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Posts published in “Day: November 4, 2016”

Trump 4: Dangerous snap decisions

trump

In July, the Economist magazine opined about Donald Trump, running through many ways he already has or might damage America, but concluding with this:

"The most worrying aspect of a Trump presidency, though, is that a person with his poor self-control and flawed temperament would have to make snap decisions on national security—with the world’s most powerful army, navy and air force at his command and nuclear-launch codes at his disposal."

That was just the point First Lady Michelle Obama made days later, saying "Because when you have the nuclear codes at your fingertips and the military at your command, you can't make snap decisions. You can't have a thin skin or a tendency to lash out. You need to be steady and measured and well-informed."

Steady. Measured. Well-informed. Does that sound anything like Donald Trump?

That Trump has at the least a difficulty struggling with it is something he has admitted himself - not least this week at a rally in Pensacola, Florida. After a few minutes of talking, he lapsed into this:

“We’ve gotta be nice and cool,” Trump said at his last rally of the day. “Nice and cool. All right? Stay on point, Donald. Stay on point. No sidetracks, Donald.”

He closed his self-administered public pep talk by repeating the word, “Niceeee…” He hung on to it for emphasis.

That's the sound of a man desperately trying to keep from blowing up, from saying something insulting or idiotic or simply weird.

He has tremendous trouble keeping from doing that.

Watch him in his debates: For the first 20 minutes or so, he stays on message - whatever light prepping he has done is still in mind - and then he loses the plot, and wanders. He can be baited, easily; fooled, easily. And angered very, very easily.

This is a personality you want to put behind the most powerful military, most powerful governments, in the world? Who you would want two minutes away from launching nuclear missiles?

Seriously? - rs

No there there

mckee

Let’s dissect this business of Hillary Clinton’s emails and the FBI report one last time.

Yes, I know that everyone’s mind is already made up here. But it might serve some purpose to actually look at the law and see if there really is any way that she could be found guilty of anything. There are only three criminal statutes that have ever been mentioned in connection with the email allegations, and it won’t take us long to plow through the weeds and take a look. Let’s take them one at a time.

18 United States Code § 798

With the caption “Disclosure of Classified Information,” this statute is often cited as the probable criminal statute under which Secretary Clinton could be charged for mishandling the State Department emails. However, upon a simple reading, it becomes apparent that this statute is inapplicable to any of the emails discovered on the Secretary’s private server up to this time. There are three essential elements to the crime defined by his section, and Clinton’s circumstance lacks all three.

First, to constitute a crime under this section, the information that is communicated must be “classified” information. This is a word of art that is defined in the statutes. To be “classified” requires that each document be properly marked at the top and bottom of each page with a label stating the level of classification. In fact, none of the sensitive emails or their attachments were properly marked as required by law during the time the Secretary is charged with mishandling them. Proper marking is a requirement for prosecution; any subjective expectation that the information might be, or should be, or could be classified is immaterial.

Second, the subject information must actually be transmitted to an unauthorized party for a use which will jeopardize the interests of the United States. Here, all the emails with sensitive information were to or from persons within the State Department who all had appropriate clearance to send and receive classified material. There is no proof that any unauthorized person received any of these emails for an improper purpose.

Third, the Secretary must have had the specific intent to disclose the classified information to the unauthorized source for an improper purpose. This is an espionage statute, and it is a crime of specific intent. There is no evidence that the Secretary had any intent to transmit the emails to any unauthorized persons in order to jeopardize or harm the security of the country.

The base facts are not sufficient as a matter of law to fit the requirements of this statute.

18 United States Code § 793(f)

This statute provides that whoever through gross negligence causes or permits a classified item to be removed, lost or stolen, or delivered to someone not authorized to receive classified information, in violation of his trust, may be guilty of a felony. This is the only statute in the espionage area that provides that gross negligence will be sufficient for conviction, instead of requiring specific intent.

Without even considering the issue of negligence, the statute by its terms cannot be made to fit the circumstances here. It was enacted in World War I for tangible objects and documents, and has never been amended to fit electronic media. It has only been used six times, with the last being during World War II. To violate the statute requires that the classified data first be “removed” from the place where it is supposed to be located, then taken to a place where it is not supposed to be located, where it is then either “lost” or “stolen,” or then “delivered” on to an unauthorized user.

First, there is the same problem with this statute as with the general espionage statute in that none of the emails or attachments were properly marked as classified at the time they were handled by the Secretary. This means there was no “classified” information involved.

Next, none of the occurrences proclaimed in the statute fit an email. An email is not relocated by any of the email processes; it simply replicates itself onto the email server of all the addressees. Any documents involved, and the email itself, are not removed from the location where they originate and are supposed to be kept. Everything remains in its original location, where it is supposed to be. When replies or additional comments are created, nothing of the original material gets changed; the replies and additional comments are just added to the thread, and the whole stack replicates itself with everything recorded at all the locations of all the parties to whom the email is addressed. Under a plain reading of the main elements of this statute, if nothing of the items covered by the charging allegation are in any way “removed,” or “lost,” or “stolen,” or “destroyed,” no crime is committed.

The second element of this section is that the subject item, if not lost or stolen, must be delivered to someone not authorized, breaching the trust reposed in the sending individual. Even if read broadly, there is no proof or allegation in this case that any of the emails passing through Clinton’s servers were ever diverted to an unauthorized person who was not authorized to receive the data sent. Any of the emails containing sensitive information that were passed on went to addressees within the State Department who were authorized to receive classified information.

The two essential elements as contained in the statute either cannot be fit to the circumstances here, or do not apply. To make this statute fit the facts of this case would require massive reconstruction of terms by the court, which the courts are unlikely to do. In the instant case, the antiquated language just does not fit electronic mail. The base facts are not sufficient as a matter of law to fit the requirements of this statute.

On the issue of negligence, the State Department has a separate, secure email system for transmission of classified data. Classified data is not supposed to be transmitted in any fashion other than through the classified system. From a negligence standpoint, the Secretary had no reason to suspect that classified data was included in emails sent to her private email address, and therefore no reason to be aware of any duty imposed upon her with regard to that data. Clinton told the FBI she was not aware of any classified data on any of her emails, and Director Comey testified to Congress that other evidence gathered by the FBI corroborated the Secretary’s contention on this point. While negligence is a subjective finding, the lack of any evidence that Clinton was aware of any duty upon her could be deemed overwhelming.

18 United States Code § 1924

This statute makes it a felony for any agent or officer of the government who obtains classified information to knowingly remove the classified material to an unauthorized location with the intent of keeping it there. The statute runs into the same problems as the others if it is to be applied to the email of the Secretary.

First, the material on Clinton’s server was not properly marked and labeled – meaning nothing of the private emails could be considered “classified” information for purposes of prosecution under the federal law.

Second, emails are not moved from one location to another, and replicating the emails on her server did not accomplish any part of relocating or hiding or withholding or otherwise interfering with the originals of any of the data involved. The original data, in its original form, is still exactly where it started out to be. The only thing on Clinton’s private email servers are replicated copies.

Finally, the statute defines the crime to be one of specific intent. The individual must know of the classified information, and deliberately intend to secret it away into the unauthorized location, denying it to others entitled to access. All of the objective proof is otherwise here. Nothing was properly marked as classified; classified information is supposed to be contained in a completely separate email system, and there were no objective circumstances to put anyone on notice that classified information was contained in any of her private emails. The base facts are not sufficient as a matter of law to fit the requirements of this statute.

Conclusion

The timing was awful, the optics were wrong, and Hillary is terrible at explaining herself. The whole works has been handled with the delicacy of a meat ax. But when the smoke clears, the dust settles and everything is out on the table face up, the email escapade will eventually implode upon itself and disappear.

Trump 5: Torture

stapiluslogo1

Back on July 1, a website called the Daily Banter said this:

"If you wanted a single statement from Donald Trump that conclusively illustrates why he is completely unqualified to run for office, this would be it. Speaking with New Hampshire’s NH1, Trump said this about the United State's duty to commit war crimes:"

And what he said was:

"Well, it’s not the American way to have heads chopped off and have people drowning in steel cages. And so we can have our disagreements, but we’re going to have to get much tougher as a country. We’re going to have to be a lot sharper and we’re going to have to do things that are unthinkable almost."

"We're going to have to do things that are unthinkable"? "Almost?"

What's unthinkable for Trump is hard to imagine, since he's put on the table - approvingly - waterboarding and the assassination of family members of possible terrorists.

Onn February 17, Trump said "Torture works. OK, folks? You know, I have these guys—”Torture doesn’t work!”—believe me, it works. And waterboarding is your minor form. Some people say it’s not actually torture. Let’s assume it is. But they asked me the question: What do you think of waterboarding? Absolutely fine. But we should go much stronger than waterboarding."

There is the point the such efforts don't work. Factcheck.org, like many other researchers, point out that "scientists have shown that the stress and pain induced by techniques like waterboarding can impair memory, and, therefore, inhibit a person from recalling information."

But the matter of efficacy is the smaller issue.

The bigger issue is that torture is wrong. It is immoral. American leaders - with a partial hideous exception during the later Bush Administration - have long recognized this. No major candidate for the presidency ever has supported torture. The U.S. Constitution bans "cruel and unusual punishment," including among its few policy prescriptions a requirement that torture is not what we do.

Torture is what the bad guys do.

My country, the United States, has not always been perfect, but we have been able to count it among the good guys.

Donald Trump, by his explicit statements, would change that. The United States would no longer be a moral exemplar to the word if he is elected. The damage would be irreversible. - rs