- - Thursday, August 20, 2015

ANALYSIS/OPINION:

When President Obama signed the Obamacare bill into law, Vice President Joe Biden said, sotto voce, “this is a big (expletive deleted) deal.” So it was. Hillary Clinton’s private email system, on which she trafficked in many of the nation’s most closely guarded secrets, is just as big.

Start with the purpose for which Mrs. Clinton established the system. It was to prevent the government — and any historians, journalists and the public — from knowing of and archiving her emails in order for her to evade accountability. The emails to hdr22@clintonmail.com would only be revealed if she agreed, and whatever corruption — remember the Clinton “pay-to-play” Foundation — would never be revealed.

Mrs. Clinton still says she never sent or received classified information on her private nongovernment email system. That more than 300 emails with highly classified information are now identified bothers her not at all.

But many more questions arise than we have answers to, or are ever likely to get. First, consider how the email system had to have worked.

It would have been a trivial task for some computer technician at the State Department to have all of Mrs. Clinton’s emails forwarded automatically to her private email system. These emails, including the products of at least five intelligence agencies, would have thus passed outside government control. This would apply to not just the emails themselves, but any attachments that would have been included, regardless of their level of classification.

Mrs. Clinton had to have replied to most or all of these emails. And here’s the rub: If she did, those responses couldn’t have been routed through the State Department or they — and the entire email strings — would have become the property of, and archived by, the State Department. That would have defeated her whole scheme.

In order to keep her private email system private, her responses — and any additional emails — would have necessarily passed through her private email system. When they did, the CIA and all the other intelligence agencies would have to have seen her email address on “clintonmail.com.” If they had been doing their jobs, each of those agencies would immediately have complained to the State Department and cut off her private system. They could not have agreed to tolerate its use.

We need to know who within the intelligence community agreed to tolerate her use of a private email system for communication of highly classified information. Did the president himself approve it? The CIA director? Who?

Top-secret information is parsed into several categories. We know that some of the emails sent and received by Mrs. Clinton contained information classified at the “SI/TK” level, which is as high as classification levels go. According to one expert with whom I consulted, in normal practice, “Special Intelligence/Talent Keyhole” intelligence is compartmented. That means that people — even those who hold top-secret clearances — are only permitted to know a small chunk of the information. It’s compartmented to prevent all but a few to know the whole of the secret being protected. The secretary of state would be one of them.

If Hillary Clinton set up and used the system, as she did, she was violating the law. Her defense that the emails weren’t marked “classified” is comprehensively irrelevant. Title 18 U.S. Code Section 793, for example, makes it a federal crime for anyone in lawful possession of classified information to willfully communicate, deliver or transmit that information to anyone not entitled to receive it. By using her private email system, Mrs. Clinton would have violated that law, among others.

Criminal law punishes intentional actions. And — here’s the crux of the matter — intent can be inferred from a person’s actions. Thus, by using her private email system to traffic in our most valuable secrets, Mrs. Clinton intentionally enabled anyone capable of a cyberattack on her private emails — the Chinese, Russians, WikiLeaks or any other group capable of invading the system and reading those emails — to gain access to top-secret information. She can and should be held criminally liable for divulging the secrets she was entrusted to protect.

The FBI is investigating Mrs. Clinton’s email system. It has seized what is believed to be the computer server from a company — Platte River Networks — which did not have the security clearances or the secured facility necessary to legally handle the information that was clearly on it. Whether Platte River Networks may have professionally “wiped” the server clean of all classified information is also unknown.

Hillary Clinton may escape prosecution for her acts because the FBI is only a part of the Justice Department. Whatever its investigation reveals may be tucked away in a corner and American voters would never know.

Republican presidential candidate and former Virginia Gov. Jim Gilmore has called for a special prosecutor to be appointed to investigate Mrs. Clinton’s apparently illegal conduct. A poll taken by Investor’s Business Daily says that 69 percent of Americans agree. My friend Andy McCarthy at National Review disagrees, arguing that political responsibility is more important.

Mr. McCarthy has a point, but not a good one. Our laws must be enforced. No person can be allowed to escape criminal liability for trafficking in our nation’s most valuable and closely guarded secrets.

We need to know what damage to our national security may have been caused by Mrs. Clinton’s intentional actions. We cannot trust the Obama Justice Department to do this.

The only way we will ever know, the only way justice can be served, is for a special prosecutor to be appointed forthwith to direct the FBI’s investigation and prosecute the crimes that have evidently been committed.

Jed Babbin served as a deputy undersecretary of defense in the George H.W. Bush administration. He is a senior fellow of the London Center for Policy Research and the author of five books, including “In the Words of Our Enemies.”

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