Compare and Contrast: Treatment of Thomas Drake & Hillary Clinton For Having Classified Info

by Mike Masnick
Techdirt
Mar. 29, 2016

The Washington Post has a big story delving deep into how the Hillary Clinton email scandal happened, noting that Clinton just didn't want to give up her BlackBerry, even as the NSA told her repeatedly that it wasn't secure and there were serious risks involved. What's amazing, from the story, is how much everyone was focused on the BlackBerry side of things, and sort of skipped over the fact that she was using a private email account with the server set up in her basement. The WaPo article notes that for the first few months in her job as Secretary of State, the email server didn't even have basic encryption tools enabled. All of that is a travesty, and you should read the whole article to understand the issue more, but I wanted to focus in on a related issue: the high court/low court treatment of Hillary Clinton as compared to others. In particular, the situation with Thomas Drake, the NSA whistleblower.

Almost five years ago, we wrote about the Thomas Drake case, highlighting some key passages in an astoundingly thorough New Yorker piece by Jane Mayer, which ripped the government's case to shreds. That long article is also worth reading, but for this story, the key points are that Drake was getting on some people's nerves by complaining about the decisions the NSA was making in the wake of 9/11 -- moving towards using an expensive computer system that would suck up everyone's data, while he and others had worked on a much more cost-efficient system that would get better results and had built-in protections for civil liberties. Drake blew the whistle and provided information to a Congressional oversight staffer.

When a big NY Times investigative piece came out later revealing the NSA's warrantless wiretapping program, and the NSA tried to figure out who had leaked, they raided Drake's home. He hadn't been the leaker, but after ruffling through basically everything, they found that Drake had kept a few marginal classified documents:

Then, in April, 2008, the F.B.I. told him that someone important wanted to meet with him, at a secure building in Calverton, Maryland. Drake agreed to the appointment. Soon after he showed up, he says, Steven Tyrrell, the prosecutor, walked in and told him, "You're screwed, Mr. Drake. We have enough evidence to put you away for most of the rest of your natural life."

Prosecutors informed Drake that they had found classified documents in the boxes in his basement--the indictment cites three--and discovered two more in his e-mail archive.

The "classified" information in question was totally meaningless. There was unclassified stuff he had kept because he had given it to the Inspector General as part of his whistleblowing and had been told to keep it. And there was a schedule of meetings that was marked unclassified, but which the government claimed should have been classified. And another document that was declassified soon after:

"They had made me into an enemy of the state just by saying I was," Drake says. The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General's Trailblazer investigation. The Inspector General's Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn't realize it. (The indictment emphasizes that he "willfully" retained documents.) The two documents that the government says it extracted from his e-mail archive were even less sensitive, Drake says. Both pertained to a successor to Trailblazer, code-named Turbulence. One document listed a schedule of meetings about Turbulence. It was marked "unclassified/for official use only" and posted on the N.S.A.'s internal Web site. The government has since argued that the schedule should have been classified, and that Drake should have known this. The other document, which touted the success of Turbulence, was officially declassified in July, 2010, three months after Drake was indicted. "After charging him with having this ostensibly serious classified document, the government waved a wand and decided it wasn't so classified after all," Radack says.

Because of those five documents, none of which ever should have been classified and one of which clearly was not... the Justice Department threatened Drake with thirty-five years in jail.

Drake was no longer charged with leaking classified documents, or with being part of a conspiracy. He is still charged with violating the Espionage Act, but now merely because of unauthorized "willful retention" of the five documents. Drake says that when he learned that, even with the reduced charges, he still faced up to thirty-five years in prison, he "was completely aghast."

Okay. Got that? Thirty-five years because he "retained" five documents the government claims were classified.

Now, back to Clinton:

State Department and Intelligence Community officials have determined that 2,093 email chains contained classified information. Most of the classified emails have been labeled as "confidential," the lowest level of classification. Clinton herself authored 104 emails that contained classified material, a Post analysis later found.

Before the server received a digital certificate marking the use of standard encryption, Clinton and her aides exchanged notes touching on North Korea, Mexico, Afghanistan, military advisers, CIA operations and a briefing for Obama.

Right. So Drake gets his home raided and faces 35 years for "retaining" 5 documents. And Clinton appeared to run classified documents through her unprotected home email server pretty much all the time. Now, it's likely that a lot of those 2093 emails involved "overclassification" situations that are all too common in government. And I'm certainly not making the argument that Clinton should necessarily face jail time (let alone 35 years or more) for the use of her own email server.

I'm just pointing out the seeming difference in treatment that someone like Drake gets, as a known "whistleblower" on government waste, as compared to Clinton, a front-runner for the Presidential nomination and a former First Lady, Senator and Secretary of State.

Others have certainly noticed this double standard as well. Last summer, the ACLU called out this seeming unequal treatment, as did the Daily Beat, which referred to it as a double standard. Meanwhile, Glenn Greenwald has -- quite reasonably -- gone even further, in pointing to Clinton's own comments on another situation involving classified emails: the case against Chelsea Manning. That involved the leaking of classified State Department cables while Clinton was Secretary of State. Clinton condemned Manning and insisted that the State Department had to be able to keep communications protected. And, yes, she said this at a time when her own emails were being run off a server in her home's basement.

Who knows what's going to happen with Clinton's email situation, but at the very least, the differential treatment she's received so far, compared to whistleblowers, should highlight just how ridiculous the treatment was for those whistleblowers. And it should reinforce the nature of the "high court/low court" distinction among the politically powerful. They get to avoid the kind of legal troubles the "little people" deal with.