, <a href="https://www.andrewlownie.co.uk/authors/timothy-good/books/above-top-secret">Above Top Secret</a>, described similar bureaucracy.</p>
<h2>Nested activities and segregated knowledge</h2>
<p>The notion of “nested” unidentified aerial phenomena activities, segregating knowledge within vast bureaucracies, is partly what makes Grusch’s claims both intriguing and (for now) unverifiable. </p>
<p>If this is the case, organisations focusing on unidentified aerial phenomena, such as the All-domain Anomaly Resolution Office, may operate in earnest and report transparently on the best information they have. Yet they may also be deprived of information essential to their activities. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/is-there-evidence-aliens-have-visited-earth-heres-whats-come-out-of-us-congress-hearings-on-unidentified-aerial-phenomena-183443">Is there evidence aliens have visited Earth? Here's what's come out of US congress hearings on 'unidentified aerial phenomena'</a>
</strong>
</em>
</p>
<hr>
<p>This would make them little more than PR fronts, designed to create the impression of meaningful action. </p>
<p>In the absence of direct experience of unidentified aerial phenomena, most of us rely on <em>information</em> about them to form our beliefs. Scrutinising how this information is produced and distributed is essential. </p>
<p>US government activity in this area will continue. Congressman James Comer, chair of the House Oversight Committee, has <a href="https://www.newsnationnow.com/politics/house-oversight-committee-hearings-ufos/">said</a> he will hold a hearing on UFOs in response to Grusch’s allegations.</p>
<hr>
<p><em>Correction: A previous version of this article suggested Grusch’s claims of “dead pilots” were reported by Leslie Kean and Ralph Blumenthal in The Debrief. The article has been amended to show these claims were in fact made in Grusch’s interview with Ross Coulthart for News Nation.</em></p><img src="https://counter.theconversation.com/content/207205/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Dodd does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A former intelligence official claims the US government has retrieved multiple craft of non-human origin, along with the occupants’ bodies.Adam Dodd, Tutor, School of Communication and the Arts, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1897372022-08-31T19:28:30Z2022-08-31T19:28:30ZTrump faces possible obstruction of justice charges for concealing classified government documents – 2 important things to know about what this means<figure><img src="https://images.theconversation.com/files/482102/original/file-20220831-20-rof5aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Department of Justice photo shows of documents seized during its Mar-a-Lago search. </span> <span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v1/items/954a1ccd337c4f5a8c588260e2abfefc/preview/AP22243147136668.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Department of Justice via Associated Press </a></span></figcaption></figure><p><em><a href="https://s3.documentcloud.org/documents/22272801/justice-dept-response-to-trump-motion-for-special-master.pdf">A court filing by the Justice Department</a> just minutes before midnight on Aug. 30, 2022, was a sharply worded attack on former President Donald Trump’s request for a so-called “special master” – a neutral arbiter – to review the documents <a href="https://www.washingtonpost.com/national-security/2022/08/08/trump-mar-a-lago-search-fbi/">the FBI seized at his estate</a>, Mar-a-Lago, earlier in the month.</em></p>
<p><em>Bottom line: The Justice Department says the documents don’t belong to Trump and says someone has deliberately concealed documents marked classified from a federal grand jury investigation. The department has not yet publicly stated who they believe is guilty of this crime – whether Trump himself, members of his team, or both.</em></p>
<p><em>In the filing, the Justice Department wrote, “The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”</em></p>
<p><em>This latest revelation has prompted observers to say that <a href="https://www.vox.com/policy-and-politics/2022/8/31/23330643/trump-doj-court-special-master-obstruction">obstruction of justice </a> charges are at stake. But that’s a broad term that covers many wrongful acts. The specific crime at issue here is obstructing a federal investigation.</em></p>
<p><em>The Conversation asked Georgia State University legal expert <a href="http://www.clarkcunningham.org/">Clark Cunningham</a>, an <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">authority on search warrants</a>, to describe the meaning of obstruction, and why Trump may be charged with this crime.</em></p>
<h2>The crime of obstruction, and a particular version of it</h2>
<p>There are <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-73">21 different federal crimes</a> that involve obstruction of justice. One of the obstruction laws, called Section 1519, is violated if someone “<a href="https://www.law.cornell.edu/uscode/text/18/1519">knowingly conceals any document with the intent to obstruct</a>” – or block – a federal investigation. That’s obstruction of a federal investigation, and <a href="https://www.law.cornell.edu/uscode/text/18/1519">conviction for this crime</a> can result in up to 20 years of prison. </p>
<p>For example, Jesse Benton, who managed Ron Paul’s 2012 presidential campaign, was convicted of violating Section 1519 when <a href="https://case-law.vlex.com/vid/united-states-v-benton-894813523">he concealed improper campaign payments</a> from the Federal Election Commission. Trump later <a href="https://www.courier-journal.com/story/news/politics/2021/09/20/jesse-benton-indicted-rand-paul-mitch-mcconnell-former-campaign-manager/5791086001/">pardoned Benton</a> <a href="https://www.courier-journal.com/story/news/politics/2020/12/24/trump-pardons-jesse-benton-ex-campaign-manager-rand-paul-mitch-mcconnell/4042657001/">in December 2020.</a></p>
<p>The FBI cites Section 1519 in its <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">Mar-a-Lago search warrant</a> and in the recently <a href="https://www.axios.com/2022/08/26/doj-fbi-affidavit-trump-mar-a-lago">unsealed affidavit</a> submitted to a Florida court to obtain the warrant. But until the Department of Justice’s Aug. 30, 2022, midnight court filing, the public did not know what kind of concealment and what kind of obstruction the department was alleging Trump committed.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="White pages are shown with text, much of it blacked out." src="https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=484&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=484&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=484&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Pages from the FBI’s redacted search warrant affidavit for former President Donald Trump’s Mar-a-Lago estate are shown.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/in-this-photo-illustration-pages-are-viewed-from-the-governments-of-picture-id1418610718">Mario Tama/Getty Images</a></span>
</figcaption>
</figure>
<h2>Why the government alleges this crime was committed at Mar-a-Lago</h2>
<p>A <a href="https://abc7chicago.com/donald-trump-maralago-fbi-search-classified-documents/12175658">federal grand jury subpoena</a> demanded on May 11, 2022, that Trump turn over all documents with classified markings to the government. </p>
<p>The FBI was <a href="https://s3.documentcloud.org/documents/22272801/justice-dept-response-to-trump-motion-for-special-master.pdf">informed by Trump representatives in a sworn statement at Mar-a-Lago on June 3</a> that all documents marked classified were being turned over that day. This statement has now been proved to be false.</p>
<p>Trump was aware of the FBI’s June 3 visit to Mar-a-Lago. In his own court filings he has said that <a href="https://www.documentcloud.org/documents/22164310-trump-motion-for-judicial-oversight-and-additional-relief-8-22-22">he personally met the FBI agents</a> when they arrived.</p>
<p>Despite the sworn statement that no more documents marked as classified remained at Mar-a-Lago, the FBI found 76 documents marked classified in a storage room during its subsequent Aug. 8, 2022 search of Mar-a-Lago. They <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.48.0_1.pdf">also found documents</a> marked “Top Secret” in a container in Trump’s private office. The agents also seized a desk drawer in that office containing documents marked classified that were mixed in with other items, including Trump’s passports.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people gather outside a government building and look at a blacked-out document. Some of them hold cameras." src="https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Journalists in West Palm Beach look at the Justice Department’s heavily blacked-out document on Aug. 26, 2022.</span>
<span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v1/items/bbdbb7ee85e44de993efca9c5f3b8703/preview/AP22238621819824.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Jim Rassol/Associated Press</a></span>
</figcaption>
</figure>
<p>The government believes that the false statement made to the agents on June 3, as well as other evidence they have not yet disclosed, shows <a href="https://s3.documentcloud.org/documents/22272801/justice-dept-response-to-trump-motion-for-special-master.pdf">there was a deliberate plan to conceal</a> documents that should have been given to the grand jury.</p>
<p>Before the Aug. 30 filing, it appeared that Trump’s most serious risk of criminal liability involved <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">violating the Espionage Act</a> by willfully retaining documents relating to national security after he left office. Revelation of these new details emphasize another offense to be added to the list of his possible crimes: obstruction of a federal investigation.</p><img src="https://counter.theconversation.com/content/189737/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A government filing on August 30, 2022, alleges that efforts were likely taken “to obstruct the government’s investigation” into classified documents held at Donald Trump’s Florida home.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1887082022-08-15T17:35:19Z2022-08-15T17:35:19ZYou don’t have to be a spy to violate the Espionage Act – and other crucial facts about the law Trump may have broken<figure><img src="https://images.theconversation.com/files/479036/original/file-20220814-50347-gx33u5.jpeg?ixlib=rb-1.1.0&rect=24%2C12%2C8218%2C5475&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump, at the Conservative Political Action Conference, Aug. 6, 2022, in Dallas. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-at-the-news-photo/1413332675?adppopup=true">Brandon Bell/Getty Images</a></span></figcaption></figure><p>The <a href="https://www.nytimes.com/live/2022/08/12/us/trump-news">federal court-authorized search</a> of former President Donald Trump’s Florida estate has brought renewed attention to the obscure but infamous law known as the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37">Espionage Act of 1917</a>. A section of the law was <a href="https://www.nytimes.com/2022/08/12/us/trump-espionage-act-laws-fbi.html">listed as one of three potential violations</a> under Justice Department investigation. </p>
<p><a href="https://theconversation.com/free-speech-wasnt-so-free-103-years-ago-when-seditious-and-unpatriotic-speech-was-criminalized-in-the-us-160835">The Espionage Act</a> has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use <a href="https://apnews.com/article/north-america-donald-trump-ap-top-news-elections-barack-obama-9d9a76067d5b47e5a290dc9832369c92">occurred during the Obama administration</a>, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage. </p>
<p><a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">We are</a> both <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">attorneys who specialize in</a> and teach national security law. While navigating the sound and fury over the Trump search, here are a few things to note about the Espionage Act.</p>
<hr>
<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/you-dont-have-to-be-a-spy-to-violate-the-espionage-act-and-other-crucial-facts-about-the-law-trump-may-have-broken-188708&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/us/topics/audio-narrated-99682">here</a>.</em></p>
<hr>
<h2>Espionage Act seldom pertains to espionage</h2>
<p>When you hear “espionage,” you may think spies and international intrigue. One portion of the act – <a href="https://www.law.cornell.edu/uscode/text/18/794">18 U.S.C. section 794</a> – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment. </p>
<p>That aspect of the law is best exemplified by the convictions of <a href="https://www.npr.org/2020/12/30/951334047/jonathan-pollard-cold-war-spy-who-spent-30-years-in-u-s-prison-arrives-in-israel">Jonathan Pollard in 1987</a>, for spying for and providing top-secret classified information to Israel; <a href="https://www.fbi.gov/history/famous-cases/aldrich-ames">former Central Intelligence Agency officer Aldrich Ames in 1994</a>, for being a double agent for the Russian KGB; and, in 2002, former <a href="https://www.fbi.gov/history/famous-cases/robert-hanssen">FBI agent Robert Hanssen, who was caught selling U.S. secrets</a> to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences. </p>
<p>But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-2057-synopses-key-national-defense-and-national-security-provisions">certain sensitive government information</a>. </p>
<p>Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for its return. All of these prohibited activities fall under the separate and more commonly applied section of the act – <a href="https://www.law.cornell.edu/uscode/text/18/793">18 U.S.C. section 793</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a military uniform is escorted onto a vehicle by a man in a dark shirt and khakis." src="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479037/original/file-20220814-50256-2fy6vt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chelsea Manning, in uniform, after being sentenced on Aug. 21, 2013, to 35 years in prison after being found guilty of several counts under the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/army-private-first-class-bradley-manning-is-escorted-by-news-photo/177149744?adppopup=true">Photo by Mark Wilson/Getty Images</a></span>
</figcaption>
</figure>
<h2>A violation does not require an intention to aid a foreign power</h2>
<p>Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.</p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-documents-explanations.html">Current claims by Trump supporters</a> of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.” </p>
<p>One of the most famous Espionage Act cases, <a href="https://www.nytimes.com/2019/05/23/us/politics/assange-indictment.html">known as “Wikileaks</a>,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed. </p>
<p>Two recent senior Democratic administration officials – <a href="https://www.reuters.com/article/us-people-sandyberger-obituary/former-u-s-national-security-adviser-sandy-berger-dies-idUSKBN0TL1OL20151203">Sandy Berger</a>, national security adviser during the Clinton administration, and <a href="https://www.britannica.com/biography/David-Petraeus">David Petraeus</a>, CIA director under during the Obama administration – <a href="https://www.washingtonpost.com/world/national-security/how-david-petraeus-avoided-felony-charges-and-possible-prison-time/2016/01/25/d77628dc-bfab-11e5-83d4-42e3bceea902_story.html">each pleaded</a> guilty to misdemeanors <a href="https://www.justice.gov/archive/opa/pr/2005/April/05_crm_155.htm">under the threat</a> of Espionage Act prosecution. </p>
<p>Berger took home a classified document – <a href="https://www.washingtontimes.com/news/2022/aug/9/national-archives-documents-center-trump-raid-have/">in his sock</a> – at the end of his tenure. Petraeus <a href="https://www.politico.com/story/2016/06/fbi-petraeus-shared-top-secret-info-with-reporters-224023">shared classified information</a> with an unauthorized person for reasons having nothing to do with a foreign government. </p>
<h2>The act is not just about classified information</h2>
<p>Some of the documents the FBI sought and found in the Trump search <a href="https://www.npr.org/2022/08/12/1117277865/read-the-full-warrant-documents-from-fbi-search-of-trumps-mar-a-lago-home">were designated</a> “top secret” or “top secret-sensitive compartmented information.” </p>
<p>Both classifications tip far to the serious end of the sensitivity spectrum. </p>
<p><a href="https://handbook.tts.gsa.gov/general-information-and-resources/business-and-ops-policies/top-secret/">Top secret-sensitive compartmented information</a> is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands. </p>
<p>One theory floated by <a href="https://www.usatoday.com/story/news/politics/2022/08/12/trump-says-mar-a-lago-documents-declassified-experts-disagree/10310614002/?gnt-cfr=1">Trump defenders</a> is that by simply handling the materials as president, Trump could have effectively declassified them. <a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html">It actually doesn’t work</a> that way – presidential declassification requires an override of <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information">Executive Order 13526</a>, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.</p>
<p>And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all <a href="https://www.dodig.mil/Portals/48/Documents/Programs/Whistleblower/2010_1206_CRS_Criminal_Prohibitions_Defense_Information.pdf?ver=2017-04-27-105018-560">national defense information, or NDI</a>, of which classified materials are only a portion. This kind of information <a href="https://www.politico.com/f/?id=00000161-d018-d933-a3e9-d7b9120b0000">includes a vast</a> array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A judge unsealed a search warrant that shows that the FBI is investigating Donald Trump for a possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<h2>The public can’t judge a case based on classified information</h2>
<p>Cases involving classified information or NDI are nearly impossible to referee from the cheap seats. </p>
<p>None of us will get to see the documents at issue, nor should we. Why? </p>
<p>Because they are classified. </p>
<p>Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void. </p>
<p>And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.</p>
<p>Historically, <a href="https://www.mtsu.edu/first-amendment/encyclopedia/case/43/espionage-act">Espionage Act cases</a> have been occasionally political and almost always politicized. <a href="https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917">Enacted at the beginning</a> of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy. </p>
<p>But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War <a href="https://billofrightsinstitute.org/activities/handout-b-liberty-and-security-civil-liberties-and-mccarthyism">anti-communist politicians</a> like Sen. Joe McCarthy in the 1940s and 1950s. The case of <a href="https://www.history.com/this-day-in-history/rosenbergs-executed">Julius and Ethel Rosenberg</a>, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era. </p>
<p>In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower <a href="https://www.britannica.com/biography/Daniel-Ellsberg">Daniel Ellsberg</a>. Since Sept. 11, 2001, officials have used the act against whistleblowers like <a href="https://www.whistleblowers.org/whistleblowers/edward-snowden/">Edward Snowden</a>. Because of this history, the act is often assailed for chilling First Amendment political speech and activities. </p>
<p>The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.</p><img src="https://counter.theconversation.com/content/188708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas A. Durkin was an expert witness on behalf of Julian Assange in his UK proceeding </span></em></p><p class="fine-print"><em><span>Joseph Ferguson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two national security law experts explain how the Espionage Act isn’t only about international intrigue, and share other important points about the law that was invoked in a search of Trump’s estate.Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoThomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1886842022-08-12T22:28:00Z2022-08-12T22:28:00ZUnsealed court documents show the FBI was looking for evidence Trump violated the Espionage Act and other laws – here’s how the documents seized show possible wrongdoing<figure><img src="https://images.theconversation.com/files/478977/original/file-20220812-15-ho14f1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A police officer drives by Mar-a-Lago on August 9, 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/local-law-enforcement-officers-are-seen-in-front-of-the-home-of-picture-id1242402806?s=2048x2048">Giorgio Viera/AFP via Getty Images </a></span></figcaption></figure><p><em>The <a href="https://int.nyt.com/data/documenttools/mar-a-lago-search-warrant-and-inventory/6478c5980764438f/full.pdf">FBI recovered</a> confidential and top-secret items from Mar-a-Lago during its Aug. 8, 2022, search of the estate – pointing to former President Donald Trump’s potential violation of several federal laws.</em> </p>
<p><em>A Florida federal judge – the same one who issued the warrant to search Trump’s estate – <a href="https://www.courthousenews.com/wp-content/uploads/2022/08/trump-search-warrant-unseal-order.pdf">ordered on Aug. 12, 2022</a>, that the document be made public – along with an inventory of items seized during the FBI’s raid.</em> </p>
<p><em>The unsealed documents <a href="https://www.nytimes.com/live/2022/08/12/us/trump-news">seem to indicate</a> that the U.S. Department of Justice believes <a href="https://www.wsj.com/articles/fbi-recovered-eleven-sets-of-classified-documents-in-trump-search-inventory-shows-11660324501?st=ql9humks0e7gckv&reflink=desktopwebshare_permalink">Trump may have violated</a> the Espionage Act, as well as other criminal laws relating to the handling of public records.</em></p>
<p><em><a href="http://www.clarkcunningham.org/">Clark Cunningham</a>, Georgia State University legal scholar and an <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">expert on search warrants</a>, explains how this new information connects to possible criminal wrongdoing by the former president.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older white man wearing a black suit is seen walking to a brown lectern, with the American flag standing to his left." src="https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. Attorney General Merrick Garland discussed the FBI’s search on Aug. 11, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/attorney-general-merrick-garland-arrives-to-deliver-a-statement-at-picture-id1242440351?s=2048x2048">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>These laws were potentially violated</h2>
<p>The <a href="https://int.nyt.com/data/documenttools/mar-a-lago-search-warrant-and-inventory/6478c5980764438f/full.pdf">released warrant</a> authorized the FBI to search for evidence that Trump has violated three key laws.</p>
<p>First, there is the <a href="https://www.law.cornell.edu/uscode/text/18/793">Espionage Act</a>, which applies to possession of information related to the national defense that could be used to harm the U.S. or aid a foreign adversary. This law applies to someone who, like Trump, initially had lawful possession of such information but who, after their time in office ended, refuses to return it to the government.</p>
<p>Then, there is <a href="https://www.law.cornell.edu/uscode/text/18/1519">obstruction of justice</a>, which includes concealing documents to obstruct a federal investigation. </p>
<p>Finally, there is the <a href="https://www.law.cornell.edu/uscode/text/18/2071">Public Records statute</a>, which prohibits someone entrusted with a public record from “concealing” that document. </p>
<h2>What’s in the inventory</h2>
<p>The inventory of items taken by the FBI from Mar-a-Lago apparently shows Trump may have violated these laws in a number of different ways. </p>
<p>The <a href="https://int.nyt.com/data/documenttools/mar-a-lago-search-warrant-and-inventory/6478c5980764438f/full.pdf">inventory shows</a> that FBI agents seized documents designated “SCI,” which refers to <a href="https://csrc.nist.gov/glossary/term/sensitive_compartmented_information">Sensitive Compartmented Information</a>. In simple terms, this is classified information that comes from intelligence sources – and must be handled only within secured government locations. </p>
<p>Because this kind of sensitive information can reveal both methods and procedures for collecting intelligence – including the identity of undercover agents in hostile countries – the presence of such materials at Mar-a-Lago may be a violation of the <a href="https://www.law.cornell.edu/uscode/text/18/793">Espionage Act</a>, if Trump was willfully retaining this information after the government demanded its return.</p>
<p>The inventory also refers to numerous “top-secret” documents. <a href="https://www.law.cornell.edu/cfr/text/18/3a.11">Federal law defines</a> <a href="https://theconversation.com/heres-how-government-documents-are-classified-to-keep-sensitive-information-safe-188687">this as</a> “information or material which requires the highest degree of protection” and could threaten national security. The FBI’s discovery of top-secret documents could corroborate <a href="https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/">The Washington Post’s report</a> that the FBI search included classified documents related to nuclear weapons. The FBI also seized documents designated “secret” and “confidential.”</p>
<p>All told, the FBI removed 27 boxes and other individually listed items, including photographs. </p>
<p>Trump received a federal subpoena <a href="https://thehill.com/blogs/blog-briefing-room/news/3597357-doj-subpoenaed-trump-months-before-mar-a-lago-search-report/">in the spring of 2022</a> to return documents taken from the White House. </p>
<p>So if the inventory includes items that should have been returned in response to the subpoena, but were not, that can be evidence of obstruction of justice and concealment of public records. </p>
<h2>A defense that might not hold</h2>
<p><a href="https://www.nytimes.com/2022/08/10/nyregion/trump-fbi-planting-evidence.html">Trump has suggested</a> that the FBI may have planted evidence during its search. </p>
<p>However, <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">federal rules about search warrants</a> provide strong protection against such a possibility, by requiring that a government officer present when a search warrant is carried out “prepare and verify an inventory” of property seized in the presence of “another officer” and “the person from whom, or from whose premises, the property was taken.” </p>
<p>The officer must then “give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken,” according to these rules. </p>
<p><a href="https://www.nytimes.com/live/2022/08/11/us/garland-trump-statement-doj#garland-fbi-trump-transcript">U.S. Attorney General Merrick Garland said</a> during his Aug. 11 statement about the search that these procedures were followed. “Copies of both the warrant and the FBI property receipt were provided on the day of the search to the former president’s counsel, who was on site during the search,” Garland said.</p>
<p>The federal rules say that if the owner of the premises is not present, another “credible person” can verify the inventory – in this case, the unsealed records confirm that Trump’s attorney, Christine Bobbs, acknowledged receipt of the inventory at 6:19 p.m. on Aug. 8, 2022.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older white man with white hair, wearing a navy suit and red tie, waves as he walks to a black SUV. Behind him a man wearing sunglasses and a dark suit stands." src="https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Donald Trump waves while walking to his car in New York City on Aug. 10, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/former-us-president-donald-trump-waves-while-walking-to-a-vehicle-of-picture-id1242419266?s=2048x2048">Stringer/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Limited precedent for unsealing these types of documents</h2>
<p>It’s relatively rare for a judge to unseal court records of a search warrant, unless an actual criminal prosecution is underway. </p>
<p>One other notable exception occurred in December 2016 when a New York federal court issued <a href="https://lasvegassun.com/news/2016/dec/20/court-to-unseal-clinton-email-search-warrant/">an unsealing order </a> for <a href="https://www.politico.com/story/2016/12/clinton-email-investigation-search-warrant-released-232852">the Oct. 30, 2016, search warrant</a> requested by former FBI Director James Comey to investigate emails improperly stored by former Secretary of State Hillary Clinton. </p>
<p>Unlike the Aug. 12, 2022 order regarding Trump, the unsealing of the Clinton-related warrant included the underlying affidavit. An affidavit is a statement made under oath to the issuing judge to obtain the warrant. </p>
<p>Disclosure of these documents provided the basis for a <a href="https://www.politico.com/story/2016/12/clinton-email-investigation-search-warrant-released-232852">firestorm of criticism</a> by Clinton allies that there was insufficient evidence to support the FBI’s warrant application. </p>
<p>As explained in a judge’s October 2016 order to make the search warrant <a href="http://www.politico.com/f/?id=00000159-184d-d63b-af7f-f97f95f80001">for the Clinton investigation public</a>, warrant application proceedings “have historically been highly secretive in nature and closed to the press and public.” In that case, the judge said that in deciding whether to unseal, <a href="http://www.politico.com/f/?id=00000159-184d-d63b-af7f-f97f95f80001">courts must consider</a> both the government’s interest in not compromising an ongoing criminal investigation and the need to protect the privacy and reputation of the person subject to the search who may never be charged with a crime. </p>
<p>However, for the Mar-a-Lago warrant, both the government and Trump, the subject of the search, <a href="https://news.yahoo.com/trump-says-wont-oppose-release-051945792.html">consented to the unsealing</a>.</p>
<p>True to <a href="https://www.npr.org/2016/03/16/126614141/merrick-garland-has-a-reputation-of-collegiality-record-of-republican-support">his reputation</a> for careful judgment, Garland went by the book in response to an avalanche of attacks from Trump allies demanding transparency about the search. The warrant and inventory have now been released for all to see through a proper court procedure – which Trump <a href="https://www.pbs.org/newshour/politics/donald-trump-wont-object-to-release-of-mar-a-lago-search-warrant">publicly endorsed</a>.</p><img src="https://counter.theconversation.com/content/188684/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal scholar analyzes the unsealed warrant for the FBI’s recent search of Donald Trump’s home and the list of materials seized there. The implications for Trump are potentially grave.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1884382022-08-09T18:12:53Z2022-08-09T18:12:53ZWhy searching an ex-president’s estate is not easily done – 4 important things to know about the FBI’s search of Mar-a-Lago<figure><img src="https://images.theconversation.com/files/478330/original/file-20220809-15076-ffr1dv.jpg?ixlib=rb-1.1.0&rect=0%2C100%2C4496%2C2887&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Palm Beach police officers stand near the Florida home of former President Donald Trump on Aug. 8, 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/palm-beach-police-officers-keep-watch-near-the-home-of-former-donald-picture-id1242395984?s=2048x2048">Eva Marie Uzcategui/Getty Images </a></span></figcaption></figure><p><em>The FBI’s raid of former President Donald Trump’s estate on Aug. 8, 2022, caught Trump by surprise – and prompted immediate speculation about exactly <a href="https://thehill.com/homenews/3594254-heres-what-we-know-about-the-fbi-search-of-trumps-mar-a-lago/">why and how</a> the law enforcement agency secured a search warrant.</em></p>
<p><em>“My beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents. … They even broke into my safe!” <a href="https://twitter.com/kyledcheney/status/1556775612920074240">Trump said in a statement</a> released through his political action committee, Save America.</em></p>
<p><em>Trump brought <a href="https://www.washingtonpost.com/politics/2022/02/12/trump-15-boxes/">15 boxes of classified materials</a> with him to Mar-a-Lago when he left the White House, and delayed returning the materials to National Archives officials for months.</em></p>
<p><em>The FBI and the Department of Justice have not commented on the raid, but the Justice Department is <a href="https://www.npr.org/2022/04/07/1091431136/justice-department-investigating-trumps-possible-mishandling-of-government-secre">known to be investigating</a> how Trump possibly mishandled government secrets. Trump is also facing other potential charges from the <a href="https://www.nytimes.com/2022/07/19/us/georgia-trump-electors.html">state of Georgia</a> stemming from his alleged interference with the 2020 elections.</em></p>
<p><em>Georgia State University legal scholar <a href="http://www.clarkcunningham.org/">Clark D. Cunningham</a>, an expert on <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">search warrants</a> and the criminal <a href="https://news.gsu.edu/2022/07/06/cunningham-legal-voice-for-jan-6-hearings-2020-presidential-election-investigation/">investigations of interference</a> in the 2020 election, explains what could have led to the raid and what the raid tells us about the state of the federal investigation into Trump’s activities.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older white man is shown seated at a desk, gesticulating with his mouth open, in an ornate-looking room. In front of him is a group of reporters and camera people with equipment." src="https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump speaks to the press from his Mar-a-Lago resort in Palm Beach, Fla., in 2018.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/president-donald-trump-speaks-to-the-press-after-talking-to-members-picture-id1064313534?s=2048x2048">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>1. There are legal hurdles to getting a search warrant</h2>
<p>The <a href="https://constitution.congress.gov/constitution/amendment-4/">U.S. Constitution requires</a> that all search warrants “particularly describe the place to be searched and the … things to be seized.” </p>
<p>This requirement can be traced in part to a <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">famous British case from the 1760s</a> when agents of King George III searched the house of <a href="https://www.britannica.com/biography/John-Wilkes">John Wilkes</a>, an opposition member of Parliament, for incriminating papers. The warrant they used was condemned by the courts as a “general warrant” because it did not specifically name Wilkes, his house or the seized papers. </p>
<p>Courts and commentators also criticized the Wilkes warrant because it was based on mere suspicion. The U.S. founders looked to the Wilkes warrant as an example of what the Constitution should prevent and added <a href="https://constitution.congress.gov/constitution/amendment-4/">the Fourth Amendment</a> – requiring that search warrants only be issued “upon probable cause, supported by Oath.” </p>
<p>Criminal <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">procedure laws</a> help enforce these constitutional requirements by requiring search warrants to particularly describe “evidence of a crime … or other items illegally possessed.” </p>
<p>Only judges can issue search warrants, and they must find, <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">based on sworn testimony</a>, that there is probable cause that such evidence or items will be found in the location described in the warrant.</p>
<p>This means that a judge must have found that there was probable cause that either a crime had been committed, or that Trump was illegally possessing items taken from the White House. The FBI’s request for a search warrant might also have indicated concern that these documents would either be destroyed or moved off of the premises.</p>
<h2>2. There are also potential policy hurdles</h2>
<p>In February 2020, then-Attorney General William Barr <a href="https://www.nytimes.com/2020/02/05/us/politics/barr-2020-investigations.html">announced new restrictions </a> that require the FBI and other law enforcement agencies to <a href="https://www.nytimes.com/2020/02/05/us/politics/barr-2020-investigations.html">get permission</a> from the Attorney General before investigating presidential candidates or their staff. </p>
<p>Barr’s successor, Attorney General Merrick Garland, has <a href="https://www.nytimes.com/2022/07/28/us/politics/trump-garland-investigation.html">kept this policy in place</a> – keeping in line with general <a href="https://www.justice.gov/about">Justice Department guidelines</a> that try to prevent politically charged investigations. </p>
<p>This means that this search would not have taken place without Garland’s approval. Given the generally strong tradition of <a href="https://www.lawfareblog.com/independence-and-accountability-department-justice">political independence</a> at the Justice Department, it is not surprising that President Joe <a href="https://www.newsweek.com/did-biden-know-about-fbi-search-trumps-mar-lago-what-we-know-1732190">Biden and</a> his aides <a href="https://www.vox.com/policy-and-politics/2022/8/9/23297734/donald-trump-mar-a-lago-fbi-raid">were not informed</a> in advance of the raid and found out on Twitter. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&rect=100%2C18%2C4055%2C2747&q=45&auto=format&w=1000&fit=clip"><img alt="A police officer leans against a police car while a woman walks past. Behind them are large white gates, shining blue and red because of the police lights." src="https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&rect=100%2C18%2C4055%2C2747&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump was not at Mar-a-Lago when the FBI searched the premises on Aug. 8, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/police-car-is-seen-outside-former-us-president-donald-trumps-in-picture-id1242395292?s=2048x2048">Giorgio Viera/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>3. The FBI might have found more than it was looking for</h2>
<p>The Supreme Court ruled in a <a href="https://supreme.justia.com/cases/federal/us/496/128/">1990 case</a> that police executing a warrant that authorized searching for the proceeds of a robbery could also lawfully seize weapons that were in plain view. </p>
<p>Assuming that the FBI’s warrant authorized only searching for classified documents taken from the White House, if the FBI found “in plain view” other evidence of crimes related to the 2020 election or <a href="https://www.cnn.com/2022/07/10/politics/jan-6-us-capitol-riot-timeline/index.html">Jan. 6, 2021, Capitol insurrection</a>, they likely could have taken that, as well. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A few people - one of them yelling - are shown with Trump flags and American flags on a dark evening on the street." src="https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supporters of former President Donald Trump protest outside his Mar-a-Lago home following the FBI’s raid on Aug. 8, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/supporters-of-former-president-donald-trump-shout-as-kamrel-eppinger-picture-id1242396102?s=2048x2048">Eva Marie Uzcategui/Getty Images</a></span>
</figcaption>
</figure>
<h2>4. There may be a connection with Trump’s possible election interference</h2>
<p>A federal <a href="https://www.nytimes.com/2022/05/12/us/politics/justice-department-trump-classified.html">grand jury, requested by the Justice Department, has been investigating</a> the presence of potentially classified documents at Mar-a-Lago since at least early May 2022. It seems likely that something has happened recently to cause this urgent search. One possibility is that the search warrant was issued based on information gathered in <a href="https://www.theguardian.com/us-news/2022/aug/08/donald-trump-fbi-raid-explainer">one or more of the criminal investigations</a> involving 2020 election interference. </p>
<p>In particular, the Department of Justice on July 12, 2022, obtained a <a href="https://int.nyt.com/data/documenttools/filing-by-thomas-windom-in-u-s/c8958e56f1860a88/full.pdf">warrant to search the cellphone</a> of <a href="https://www.pbs.org/newshour/politics/who-is-john-eastman-and-why-is-he-important-to-the-jan-6-hearings">John Eastman</a>, Trump’s former lawyer. As hearings by the Jan. 6 House committee have revealed, Eastman was a <a href="https://www.npr.org/2022/06/17/1105600072/who-is-john-eastman-the-trump-lawyer-at-the-center-of-the-jan-6-investigation">primary architect of the plan</a> to block Congress from certifying Biden’s victory.</p>
<p>There seems little doubt that the Justice Department had compelling, perhaps overwhelming, legal justifications for conducting this unprecedented search of a former president’s home. However, the secrecy required for Justice Department investigations and grand jury proceedings means that the country will have to be patient – the justifications for the search may become public only if and when criminal charges are filed.</p><img src="https://counter.theconversation.com/content/188438/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s a high bar for a federal judge to grant a search warrant, indicating there is probable cause that Trump committed a crime by holding classified documents at Mar-a-Lago.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1177852019-05-25T14:23:24Z2019-05-25T14:23:24ZAssange’s new indictment: Espionage and the First Amendment<p>Julian Assange, the co-founder of <a href="https://wikileaks.org/-Leaks-.html">WikiLeaks</a>, <a href="https://www.justice.gov/opa/press-release/file/1165636/download">has been charged by the U.S. Department of Justice</a> with a slew of Espionage Act violations that could keep him in prison for the rest of his life. </p>
<p>The new indictment expands an earlier one charging Assange with conspiring with Chelsea Manning, the former soldier convicted of leaking classified documents to Wikileaks, <a href="https://www.nytimes.com/2019/04/11/world/europe/julian-assange-wikileaks-ecuador-embassy.html?module=inline">to hack into a government computer</a>.</p>
<p>Assange is responsible for the dissemination of troves of classified American documents, including <a href="http://www.cnn.com/2010/US/10/22/wikileaks.iraq/index.html">hundreds of thousands of military reports</a>, <a href="https://www.theguardian.com/world/2010/nov/28/us-embassy-cable-leak-diplomacy-crisis">hundreds of thousands of diplomatic cables</a>, <a href="http://www.cnn.com/2011/US/04/24/wikileaks.guantanamo/index.html">hundreds of reports from the military prison in Guantanamo Bay</a> and <a href="https://www.nytimes.com/2017/03/07/world/europe/wikileaks-cia-hacking.html">thousands of secret CIA documents</a> revealing the agency’s techniques for hacking and surveillance.</p>
<p>The Espionage Act, a sweeping <a href="https://catalog.archives.gov/id/5721240">federal statute enacted a century ago</a>, imposes heavy criminal penalties for obtaining or disclosing classified information without proper authorization.</p>
<p>Beginning under President Barack Obama, recent years saw a dramatic increase in <a href="https://www.cpj.org/reports/2013/10/obama-and-the-press-us-leaks-surveillance-post-911.php">prosecutions under the Espionage Act</a>. But these prosecutions were directed at leakers of classified information — all government employees and government contractors — not at journalists or publishers. </p>
<p>That makes Assange’s indictment a watershed.</p>
<h2>Scarcity of prosecutions</h2>
<p>To be sure, threats of Espionage Act charges against journalists and newspapers were previously made, and in one case charges were even submitted to a grand jury. </p>
<p>In 1942, in the middle of World War II, the Chicago Tribune published a front-page story titled, “Navy Had Word of Jap Plan to Strike at Sea.” The story implied that the <a href="https://www.chicagotribune.com/news/local/breaking/ct-met-tribune-espionage-act-book-web-post-out-20171024-story.html">U.S. military had cracked Japan’s secret naval code</a> – which it had. </p>
<p>An incensed President Franklin Roosevelt demanded that Espionage Act charges be brought against the reporter, the managing editor and the Tribune itself. But unlike Assange’s grand jury, the Tribune’s grand jury <a href="https://www.chicagotribune.com/news/opinion/editorials/ct-battle-midway-japan-war-code-tribune-roosevelt-edit-0924-md-20160922-story.html">refused to issue indictments</a>.</p>
<p>In 1971 President Richard Nixon’s attorney general threatened the New York Times and the Washington Post with such prosecutions when the newspapers published the classified <a href="https://www.nytimes.com/2016/06/30/insider/1971-supreme-court-allows-publication-of-pentagon-papers.html">Pentagon Papers</a>. </p>
<p>More recently, Alberto Gonzales, attorney general under President George W. Bush, suggested that the New York Times and the Washington Post violated the Espionage Act when disclosing the National Security Agency’s secret surveillance program and <a href="http://old.seattletimes.com/html/opinion/2003019333_ryan26.html">the CIA’s secret prisons – the so-called “black sites”</a>. </p>
<p>But no prosecutions were brought in these matters.</p>
<p>One reason for the scarcity of such prosecutions is their questionable constitutionality. The language of the Espionage Act is so broad that, undoubtedly, some of its applications run afoul of the <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment to the U.S. Constitution</a>.</p>
<p>Yet some Espionage Act charges against journalists and publishers are likely to pass constitutional muster.</p>
<h2>Pentagon Papers to rape victims’ names</h2>
<p>In 1972 the U.S. government tried to stop The New York Times and The Washington Post from publishing the Pentagon Papers, a top-secret Department of Defense study on the Vietnam War.</p>
<p>In its well-known decision, the Supreme Court held that <a href="https://supreme.justia.com/cases/federal/us/403/713/">preventing the publication violated the First Amendment</a>. But a majority of the justices also thought that the newspapers could be possibly punished for the publication, even if stopping the publication was unconstitutional.</p>
<p>The Pentagon Papers decision was about the ability of government to stop the publication of information – in other words, its ability to impose a “prior restraint.” It left open the possibility of prosecuting the publishers after the publication.</p>
<p>A number of subsequent Supreme Court decisions did protect publishers who had published truthful information in violation of the law. For example, the court prohibited the punishment of a television station that <a href="https://supreme.justia.com/cases/federal/us/420/469/">broadcast the name of a rape victim</a> in violation of a state law, prohibited the punishment of a newspaper that <a href="https://supreme.justia.com/cases/federal/us/435/829/">published the content of confidential judicial proceedings</a>, and prohibited the punishment of a radio station that broke a federal statute by <a href="https://supreme.justia.com/cases/federal/us/532/514/">broadcasting an unlawfully recorded phone conversation</a>.</p>
<p>But while these publications were all constitutionally protected by the freedoms of speech and the press, none of them involved national security information. The outcome may be very different when it comes to the disclosure of secret national security materials.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/276407/original/file-20190524-187182-96j05r.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/276407/original/file-20190524-187182-96j05r.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/276407/original/file-20190524-187182-96j05r.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=328&fit=crop&dpr=1 600w, https://images.theconversation.com/files/276407/original/file-20190524-187182-96j05r.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=328&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/276407/original/file-20190524-187182-96j05r.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=328&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/276407/original/file-20190524-187182-96j05r.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=412&fit=crop&dpr=1 754w, https://images.theconversation.com/files/276407/original/file-20190524-187182-96j05r.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=412&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/276407/original/file-20190524-187182-96j05r.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=412&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chicago Tribune of June 7, 1942, featuring story, ‘Navy Had Word of Jap Plan to Strike at Sea.’</span>
<span class="attribution"><a class="source" href="https://www.chicagotribune.com/opinion/editorials/ct-battle-midway-japan-war-code-tribune-roosevelt-edit-0924-md-20160922-story.html">Screenshot, Chicago Tribune</a></span>
</figcaption>
</figure>
<p>The constitutionality of prosecutions for the unauthorized possession and publication of national security information is likely to depend on the specific dangers caused by the disclosure. </p>
<p>“No one would question but that a government might prevent … the publication of the sailing dates of transports or the number and location of troops,” <a href="https://supreme.justia.com/cases/federal/us/283/697/">said the Supreme Court in 1931</a>. </p>
<p>The pivotal questions are likely to be <a href="https://www.bbc.com/news/world-us-canada-11882092">whether lives were endangered</a> by the disclosure, or whether the government was simply trying <a href="https://www.law.cornell.edu/supremecourt/text/403/713">to suppress information</a> embarrassing to itself.</p>
<p>At the same time, some judges are likely to defer to the government’s own assessment of the materials and refuse to conduct an independent evaluation of the risks they posed.</p>
<p>“In my judgment the judiciary may not … redetermine for itself the probable impact of disclosure on the national security,” <a href="https://www.nytimes.com/1971/07/01/archives/texts-of-the-supreme-court-decision-opinions-and-dissents-in.html">wrote Justice John Marshall Harlan</a> for himself and two other justices in the Pentagon Papers decision. Some of today’s Supreme Court justices – <a href="https://www.law.cornell.edu/supct/html/03-6696.ZD1.html">Justice Clarence Thomas, for example – are likely to agree with the sentiment</a>.</p>
<p><a href="https://int.nyt.com/data/documenthelper/1037-julian-assange-espionage-act-indictment/426b4e534ab60553ba6c/optimized/full.pdf#page=1">The Assange indictment</a> includes specific allegations of publication of life-threatening information. The indictment accuses Assange of publishing the names of American intelligence sources, knowing full well that the publication would endanger their lives.</p>
<p>These charges might be found constitutional. Judges may be understandably reluctant to prohibit the government from punishing the publication of such sensitive life-threatening information.</p>
<h2>Dubious charges</h2>
<p>Assange’s indictment also involves a number of charges that are less likely to withstand constitutional scrutiny. </p>
<p>Assange is charged with “obtaining” information, including detainees’ assessment briefs from Guantanamo and Iraq rules-of-engagement files. </p>
<p>The danger posed by the disclosure of such information is far more questionable (and much of that information was also obtained and published by respectable media outlets).</p>
<p>Moreover, some of the charges against Assange are based on the theory that Assange aided and abetted <a href="https://www.apnews.com/569631f2b11c400cac05a29e0853624b">Chelsea Manning</a> to leak classified information to Assange himself. </p>
<p>Given that aiding and abetting can take the form of cajoling and encouraging, many national security journalists could become instant felons under this theory.</p>
<p>In fact, this is not the first time that the federal government advances such a constitutionally questionable claim in regard to a mainstream journalist. </p>
<p>In 2009 Fox News reporter James Rosen wrote an article that contained leaked classified information about North Korea. In 2010 the Obama administration <a href="https://archive.nytimes.com/www.nytimes.com/interactive/2013/05/25/us/politics/james-rosen-affidavit.html?_r=0">filed a search warrant application</a> where it argued that Rosen was a criminal aider and abettor of his State Department source in the criminal disclosure of classified information. </p>
<p>The warrant was granted, although Rosen was never indicted for the alleged crime. Indeed when the matter became known and an outcry ensued, the Department of Justice explicitly repudiated the theory as a basis for prosecuting journalists.</p>
<p>Nominally, that repudiation still stands today. Defending against the charge that the new indictment endangers the freedom of American journalism, the <a href="https://www.justice.gov/opa/press-release/file/1165636/download">Department of Justice issued a statement declaring that “Julian Assange is no journalist</a>.” </p>
<p>But that assertion lacks constitutional significance: First Amendment protections do not depend on one’s status as a journalist. First Amendment doctrine does not extend any special protections to the press.</p>
<p>What goes for Assange also goes for any person who obtains or discloses classified information.</p>
<p>That includes any journalist, including those at the New York Times – which in fact published much of the information mentioned in Assange’s indictment, albeit after careful reductions of potentially dangerous materials.</p>
<p><em>This is an updated version of <a href="https://theconversation.com/is-the-assange-indictment-a-threat-to-the-first-amendment-115420">an article</a> originally published on May 1, 2019.</em></p><img src="https://counter.theconversation.com/content/117785/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ofer Raban does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Julian Assange’s indictment under the Espionage Act, a sweeping law with heavy penalties for unauthorized receiving or disclosing of classified information, poses a threat to press freedom.Ofer Raban, Professor of Constitutional Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/778322017-05-17T01:19:23Z2017-05-17T01:19:23ZWhat is classified information, and who gets to decide?<figure><img src="https://images.theconversation.com/files/169630/original/file-20170516-24307-1wvu8cs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Classified documents.</span> <span class="attribution"><a class="source" href="http://download.shutterstock.com/gatekeeper/W3siZSI6MTQ5NTAwNTgzMiwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfMzc3MzgyMzI4IiwiayI6InBob3RvLzM3NzM4MjMyOC9odWdlLmpwZyIsIm0iOiIxIiwiZCI6InNodXR0ZXJzdG9jay1tZWRpYSJ9LCJtVlM5YUN2WjYvMkVZTkxvZjNISTg0L3VZYjAiXQ/shutterstock_377382328.jpg">www.shutterstock.com</a></span></figcaption></figure><p>Before coming to academia, I worked for many years as an analyst at both the State Department and the Department of Defense. </p>
<p>I held a top secret clearance, frequently worked with classified information and participated in classified meetings. Classified information is that which a government or agency deems sensitive enough to national security that access to it must be controlled and restricted. For example, I dealt with information related to weapons of mass destruction and their proliferation.</p>
<p>Handling written classified information is generally straightforward. Documents are marked indicating classification levels. It is sometimes more difficult to remember, however, whether specific things heard or learned about in meetings or oral briefings are classified. Government employees sometimes reveal classified details accidentally in casual conversations and media interviews. We may not hear about it because it’s not in the interviewee’s or employee’s interest to point it out after the fact, or he or she may not even realize it at the time. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=550&fit=crop&dpr=1 754w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=550&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/169626/original/file-20170516-11956-75vla1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=550&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">David Boren of Oklahoma, right, talks to reporters on Capitol Hill in 1991.</span>
<span class="attribution"><span class="source">AP Photo/John Duicka</span></span>
</figcaption>
</figure>
<p>In 1991, Sen. David Boren <a href="http://www.nytimes.com/1991/07/18/us/senator-s-slip-costs-cloak-and-dagger-agent-the-rest-of-his-cloak.html">accidentally revealed</a> the name of a clandestine CIA agent during a news conference. At the time, Boren was no less than chairman of the Senate Select Committee on Intelligence.</p>
<p>Not all revelations of classified details are earth-shattering, like nuclear launch codes. Many are are rather mundane. A former colleague of mine who was a retired CIA analyst used to tell his students he would never knowingly, but almost certainly would inadvertently, share a tidbit of classified information in the classroom. It is very difficult to remember many “smaller” details that are sensitive.</p>
<p>Dealing with large amounts of classified information over a career increases the possibility of accidentally sharing a small nugget. Sharing classified information knowingly, or revealing information one should know is sensitive, is a different matter. </p>
<p>Here’s how the system of classification works.</p>
<h2>Classification levels and content</h2>
<p>The U.S. government uses <a href="https://obamawhitehouse.archives.gov/the-press-office/2010/08/18/executive-order-13549-classified-national-security-information-programs-%22%22">three levels of classification</a> to designate how sensitive certain information is: confidential, secret and top secret.</p>
<p>The lowest level, confidential, designates information that if released could damage U.S. national security. The other designations refer to information the disclosure of which could cause “serious” (secret) or “exceptionally grave” (top secret) damage to national security. </p>
<p>At the top secret level, some information is “<a href="http://www.acqnotes.com/acqnote/careerfields/sensitive-compartmented-information">compartmented</a>.” That means only certain people who have a top secret security clearance may view it. Sometimes this information is given a “code word” so that only those cleared for that particular code word can access the information. This is often used for the most highly sensitive information.</p>
<p>There are several other designators that also indicate restricted access. For example, only those holding a secret or top secret clearance, and the critical nuclear weapon design information designation, are allowed to access information related to many aspects of the operation and design of nuclear weapons.</p>
<p>It is common for written documents to contain information that is classified at different levels, including unclassified information. Individual paragraphs are marked to indicate the level of classification. For example, a document’s title might be preceded with the marker (U) indicating the title and existence of the document is unclassified. </p>
<p>Within a document, paragraphs might carry the markers “S” for secret, “C” for confidential or “TS” for top secret. The highest classification of any portion of the document determines its overall classification. This approach allows for the easy identification and removal of classified portions of a document so that less sensitive sections can be shared in unclassified settings. </p>
<h2>Not quite confidential</h2>
<p>Below the confidential level, there are varying terms for information that is not classified but still sensitive.</p>
<p>Government agencies use different terms for this category of information. The State Department uses the phrase “sensitive but unclassified,” while the Department of Defense and the Department of Homeland Security use “for official use only.” These markers are often seen in the headers and footers of documents just like classified designations.</p>
<h2>Who decides?</h2>
<p><a href="https://www.gpo.gov/fdsys/pkg/FR-2010-01-05/pdf/E9-31418.pdf">Executive Order 13256</a> spells out who specifically may classify information.</p>
<p>Authority to take certain pieces of information, say the existence of a weapons program, and classify it top secret is given only to specific individuals. They include the president and vice president, agency heads and those specifically designated by authorities outlined in the executive order.</p>
<p>Procedures for declassification of materials are complicated. They are delineated in <a href="https://www.archives.gov/federal-register/codification/executive-order/12356.html#part3">Executive Order 12356</a>. However, the president has ultimate declassification authority and may declassify anything at any time.</p>
<p>Deciding what information is classified is subjective. Some things clearly need to be kept secret, like the identity of covert operatives or battle plans. Other issues are not as obvious. Should the mere fact that the secretary of state had a conversation with a counterpart be classified? Different agencies disagree about issues like this all the time.</p>
<p>In practice, when people leave the government they often engage in media interviews, write books and have casual conversations. There are bound to be complications and revelations – accidental or otherwise.</p><img src="https://counter.theconversation.com/content/77832/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Fields receives funding from the Carnegie Corporation of New York and the MacArthur Foundation.</span></em></p>A professor who once held top secret clearance explains how levels of classification work and where handling sensitive information gets tricky.Jeffrey Fields, Associate Professor of the Practice of International Relations, USC Dornsife College of Letters, Arts and SciencesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/717622017-01-25T00:04:16Z2017-01-25T00:04:16ZHow to secure a smartphone for the tweeter-in-chief<p>As President Donald Trump takes office, he has also taken up a <a href="https://www.nytimes.com/2017/01/19/us/trump-cabinet-picks-inauguration.html?_r=0">new, digital symbol of the presidency</a>. Before, during and since the campaign, he <a href="http://www.theverge.com/2017/1/20/14334192/donald-trump-phone-android-security-president">used an Android smartphone</a> to <a href="https://apnews.com/dad094622e4749e6858ad52bd7938676">conduct his business and tweet prolifically</a>, directly reaching millions of followers. But when he was inaugurated, Trump <a href="https://www.engadget.com/2017/01/20/donald-trump-trades-in-his-android-for-a-secure-device/">surrendered that device</a> and accepted in its place a smartphone that has somehow been made more secure.</p>
<p>It is a key move for a man who might now be not only the 45th commander-in-chief but also America’s first president with such devotion to Twitter. Many private companies deal with issues like this, in which employees joining the ranks <a href="https://doi.org/10.1109/GCCE.2016.7800494">already have a mobile phone</a> they use for their personal life. Should that device be connected to company systems? Or should workers be issued a cumbersome second phone for work-only purposes? There are <a href="http://nccoe.nist.gov/projects/building_blocks/mobile_device_security">federal recommendations</a> about that, but few firms are handling data as sensitive as the president’s phone might be.</p>
<p>A presidential smartphone is probably the most attractive target imaginable for foreign governments’ hackers. Attacking the phone could provide access to the highest secrets of national security, and near-constant real-time information about exactly where the president is, raising the potential for physical threats. Securing a phone like that requires several layers of protection.</p>
<p>Exactly what has been done to protect the president’s phone <a href="http://www.recode.net/2017/1/19/14312586/national-security-donald-trump-cellphone">is intentionally left unclear to the public</a>. But as a scholar of mobile security, I know that beyond overall network security measures, there are several technological approaches to securing a smartphone for special use. The most secure, however, is also among the least practical and least likely: ensuring the phone cannot connect to the internet at all. So how might have government cybersecurity specialists locked down Trump’s new phone?</p>
<h2>Hiding key information</h2>
<p>One level of protection is what is called “<a href="http://dx.doi.org/10.1007/978-3-319-42641-9_3">security by obscurity</a>.” Many people presumably had Trump’s pre-presidential phone number. Now, relatively few people will have his new number. Similarly, his old phone’s internal device identifiers, such as its unique 15-digit <a href="http://www.gsma.com/managedservices/mobile-equipment-identity/about-imei/">International Mobile Equipment Identity</a> number, or IMEI, may not have been as carefully guarded as those for his new phone. Keeping that information secret means the first hurdle for potential attackers involves figuring out which phone to attack in the first place.</p>
<p>Another layer of security involves ensuring the device was made by a trusted manufacturer, using trusted components, reducing the risk that the hardware would have any vulnerabilities that an attacker could exploit. Similarly, anyone who worked with or handled the phone at any step would have to be prevented from tampering with it to introduce any weaknesses.</p>
<p>Adding even more security in the physical device itself would be a specialized computer chip to add significant encryption capability for data stored on the phone or transmitted to or from it. Called a “<a href="https://trustedcomputinggroup.org/tpm-main-specification/">Trusted Platform Module</a>,” this hardware element is <a href="https://fas.org/irp/doddir/dod/i8500_01.pdf">required by the Defense Department</a> in all new devices handling military information. In addition, it could be used to ensure that any <a href="http://www.jhuapl.edu/techdigest/TD/td3202/32_02-Osborn.pdf">attempts to tamper with the phone</a>, its settings or the operating system installed would be identified immediately.</p>
<h2>Custom configuration</h2>
<p>The phone also might be configured to connect only with certain predetermined phone and data networks that are regularly screened against intrusions. Limiting its contact with the internet would, of course, be key – though that would also significantly limit the phone’s usefulness to a president whose routine involves constant connection.</p>
<p>To handle that middle ground – finding a compromise between a full, unrestricted internet connection and a completely disconnected device – Trump’s phone likely has some degree of customization. This could include a custom operating system, such as the <a href="http://www.capfalcon.net/2012/02/05/going-mobile-the-dod-quest-for-secure-smartphones-tablets/">Android variants the Department of Defense has developed</a>. These would contain security features not typically found in commercial systems, such as special restrictions on logging in and unlocking the phone, as well as specialized encryption settings.</p>
<h2>A more limited app store</h2>
<p>The apps allowed on the president’s phone should be few and limited only to those verified in advance. There should be little, if any, ability to automatically download and install apps, which could carry with them security-breaching code. For similar reasons, automatic updates to apps or the operating system might be restricted.</p>
<p>What happens inside a phone’s processor and memory when it’s running an app is already fairly secure even on commercial smartphones. Parts of the memory storing data and other parts handling the software instructions for working with those data are typically separated and identified. For smartphones such as those used by the president, this memory tagging should be done in hardware. This can prevent a number of <a href="http://dx.doi.org/10.1007/978-3-319-45719-2_21">different types of attacks</a> that try to trick the device into <a href="https://doi.org/10.1109/ISDFS.2016.7473537">running software code</a> from areas of memory <a href="https://doi.org/10.1109/MEMCOD.2016.7797764">set aside to handle data</a>.</p>
<p>Also important is determining which data an app can use. Most operating systems allow users to make that decision. To improve security even more, the phone could be programmed with mandatory limits provided by, say, the secret service. To some degree, this <a href="https://selinuxproject.org/page/Main_Page">ability is present on many smartphones</a>, preventing users or attackers from corrupting key elements of the system. </p>
<p>But it could be stepped up – even enforcing that a <a href="http://dx.doi.org/10.1109/2.241422">particular file could be shared only with people or apps holding a certain level of security clearance</a>, and having the system prevent sharing it elsewhere. For example, even if the president inadvertently told the Twitter app (if it’s installed on his phone) to share a piece of classified information, the phone’s software could step in and prevent that from happening.</p>
<h2>Additional steps</h2>
<p>Separately <a href="http://search.proquest.com/openview/2d968ab9d9d37c9a14861e68356f5718/1?pq-origsite=gscholar&cbl=1976342">encrypting the memory spaces used by each app</a> can boost security further. That would ensure that even if a malicious app makes its way onto the phone, it cannot see what other apps are doing, nor read the data they are working with.</p>
<p>Academic researchers have developed other ways that could be incorporated into a more secure presidential smartphone. The concept of “<a href="https://doi.org/10.1109/GreenCom.2012.45">data tagging</a>” can ensure that data that have been accessed by a certain app are accessed only in restricted ways. For example, the phone could be instructed that information that has passed through the White House’s secure wireless networks should not be accessible to the Twitter app. </p>
<p>Additionally, <a href="https://doi.org/10.1109/SPW.2012.27">context-dependent settings</a> could monitor the phone’s location and take note of surrounding devices. Perhaps the phone’s microphone and camera could be shut off, and any active Twitter link disconnected, if the phone itself is in the Oval Office, and whenever the president is meeting with members of his national security team.</p>
<p>How exactly the president’s phone is protected is vitally important to our national security. Trump’s agreement to stop using his previous, commercial-grade phone in favor of a government-secured one is a good step toward keeping the president informed and engaged while he and the nation also stay safe.</p><img src="https://counter.theconversation.com/content/71762/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anupam Joshi receives funding from a variety of governmental (NSF, DoD, NIST etc.) as well as industrial (IBM, GE, Northrop Grumman etc.) to support his research and educational activities as a faculty member. </span></em></p>The best way to protect a presidential device is to keep it off the internet altogether. If that’s not going to happen, how else can such a sensitive gadget be kept safe?Anupam Joshi, Oros Family Professor and Chair, Department of Computer Science & Electrical Engineering, University of Maryland, Baltimore CountyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/679672016-11-01T02:49:40Z2016-11-01T02:49:40ZRestoring transparency and fairness to the FBI investigation of Clinton emails<p>The New York Times and other national media sources are reporting that late Sunday night, the <a href="http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html?_r=0">FBI obtained a search warrant</a> to examine email messages belonging to top Clinton aide Huma Abedin. The messages were stored on a laptop belonging to her estranged husband, Anthony Weiner. The laptop was seized by the agency in connection with an investigation into <a href="http://www.dailymail.co.uk/news/article-3790824/Anthony-Weiner-carried-months-long-online-sexual-relationship-troubled-15-year-old-girl-telling-hard-asking-dress-school-girl-outfits-pressing-engage-rape-fantasies.html">Weiner’s alleged sexting with a 15-year-old</a> North Carolina girl. </p>
<p>The emails are clearly Abedin’s property, even if they were backed up on her husband’s computer. (If they jointly owned the computer, her ownership would be even clearer.) Under the <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">federal rules of criminal procedure</a>, the owner of property seized under a search warrant must be given a copy of the warrant and an inventory of what was taken. Has she received a copy or an inventory? </p>
<p>According to a statement issued Oct. 31 by Abedin’s lawyer, “<a href="http://www.nytimes.com/2016/11/01/us/politics/hillary-clinton-huma-abedin-emails-fbi.html">the FBI has not contacted us</a>.” Though her lawyer said Abedin “<a href="http://www.nytimes.com/2016/11/01/us/politics/hillary-clinton-huma-abedin-emails-fbi.html">will continue to be, as she always has been, forthcoming and cooperative</a>,” <a href="http://www.politico.com/story/2016/10/huma-abedin-emails-clinton-weiner-comey-230512">she has been kept completely in the dark</a> over the past month while the FBI has been prowling around in Weiner’s laptop.</p>
<p>Giving Abedin the warrant puts her in the position to exercise important legal rights. If it contains provisions that go beyond the constitutional limits on search warrants, she could even challenge the government’s assertion that the warrant was legal at all. Upon receiving the warrant, Abedin could also choose to share it with the media and the general public. That would bring much-needed transparency to what has so far been a mysterious and troubling government operation brought precipitously to public attention less than two weeks before Election Day.</p>
<h2>Following one case to another</h2>
<p>In a <a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">letter sent to Congress Oct. 28</a>, FBI Director James Comey said the FBI “has learned” of the existence of emails “that may be pertinent” to the closed investigation of Clinton’s use of a personal email server during her tenure as secretary of state. He also said that although “the FBI cannot yet assess whether or not this material may be significant,” he had directed investigators “to review these emails to determine whether they contain classified information.”</p>
<p>The FBI seized the computer on which those emails exist in early October under a search warrant seeking evidence of <a href="http://www.nytimes.com/2016/10/29/us/politics/fbi-hillary-clinton-email.html">Weiner’s “sexting” with a minor</a> and reportedly also <a href="http://www.wsj.com/articles/laptop-may-include-thousands-of-emails-linked-to-hillary-clintons-private-server-1477854957">for child pornography</a>. It has been reported that the FBI <a href="http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html?_r=0">downloaded summary information, also called “metadata,” for the entire contents of the laptop</a>. That revealed the presence of Abedin’s emails. </p>
<p>At that point, agents <a href="http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html?_r=0">delved deeper into the laptop</a>. They sought to determine the dates of the emails and the identities of the people who sent and received them. They were hoping to identify emails that passed through the private email server used by Clinton while she was secretary of state.</p>
<h2>Search warrants need specifics</h2>
<p>The Fourth Amendment to the Constitution states that no search warrant can be issued unless it “<a href="https://www.law.cornell.edu/constitution/fourth_amendment">particularly describes the place to be searched and the things to be seized</a>.” In a 1976 case, the <a href="https://supreme.justia.com/cases/federal/us/427/463/case.html">Supreme Court explained</a> that the provision prohibits “general, exploratory rummaging in a person’s belongings and prevents the seizure of one thing under a warrant describing another.”</p>
<p>In addition, federal rules of criminal procedure require officers or agents executing search warrants to “<a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">give a copy of the warrant</a> and a receipt for the property taken to the person from whom … the property was taken.” Abedin must get not only the warrant but also an inventory of the emails in question.</p>
<p>Once Abedin receives the warrant, she has several legal options to protect her rights. She could:</p>
<ol>
<li>Challenge its legality, asking for the government to show in open court that it had probable cause, sworn under oath, that any of these emails could be evidence of a federal crime. This is particularly relevant because back in July Comey had announced <a href="http://www.nytimes.com/2016/07/06/us/politics/hillary-clinton-fbi-email-comey.html">there was no evidence</a> that Clinton’s use of the private email server was a crime. So why would the mere fact that Abedin had sent or received email linked to that server be probable cause to believe those emails were <a href="http://www.politico.com/story/2016/10/huma-abedin-emails-clinton-weiner-comey-230512">evidence of a crime</a>?</li>
<li>Challenge its scope, arguing the warrant isn’t properly limited to specifically described emails. As documented in <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">my article published last week</a> by the <a href="http://www.yalelawjournal.org/">Yale Law Journal</a>, the FBI has a troubling history of abusing search warrant provisions to search <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">vast troves of email messages</a>. So it’s possible – even likely – that the FBI’s warrant is too broad.</li>
<li>Challenge the method of execution, demanding the warrant specify legal protections so government investigators will only read the specific messages described in the warrant. Her privacy rights mean government investigators shouldn’t be able to read unrelated emails of hers that happen to be on the laptop.</li>
</ol>
<h2>Time for new guidelines for handling digital data</h2>
<p>The method by which the FBI located this information is <a href="https://theconversation.com/in-getting-new-clinton-emails-did-the-fbi-violate-the-constitution-67906">also questionable</a>. It is almost certain that the warrant authorizing the search of Weiner’s laptop for evidence in the alleged sexting crime did not authorize looking at any emails belonging to Abedin. </p>
<p>The FBI itself has admitted that agents didn’t know the messages were on Weiner’s computer <a href="http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html?_r=0">until they began searching it</a>. So it appears as if the FBI agents barged ahead, examining information about Abedin’s messages despite their constitutional obligations.</p>
<p>In 2010 <a href="https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2010/09/13/05-10067.pdf">five federal judges reviewed</a> egregious misconduct in a federal search of computer data, and recommended that when a search warrant authorizes downloading a large set of data, the <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">data should be placed under the control of a court-appointed third party</a>. <a href="https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2010/09/13/05-10067.pdf">The judges said</a>: “That third party should be prohibited from communicating any information learned during the search other than that covered by the warrant. Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation should be allowed to examine only the information covered by the terms of the warrant.”</p>
<p>It seems clear that such a procedure should have been used when the Weiner laptop was initially seized and should be used now in handling Abedin’s email.</p><img src="https://counter.theconversation.com/content/67967/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Huma Abedin’s emails belong to her; the search warrant should be served upon her. Once that happens, she can challenge the warrant’s legality.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/679062016-10-30T01:33:16Z2016-10-30T01:33:16ZIn getting ‘new’ Clinton emails, did the FBI violate the Constitution?<figure><img src="https://images.theconversation.com/files/143783/original/image-20161029-15810-zmqpmm.jpg?ixlib=rb-1.1.0&rect=56%2C140%2C2980%2C1135&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How is it holding up in this digital age?</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Constitution_of_the_United_States,_page_1.jpg">U.S. National Archives and Records Administration</a></span></figcaption></figure><p>FBI Director James Comey’s Oct. 28 <a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">bombshell letter to Congress</a> – which has the potential to <a href="http://www.nytimes.com/2016/10/30/us/politics/comey-clinton-email-justice.html">affect the presidential election</a> – may be based on illegally obtained emails. </p>
<p>In his letter, Comey says <a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">the FBI “has learned” of the existence of emails “that may be pertinent”</a> to the <a href="http://www.nytimes.com/2016/07/06/us/politics/hillary-clinton-fbi-email-comey.html">closed investigation</a> of Hillary Clinton’s use of a personal email server during her tenure as secretary of state. He writes that although “<a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">the FBI cannot yet assess whether or not this material may be significant</a>,” he has directed investigators “<a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">to review these emails to determine whether they contain classified information</a>.” As the nation’s <a href="https://www.justice.gov/ag/about-office">chief law enforcement officer</a>, Attorney General Loretta Lynch has the apolitical and urgent responsibility to determine whether these emails were obtained <a href="https://www.yahoo.com/news/comey-wrote-bombshell-letter-to-congress-before-fbi-had-reviewed-new-emails-220219586.html">in a manner consistent with the Constitution</a>.</p>
<p>We don’t know everything yet, but we know a fair amount already about these emails and how the FBI got them. Comey tells Congress that the FBI “learned” of the emails’ existence “<a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">in connection with an unrelated case</a>.” Multiple media sources are now reporting that they were <a href="http://www.nytimes.com/2016/10/29/us/politics/fbi-hillary-clinton-email.html">found during the FBI’s investigation of allegations</a> that former Congressman Anthony Weiner <a href="http://www.dailymail.co.uk/news/article-3790824/Anthony-Weiner-carried-months-long-online-sexual-relationship-troubled-15-year-old-girl-telling-hard-asking-dress-school-girl-outfits-pressing-engage-rape-fantasies.html">sent sexual text messages</a> to a 15-year-old girl in North Carolina. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=732&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=732&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=732&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=920&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=920&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=920&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Under FBI investigation: Anthony Weiner.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AAnthonyweiner.jpg">U.S. Congress</a></span>
</figcaption>
</figure>
<p>The FBI apparently seized a laptop from Weiner on which <a href="https://www.washingtonpost.com/politics/fbi-to-conduct-new-investigation-of-emails-from-clintons-private-server/2016/10/28/0b1e9468-9d31-11e6-9980-50913d68eacb_story.html">more than 1,000 emails belonging to his estranged wife, Huma Abedin</a>, had been backed up. Abedin, who is <a href="https://www.washingtonpost.com/politics/fbi-to-conduct-new-investigation-of-emails-from-clintons-private-server/2016/10/28/0b1e9468-9d31-11e6-9980-50913d68eacb_story.html">currently vice chairman of the Clinton presidential campaign</a>, had served as deputy chief of staff to Clinton when she was secretary of state.</p>
<p>If the laptop was “<a href="http://www.nytimes.com/2016/10/30/us/politics/comey-clinton-email-justice.html">seized</a>” by the FBI, it’s unlikely that either Weiner or Abedin voluntarily turned over the emails. That means the agency needed to get a search warrant, by swearing to a judge there was probable cause to believe that data on the laptop contained evidence of the suspected “sexting” crime. Under the Constitution, the warrant should have specified exactly the information to be seized and searched, and thereby limited the FBI from looking through the entire contents of the laptop.</p>
<p>As a constitutional scholar, I have studied the FBI’s troubling history of <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">deliberately abusing search warrant powers</a> to go on unconstitutional fishing expeditions through Americans’ email. It seems likely that happened again here.</p>
<h2>Was the search properly limited?</h2>
<p>The Fourth Amendment to the Constitution states that no search warrant can be issued unless it “<a href="https://www.law.cornell.edu/constitution/fourth_amendment">particularly describes the place to be searched and the things to be seized</a>.” Did the warrant for Weiner’s laptop “particularly describe” emails sent to or received by Abedin while working at the State Department as material that could be seized as evidence of the alleged sexting crime? That seems highly unlikely. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=774&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=774&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=774&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=973&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=973&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=973&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Not aware of her husband’s alleged sexting: Huma Abedin.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AHumaAbedin-October2010.jpg">U.S. Department of State</a></span>
</figcaption>
</figure>
<p>Indeed, why were federal agents looking at any emails belonging to the suspect’s estranged spouse? Surely the FBI didn’t think Abedin was involved in the alleged sexting crime.</p>
<p>The agents might make the implausible claim that they saw Abedin’s emails inadvertently when looking for evidence related to the sexting crime. But even then, the legal approach would have required seeking Abedin’s consent to review the emails. If she declined, the FBI could have sought a new search warrant for specific Abedin messages, swearing to a federal judge that there was probable cause those particular emails were evidence of a crime, presumably related to the State Department email investigation.</p>
<p>So far there are no reports that the FBI did either of these things. To the contrary, Comey’s own letter says <a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">the FBI has no idea</a> if the emails are even “significant.” So how could the FBI get a search warrant to review them?</p>
<h2>A regular pattern of FBI abuse</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Dropping a bombshell: FBI Director James Comey.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AComey-FBI-Portrait.jpg">FBI</a></span>
</figcaption>
</figure>
<p>It may seem extreme to suspect that federal agents sworn to uphold the Constitution would deliberately violate it to go on an unauthorized fishing expedition through Weiner’s laptop. However, there is clear evidence that the FBI <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">regularly and deliberately oversteps constitutional boundaries</a> with regard to <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">Americans’ email messages</a>.</p>
<p>In one case now pending in New Jersey, the FBI went completely beyond the limits of a <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-SearchWarrant-24Dec2014.pdf">search warrant</a> to download <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-LtrFromFilterProsecutor-19Feb2016.pdf">the entire contents</a> of a lawyer’s cellphone. Incredibly, federal prosecutors in that case are telling a federal judge they can legally keep and use the downloaded data <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-MotionToSuppress-GovtSupplementalResponse-12July2016.pdf">even if the judge rules it was obtained in violation of the Constitution</a>.</p>
<p>In New York City, federal court records reveal the government obtained another search warrant that clearly violated the Fourth Amendment. That one ordered Microsoft to turn over the entire contents of a web-based email account and authorized “<a href="http://clarkcunningham.org/Apple/Cases/Microsoft/USvMicrosoft-2dCir-warrant.pdf">email by email review</a>.”</p>
<h2>It is time for Congress to act</h2>
<p>There have been some preliminary efforts to rein in the FBI. Last spring, a <a href="https://homeland.house.gov/press/mccaul-warner-lead-bipartisan-coalition-to-establish-national-commission-on-digital-security/">bipartisan bill was introduced in Congress</a> that would begin the process. It would create a National Commission on Security and Technology Challenges <a href="https://homeland.house.gov/mccaul-warner-commission-2/">including experts from many sectors</a> such as law enforcement, the technology industry, the intelligence community, and the privacy and civil liberties communities. The commission <a href="https://homeland.house.gov/wp-content/uploads/2016/03/2016.03.03_HR-4651-Commission.pdf">would review the laws about warrants for digital data and recommend changes</a> in how they should be used.</p>
<p>That effort followed the FBI’s <a href="http://www.nytimes.com/news-event/apple-fbi-case">ill-advised attempt to get a court order</a> forcing Apple to create and give to the government software eliminating the user privacy and <a href="https://theconversation.com/us/topics/apple-vs-fbi-25241">security features of the iPhone</a>.</p>
<p>In the wake of this week’s new evidence of further overstepping by the FBI, passing this bill should be one of the first tasks for Congress when it reconvenes after the election. Searches such as the likely illegal one conducted on Weiner’s laptop should be discovered, documented and prevented in the future.</p>
<h2>How to handle the emails now</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Time to act: Attorney General Loretta Lynch.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3ALoretta_Lynch%2C_official_portrait.jpg">U.S. Department of Justice</a></span>
</figcaption>
</figure>
<p>Attorney General Lynch should immediately press Comey for details about what steps he took to determine that these emails were obtained legally. Can the FBI show that a proper warrant authorized seizure of those particular emails? If the agency cannot do so, she should consider the <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">recommendations of several federal judges</a> for how to handle digital data. </p>
<p>Specifically, the messages should be immediately turned over to an independent court officer for any further review. Lynch could, for example, ask the chief judge of the federal district handling the Weiner investigation to appoint a <a href="https://www.law.cornell.edu/wex/special_master">court-supervised special master</a> to take charge of the emails. Using procedures fair to both law enforcement and the owner of the email, that person could determine if they reveal evidence of a crime. And Lynch should explain to the American people exactly what the FBI agents did legally, and admit if they acted outside the law.</p>
<h2>Stepping up to preserve Americans’ rights</h2>
<p>The Fourth Amendment was written in response to the abusive use of search warrants by the government of King George III. Specifically, Americans objected to searches of the homes of political dissidents, <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">which examined all a person’s private papers</a> in hopes of finding evidence to imprison him.</p>
<p>In <a href="http://clarkcunningham.org/Apple/History/Wilkes/EntickvCarrington95EngRep807-1765.pdf">one case successfully challenging this practice</a>, the lawyer for the victim of such a search spoke words that ring true today:</p>
<blockquote>
<p>“Ransacking a man’s secret drawers and boxes to come at evidence against him is like racking his body to come at his secret thoughts. Has [the government] a right to see all a man’s private letters of correspondence, family concerns, trade and business? This would be monstrous indeed; and if it were lawful, no man could endure to live in this country.”</p>
</blockquote><img src="https://counter.theconversation.com/content/67906/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The FBI has a history of abusing search warrants to illegally read Americans’ emails. Did the agency just do it again, in the highest of all high-profile situations?Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/669912016-10-13T07:45:38Z2016-10-13T07:45:38ZWhatsApp: a great idea for mates but a terrible one for ministers<figure><img src="https://images.theconversation.com/files/141571/original/image-20161013-16203-1hvyovi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It's all fun until someone gets hacked.</span> <span class="attribution"><span class="source">mirtmirt/Shutterstock.com</span></span></figcaption></figure><p>Cyber security experts have <a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-and-senior-cabinet-ministers-using-whatsapp-could-pose-security-risk-experts-20161012-gs0cuj.html">raised concerns</a> about Prime Minister Malcom Turnbull and senior government ministers sending private and confidential information via the messaging service <a href="https://theconversation.com/au/topics/whatsapp-8373">WhatsApp</a>. </p>
<p>WhatsApp and similar messaging apps are great for normal day-to-day communication between friends, but using it to discuss matters of national security is certainly a choice that will raise eyebrows. </p>
<p>As with any technology, particularly those that allow for speedy communication, the benefits have to be weighed carefully against the associated security risks.</p>
<h2>Not on the list</h2>
<p>One of the main points of criticism over the decision to use WhatsApp is that it doesn’t feature on the <a href="http://www.asd.gov.au/infosec/epl/index.php">Evaluated Products List</a> – the list of accepted tools for ministerial communications compiled by the <a href="http://www.asd.gov.au/">Australian Signals Directorate</a>.</p>
<p>This list features products that are tested and certified for specific purposes against <a href="https://www.commoncriteriaportal.org/">internationally recognised standards</a>. Vendors can apply for this certification for their products and once evaluated it can be used for the specific purpose. </p>
<p>Many different types of products are on this list, including biometrics, data protection, smart cards, mobile products, network devices, operating systems, and so on. Within the mobile products space, the list features Apple’s iOS and Blackberry’s operating system, both of which are platforms from which text messages can be sent – but messaging apps such as WhatsApp are not featured.</p>
<h2>What’s wrong with WhatsApp?</h2>
<p>Besides text-based messages, WhatsApp also allows files to be shared and transferred between users. This has implications for government, especially if used by ministers or staff with access to classified information. If such information were disseminated via WhatsApp, this would constitute a serious security breach. </p>
<p>Although WhatsApp now offers <a href="https://theconversation.com/worried-your-emails-might-be-spied-on-heres-what-you-can-do-66574">end-to-end encryption</a>, meaning in theory that no one can intercept the communication, the sharing of sensitive documents through this service would still be grounds for serious concern. What would happen in a situation in which a device was lost or stolen? Anyone with access to that device can access the shared files, including any media (images, documents, videos) shared via WhatsApp, which are automatically transferred to and stored in a WhatsApp folder on both devices. </p>
<p>Furthermore, it is possible to hack into the WhatsApp folder using tools that copy files from a mobile to a desktop computer, such as <a href="https://itunes.apple.com/au/app/air-transfer-easy-file-document/id521595136?mt=8">Air Transfer</a> (for iOS devices) and <a href="https://play.google.com/store/apps/details?id=com.smarterdroid.wififiletransfer&hl=en">WiFi File Transfer</a> (Android). Sharing web links via WhatsApp also potentially leaves users vulnerable to <a href="https://theconversation.com/au/topics/phishing-13263">phishing</a> or other attacks via malware or ransomware.</p>
<p>As WhatsApp now also works via the web, it is prone to all of the web’s security threats. </p>
<p>Besides malware posing as genuine WhatsApp links, it is also <a href="http://thehackernews.com/2014/12/crash-your-friends-whatsapp-remotely_1.html">reportedly</a> possible to crash the app by sending large (over 7 megabytes) messages, or messages containing special characters – a particular fear given that these messages can be typed and sent very quickly by someone who gains access to a device for a short period.</p>
<p>Privacy concerns are also raised by the existence of products such as <a href="https://whatspy.co/en/inicio">WhatSpy</a>, a web application that allows others to monitor a user’s status messages or even alter their security and privacy settings. Another app called <a href="https://www.mspy.com/">mSpy</a> monitors and reports on a mobile user’s activities, such as text messages, WhatsApp messages and phone calls. This app can be installed very quickly and once installed it can report to a designated number or email. </p>
<p>Perhaps worst of all is WhatsApp’s vulnerability to <a href="https://en.wikipedia.org/wiki/MAC_spoofing">MAC spoofing</a> attacks, which involve changing the <a href="https://en.wikipedia.org/wiki/MAC_address">media access control (MAC) address</a> that acts as a unique identifier for every phone. By changing it, the messages can be routed to an unauthorised device. </p>
<h2>Freedom vs responsibility</h2>
<p>The truth is that as soon as any sensitive information is placed on the WhatsApp network, it can potentially be shared or forwarded to anyone, meaning that both the sender and the receiver of the information is at greater security risk. </p>
<p>Once confidential information is out in the open network, it is effectively beyond the government’s control. </p>
<p>Another concern relates to Freedom of Information. As an encrypted third-party network, it is not clear whether it will be possible to retrieve this information if requested. Recently, US presidential candidate Hillary Clinton has faced severe criticism, media scrutiny and <a href="https://www.fbi.gov/news/pressrel/press-releases/fbi-releases-documents-in-hillary-clinton-e-mail-investigation">investigation by the FBI</a> for using private email services rather than official communication channels. </p>
<p>WhatsApp or Instant Messaging via mobile devices represents a new wave of communication adopted by the community at large. But the question of whether high-ranking members of the government should be using secured messaging apps is one that requires further investigation. </p>
<p>WhatsApp and other messaging services are promising, useful, and great fun. But they should not be used in a government setting without prior certification.</p>
<hr>
<p><em>This article was amended on October 14, 2016, to clarify the operating systems used by Air Transfer and WiFi File Transfer, and the functions performed by WhatSpy.</em></p><img src="https://counter.theconversation.com/content/66991/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vidyasagar Potdar does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Prime Minister Malcolm Turnbull and senior ministers have been criticised over their use of WhatsApp, which can leave users vulnerable if their phones are hacked, attacked by malware, or simply stolen.Vidyasagar Potdar, Senior Research Fellow, School of Information Systems, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/622712016-07-13T23:17:38Z2016-07-13T23:17:38ZHow did classified information get into those Hillary Clinton emails?<p>Last week FBI director James Comey publicly rebuked Hillary Clinton for mishandling classified information while she was secretary of state. This came at the conclusion of the FBI’s investigation of her use of a personal email server. He <a href="https://oversight.house.gov/hearing/oversight-state-department/">subsequently testified</a> on the matter before the House Oversight Committee. Comey reported that of more than 30,000 emails sent and received by Clinton, <a href="http://www.nytimes.com/2016/07/06/us/transcript-james-comey-hillary-clinton-emails.html?action=click&contentCollection=Politics&module=RelatedCoverage&region=Marginalia&pgtype=article">110 contained classified information</a> with eight email chains containing “information that was top secret at the time they were sent.” Comey concluded that Clinton and her aides were “were extremely careless in their handling of very sensitive, highly classified information.”</p>
<p>How could the secretary of state and her aides be so careless with classified information? </p>
<p>What information is classified in the first place and by whom?</p>
<p>How does that information get transmitted? </p>
<p>The answer to the first question partly lies in the way sensitive information is handled and classified at the State Department and other U.S. government agencies. </p>
<p>An important thing to understand is that the determination of what information is classified is subjective. This means reasonable people can disagree about the relative sensitivity of particular information. </p>
<p>Before coming to academia, I worked for many years as an analyst at both the State Department and the Department of Defense. I held a top secret clearance and worked on issues related to weapons of mass destruction and their proliferation. Debates and arguments about whether certain information should be classified were frequent. More often than not the debates centered on why something was classified in the first place. This is why determining whether Secretary Clinton was careless is not a cut and dried issue. </p>
<h2>Classification levels and what gets classified</h2>
<p>The U.S. government uses <a href="https://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information">three levels of classification</a> to designate how sensitive certain information is: confidential, secret and top secret. </p>
<p>The lowest level, confidential, designates information that if released could damage U.S. national security. The other designations refer to information the disclosure of which could cause “serious” (secret) or “exceptionally grave” (top secret) damage to national security. </p>
<p>At the top secret level, some information is “compartmented.” That means only certain people who have a top secret security clearance may view it. Sometimes this information is given a code word so that only those cleared for that particular code word can access the information. There are several other designators restricting access even to cleared personnel. For example, only those holding a secret or top secret clearance and the critical nuclear weapon design information designation are allowed to access information related to many aspects of the operation and design of nuclear weapons.</p>
<p>It is common for documents to contain information that is classified at different levels as well as unclassified information. Individual paragraphs are marked to indicate the level of classification. For example, a document’s title might be preceded with the marker (U) indicating the title and existence of the document is unclassified. </p>
<p>Within a document, paragraphs might carry the markers “S” for secret, “C” for confidential or “TS” for top secret. The highest classification of any portion of the document determines its overall classification. This approach allows for the easy identification and removal of classified portions of a document so that less sensitive sections can be shared in unclassified settings. </p>
<p>This is what Clinton was trying to do with the <a href="http://blogs.wsj.com/washwire/2016/01/10/hillary-clinton-says-nonpaper-email-a-nonissue/">“nonpaper”</a> that she <a href="http://thehill.com/blogs/blog-briefing-room/265367-clinton-defends-telling-aid-to-send-data-through-nonsecure-channel">instructed her aide</a> Jake Sullivan to fix so that it could be sent over a nonsecure fax machine. </p>
<h2>Not quite confidential</h2>
<p>Below the confidential level, there are varying terms for information that is not classified but still sensitive. </p>
<p>Government agencies use different terms for this category of information. The State Department uses the phrase “sensitive but unclassified,” while the Department of Defense and the Department of Homeland Security use “for official use only.” These markers are often seen in the headers and footers of documents just like classified designations.</p>
<h2>Who decides what is classified?</h2>
<p><a href="https://www.gpo.gov/fdsys/pkg/FR-2010-01-05/pdf/E9-31418.pdf">Executive Order 13256</a> spells out who specifically may classify information.</p>
<p>Authority to take certain pieces of information, say the existence of a weapons program, and classify it top secret is given only to specific individuals including the president and vice president, agency heads and those specifically designated by authorities outlined in the executive order. Information that is being retransmitted or integrated into other documents retains its original classification level. Inserting one sentence that is classified secret into an otherwise unclassified document makes the entire document secret. </p>
<p>Some things clearly need to be kept secret, like the identity of covert operatives or battle plans. Other issues are not as obvious. Should the mere fact that the secretary of state had a conversation with a counterpart be classified? In fact, different agencies disagree about issues like this all the time. In the Clinton case, the State Department disagreed with the intelligence community about whether certain emails contained information that should be classified.</p>
<p>When Secretary Clinton began turning over emails as part of an investigation into the Benghazi, Libya attacks, the inspector general (IG) for the intelligence community assessed that information in several of them was classified and should not have been transmitted over an open email system. </p>
<p>But the State Department disagreed with the IG’s assessment.</p>
<h2>Handling classified information</h2>
<p>Media sometimes erroneously refer to Clinton as having shared classified documents. This is not something she is accused of. It is extremely difficult to share a classified document electronically over email. Most government agencies, including the State Department, maintain separate systems precisely to make it all but impossible to electronically pass information between classified and unclassified systems. </p>
<p>One cannot simply view a document on a classified network and email it to someone on an unclassified system even within the same agency. This is partly why Clinton and her aides say so assuredly that they did not knowingly email classified materials. </p>
<p>The issue is whether she and her aides should have known that matters discussed in emails were classified or sensitive. In fact, in several of the released emails she and aides take pains to avoid discussing classified matters.</p>
<p>In discussing normal business, it may not be evident that certain specific topics are classified. Is the entire conversation the secretary has with a foreign leader classified? Are parts of it? Is the fact that the conversation took place classified? It depends on subject matter and context, and the assessment is subjective. In the normal course of business, however, a government employee may decide that the subject matter is not sensitive and discuss the conversation over an unclassified system.</p>
<p>But other more complicated issues arise. For example, the U.S. government cannot acknowledge drone strikes carried out by the CIA. That information remains classified even if revealed in the media. Thus, discussing them over an unclassified system would not be allowed. However, drone strikes carried out by the Department of Defense are not subject to such restrictions. This distinction <a href="http://www.slate.com/articles/news_and_politics/war_stories/2016/07/hillary_s_email_scandal_was_overhyped.html">may be one</a> of the key contentions the intelligence community has with some information in the Clinton emails.</p>
<p>The fact is government officials inadvertently send classified details over unclassified email systems all the time. Considering the amount of information dealt with on a daily basis, it is inevitable. Classified details are accidentally revealed in casual conversations and media interviews. We may not hear about it because it’s not in the interviewee’s interest to point that out after the fact. </p>
<p>A colleague and former CIA analyst tells his students he would never knowingly but almost certainly will inadvertently relate in the classroom a tidbit that is classified. The classic example is when Senator David Boren accidentally revealed the name of a clandestine CIA agent. Boren at the time was no less than chairman of the Senate Select Committee on Intelligence. </p>
<p>In that light, Clinton may have been careless, but she’s certainly not alone.</p><img src="https://counter.theconversation.com/content/62271/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Fields receives funding from the Carnegie Corporation of New York and the MacArthur Foundation. </span></em></p>An academic who used to hold top secret security clearance explains how things get classified and why the Clinton email scandal is hard to nail down.Jeffrey Fields, Assistant Professor of the Practice of International Relations, USC Dornsife College of Letters, Arts and SciencesLicensed as Creative Commons – attribution, no derivatives.