President Barack Obama defended Democratic presidential candidate Hillary Clinton on "Fox News Sunday," when he was asked about whether Clinton had jeopardized "national secrets" by operating a private email server as secretary of state. Obama suggested some of the information may have been classified information, but that did not mean it was information unavailable in open source materials.
His remarks once again highlight the unequal enforcement of laws to "protect" national security against high-ranking government officials and lower-ranking personnel.
Obama also argued the Justice Department's decision on whether to prosecute or hold Clinton accountable will not be "political."
"There's classified, and then there's classified. There's stuff that is really top secret, top secret, and there's stuff that is being presented to the president or the secretary of state, that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open source." Obama told "Fox News Sunday" host Chris Wallace.
The president later stated, "I guarantee that there is no political influence in any investigation conducted by the Justice Department, or the FBI, not just in this case, but in any case." He insisted he does not talk to attorney generals or FBI directors about pending investigations. There is a "strict line" that has always been maintained, Obama added.
What Obama said about "political influence" is not true. The case of former CIA director and former Pentagon chief, David Petraeus, was marred by "political influence."
Petraeus improperly handled and disclosed classified information, including "Black Books" containing the identities of covert officers, war strategy, intelligence capabilities, and notes from his discussions with President Barack Obama. He provided his biographer, Paula Broadwell, access to these books. He violated the law, and he lied to FBI agents about it when he was interrogated.
"If you are powerful or politically connected, you have nothing to worry about. But if you're a low-level whistleblower whose made revelations that the government doesn't want people to know about torture, about secret surveillance, about drones, that makes you fair game for prosecution and prosecution for espionage." --Jesselyn Radack, ExposeFactsHowever, Petraeus' legal defense wielded his status as a powerful elite figure in order to strong-arm prosecutors into offering a plea deal. Petraeus recognized the Obama administration did not want a high-profile trial, and in the end, the Justice Department acquiesced to his demand to face minor charges so he could stay out of prison and keep his pension.
Not being charged with a felony also meant Petraeus could remain a part of the foreign policy establishment and advise the National Security Council on classified matters related to Iraq and the Islamic State. (Note: Petraeus, a proponent of counterinsurgency or COIN military doctrine, played a key role in Iraq's destruction, which helped give birth to the death cult known as the Islamic State and was by all accounts a massive failure.)
In contrast, the Obama administration has prosecuted more lower-level government officials for unauthorized disclosures of classified information than any president in the history of the United States. He has prosecuted seven government officials under the Espionage Act, which traditionally was used against spies and not leakers. Most of the cases involved individuals making disclosures to the press, which has created profound implications for the First Amendment.
Additionally, Obama's statement about the nature of the classified information essentially points to the problem of over-classification. However, this has not been a permissible defense for low-ranking individuals accused of leaks.
U.S. military whistleblower Chelsea Manning was blocked from a defense, which argued information she disclosed to WikiLeaks was over-classified.
As previously reported by the New York Times, emails at issue in the case of Clinton include information about CIA drone strikes in Pakistan. Such information is classified at the "highest levels," known as Top Secret/S.A.P. or special access programs. These are some of the government's "most closely guarded secrets."
Unnamed officials within the government have sought to spin the fact that such top secret information was found on Clinton's private email server. For example, NBC News was told these were relatively "innocuous" conversations by State Department officials about the CIA drone program.
On one level, this is ludicrous. The Justice Department, in service to the CIA, continues to fight the disclosure of records related to the drone program in court. The CIA will not acknowledge that it launches drone strikes, which kill alleged "militants." But this also lends credence to the idea that this is clearly a politicized case. Anyone else found with secrets related to the drone program, particularly if they had been a critic of the program, would be zealously prosecuted. Their career, and possibly their personal life, would be destroyed.
Jesselyn Radack, a whistleblower attorney and director of national security and human rights for the Whistleblower and Source Protection Program at Expose Facts, told Shadowproof, "It's a two-tiered system of justice for people who have allegedly mishandled classified information. If you are powerful or politically connected, you have nothing to worry about. But if you're a low-level whistleblower whose made revelations that the government doesn't want people to know about torture, about secret surveillance, about drones, that makes you fair game for prosecution and prosecution for espionage."
NSA whistleblower Thomas Drake was prosecuted for disclosing unclassified information on the "transom of the NSA intranet to some 10,000 people," according to Radack, who represented Drake. Obama is well aware of the political influence on the Justice Department, which led prosecutors to zealously pursue Drake until the case eventually collapsed. However, Radack said what happened to Drake did not phase him.
Obama acted as if he restrained himself from making inappropriate remarks, given the ongoing investigation, but his statements go to Clinton's character and undermine the need for a prosecution by the Justice Department:
I continue to believe that she has not jeopardized America's national security. Now what I've also said is that--and she has acknowledged--that there's a carelessness, in terms of managing emails, that she has owned, and she recognizes.
But I also think it is important to keep this in perspective. This is somebody who has served her country for four years as secretary of state, and did an outstanding job. And no one has suggested that in some ways, as a consequence of how she's handled emails, that that detracted from her excellent ability to carry out her duties.
In other words, Clinton may have done something wrong, however, no member of the political class or national security establishment doubts her character. There is no need to make an example out of her, as has happened in previous leak prosecutions, because there is no lesson to be learned here.
Clinton has argued there is no good reason for her to be prosecuted because former secretary of state Colin Powell and close aides to former secretary of state Condoleezza Rice used private email accounts, and they were not charged with crimes.
Of course, this creates a standard, where high-ranking officials point to legal precedents and escape accountability because they are not the first to engage in reckless or corrupt acts.
Like President Richard Nixon infamously declared, "If the president does it, that makes it legal." In this case, if Hillary Clinton did it but the establishment still has a use for her because she is running for president, then it is legal.