Mishandling classified national security information is a serious crime, and the somewhat belated joint investigation by the State Department, the intelligence community and the FBI into former Secretary of State Hillary Clinton's private e-mails and server proves that. Several news outlets have reported from various sources that highly classified e-mails have been identified during that investigation, with the count of classified e-mails now rising above 150.
The content of at least some of the reviewed e-mails is reported to be classified at the Top Secret Sensitive Compartmented Intelligence, or SCI, level, a classification usually reserved for information derived from communications intelligence (that is, intelligence from intercepted communications). The prohibition against disclosing communications intelligence information, and the removal by someone of defense information (e.g. imagery, etc.), from its "proper place of custody," or having knowledge of such removal and failing to report it, is outlined in Title 18, Part 1, Chapter 37, sections 798 and 793 respectively — crimes that can result in heavy fines or 10 years of imprisonment per count.
As the investigation and review continues, we must remember that a person is presumed innocent and should be given equal treatment under the law. It is also appropriate to remember that professional cabinet level officers and the president hold positions of special public trust and should be held to a very high standard of conduct — certainly not one where personal convenience trumps national security in a world rife with cyber threats from nation-state intelligence organs or cyber criminals.
The central question for many Americans interested in the 2016 presidential campaign continues to be how the classified material ended up traversing Ms. Clinton's private e-mail server. While the on-going classification review of the e-mails will help determine the extent of the exposure of our national security secrets, the FBI's investigation and forensic examination of the Clinton e-mail server will attempt not only to answer if damage was done and how much but also to identify the responsible parties.
In the interim, many of Ms. Clinton's political opponents and detractors would like to draw the immediate conclusion that it is entirely her responsibility, but there are, based on what we know now, three potential scenarios.
Scenario 1: Ms. Clinton sent or received e-mails using her private server that should have been classified based on her own authority as the Secretary of State to safeguard foreign policy deliberations or activities. For the moment, the joint review team's findings would seem to indicate that classified intelligence, not foreign policy information, was present in the e-mails — messages which her campaign has stated contained no "marked"classified information. While the Secretary of State has an affirmative duty to protect intelligence information as a member of the president's national security team, it is possible that Ms. Clinton may not actually know what classified intelligence looks like when taken out of a properly formatted and marked report.
Scenario 2: Someone in the State Department or on Ms. Clinton's staff sent e-mails through the "Clinton server" containing unmarked or marked classified material from the intelligence community that she recognized as such, and potentially forwarded or replied to, while failing to report the obvious breach of security to the State Department's special security officer — an action that should result in criminal charges under Title 18.
Scenario 3: Someone in the State Department or on Ms. Clinton's staff sent unmarked yet classified narrative extracts from intelligence reports, which Ms. Clinton may have legitimately believed were unclassified given that, in spite of her service in public office, she is not an intelligence professional capable of easily identifying such extracted or paraphrased information.
In the last two scenarios, the identity of the state department employee or Clinton staffer who moved, copied or transcribed the classified information from the internal, electronically separate, secure computer network at the State Department to the Internet and sent it to Ms. Clinton's private server remains a mystery. He or she would be a person of interest to the FBI and could well be indicted for violating Title 18, as should Mss. Clinton if it can be proven that she knowingly forwarded material that was obviously classified (e.g. not extracts but actual marked reports).
Of course, all the speculation, review and investigation — and the potential damage to her presidential aspirations — could have been avoided if Ms. Clinton had chosen the path of service before personal convenience and utilized the approved, government provided secure communications system she had access to as Secretary of State, instead of a personally owned server.
Tom Wither is an intelligence professional with more than 25 years of experience, and the author of two military/intelligence thrillers: "The Inheritor" (Turner Publishing, June 2014) and "Autumn Fire" (Turner Publishing, September 2014). The views and opinions expressed are his own and are not those of any organization or element of the intelligence community or Department of Defense. His email is firstname.lastname@example.org.