Clearing a lowered bar in politics

It’s what you can get away with that matters now.

That was proven, yet again, by FBI Director James Comey’s long-awaited remarks Tuesday summing up the bureau’s investigation into and findings on former Secretary of State Hillary Clinton’s rogue email server operation.

Even the New York Times didn’t hold back.

Hillary Clinton may not be indicted on criminal charges over her handling of classified email, but the F.B.I. director, James B. Comey, all but indicted her judgment and competence on Tuesday – two vital pillars of her presidential candidacy – and in the kind of terms that would be politically devastating in a normal election year.

The silver lining for Mrs. Clinton is that this is not a normal election year.

This is really some piece.

Mrs. Clinton’s campaign is built on the premise that she has the national security experience and well-honed instincts to keep Americans safe in the age of terrorism, and that Donald J. Trump does not. Nearly every day, she seeks to present herself as a more thoughtful and responsible leader.

She has spent months describing Mr. Trump as “reckless,” “unprepared” and “temperamentally unfit” to be president, and she has presented her four years as secretary of state and eight in the senate as unparalleled preparation for becoming commander in chief.

Yet in just a few minutes of remarks, Mr. Comey called into question Mrs. Clinton’s claims of superiority more memorably, mightily and effectively than Mr. Trump has over the past year. And with potentially lasting consequences.

This was a major indictment, without being quite an indictment, in official terms.

This NRO piece explains, with great clarity, restraint and unusual charity for political discourse.

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services. Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.

Why? How did it come to this?

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant.

Read this whole piece carefully, it captures the essence of what went on here.

It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged. Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged. It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.

(Emphasis added.)

Yes, it’s as convoluted as it sounds. But read it for what it says, which is clear.

I have just returned from a two week family vacation in Europe, right smack at the time of the Brexit referendum and the start of the fallout from that. And also in the area when Austria and Italy have been going through political spasms along with more of the globe than one detects within the US borders.

But returning home just before Independence Day weekend, with celebrations of what freedom means and how hard fought it was won, promised to be fortifying. However, with back to back terrorist attacks happening abroad just after returning and the national search for a leader in the U.S. taking on increased gravity, only to have old school politicking carrying news cycles over the Fourth of July weekend involving the Clintons, the Justice Department and the FBI, followed by Comey’s backhanded exoneration of Mrs. Clinton, it was deflating.

Or, at least a reminder that the greatness, honor, leadership, strength and character we seek and need must come from us and not some candidate of a political party. It is a time of upheaval alright. Let’s focus on where our treasure really is – on our communities, our families, ourselves – to do what is right and good and true, and make a coalition to raise the bar on what is necessary for a just, virtuous and humane society.

And then hold politicians who seek higher office to rise to higher standards.

Secret surveillance expansion: How NSA powers grew

When the government increases its power at any time for any reason, beware of two things: it won’t give it up in the future no matter who comprises ‘the government,’ and it will be applied differently under a different administration. Thus begins the tale of how the National Security Agency got to the point of gathering data on millions of Americans.

A friend of mine and regular radio show guest, Elizabeth Scalia, opens her book Strange Gods right off the bat in the Introduction with a prophetic account, and she couldn’t have known how prophetic it was when the book was published earlier this year. It’s the true story of a “stalwart conservative” woman in early post 9/11 America who expressed her concerns in debates over the passage of the Patriot Act. “She feared putting too much power in the hands of government–even if it meant giving that power to a president she basically liked,” Scalia writes. “Her main concern was that she fully expected these expanded powers to eventually be abused.”

Now, here we are. The New York Times on Independence Day weekend 2013:

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

Precisely. And speaking of ‘the court issuing orders’, this was published by the Wall Street Journal Sunday night: “Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering”.

The National Security Agency’s ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: “relevant.”

This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

In interviews with The Wall Street Journal, current and former administration and congressional officials are shedding new light on the history of the NSA program and the secret legal theory underpinning it. The court’s interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.

“Relevant” has long been a broad standard, but the way the court is interpreting it, to mean, in effect, “everything,” is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department’s primary authority on federal criminal surveillance law.

“I think it’s a stretch” of previous federal legal interpretations, says Mr. Eckenwiler, who hasn’t seen the secret ruling. If a federal attorney “served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”

Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark Udall (D., Colo.), have argued repeatedly that there was a “secret interpretation” of the Patriot Act. The senators’ offices tell the Journal that this new interpretation of the word “relevant” is what they meant. An official at FISC, the secret court, declined to comment. The NSA referred questions to the Justice Department, saying this provision of the Patriot Act addressed FBI authorities. The Justice Department didn’t comment.

And here we are. Which is…who knows where? Besides, that is, the NSA.