Sub sailor's photo case draws comparisons to Clinton emails
By JOSH GERSTEIN 05/27/16 08:07 AM EDT Updated 05/27/16 09:20 AM EDT
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A Navy sailor is set to plead guilty Friday in a classified information mishandling case that critics charge illustrates a double standard between the treatment of low-ranking government employees and top officials like former Secretary of State Hillary Clinton and ex-CIA Director David Petraeus, a source close to the case said.
Prosecutors allege that Petty Officer First Class Kristian Saucier used a cellphone camera to take photos in the classified engine room of the nuclear submarine where he worked as a mechanic, the USS Alexandria, then destroyed a laptop, camera and memory card after learning he was under investigation.
No advance notice was given on the court’s docket, but a clerk’s office employee confirmed just after 9 a.m. Friday morning that a change of plea hearing was underway in the case.
Last July, Saucier was indicted on one felony count of unlawful retention of national defense information and another felony count of obstruction of justice. The classified information charge is part of the Espionage Act, but no charge of espionage was filed and no public suggestion of espionage has been made.
The charges carry a maximum possible sentence of up to 30 years in prison, although the sailor’s sentence will likely be significantly less than that.
Saucier’s friends, conservative commentators and others say the stiff charges against Saucier are out of whack with more lenient treatment given to senior officials who face allegations of mishandling classified information, like Clinton.
“I just don’t think it’s fair,” said Gene Pitcher, a retired Navy sailor who served with Saucier aboard the Alexandria. “In reality, what she did is so much worse than what Kris did. ... I think it’s just a blatant double standard.”
Clinton has not been charged with any crime, but the FBI has been investigating how information that intelligence agencies consider classified wound up on the private server that hosted her only email account during the four years she served as secretary of state. Some news reports have said charges are unlikely.
“Felony charges appear to be reserved for people of the lowest ranks. Everyone else who does it either doesn’t get charged or gets charged with a misdemeanor,” said Edward MacMahon, a Virginia defense attorney not involved in the Saucier case.
To some, the comparison to Clinton’s case may appear strained. Clinton has said none of the information on her server was marked classified at the time. In many cases, it was marked as unclassified when sent to her by people in the State Department more familiar with the issues involved.
By contrast, sailors are trained early on that the engine compartment of a nuclear sub is a restricted area and that much information relating to the sub’s nuclear reactors is classified.
Still, it’s far from obvious that the information Saucier took photos of is more sensitive than information found in Clinton’s account. Court filings say the photos were clear enough that they reveal classified details about the submarine that could be of use to foreign governments, such as the vessel’s maximum speed.
However, the Navy says the photos are classified “confidential,” which is the lowest tier of protection for classified information and is designated for information that could cause some damage to national security but not “serious” or “exceptionally grave” damage.
Intelligence agencies claim that Clinton’s account contained 65 messages with information considered “Secret” and 22 classified at the “Top Secret” level. Some messages contained data under an even more restrictive “special access program” designation.
Clinton and her campaign have disputed those findings, calling them a result of “overclassification” and urging that the messages be released in full.
However, Clinton’s critics and some former intelligence officials said she should have recognized the sensitivity of the information. They’ve also noted that about 32,000 messages on Clinton’s server were erased after her lawyers deemed them personal.
“The DOJ is willing to prosecute a former sailor to the full extent of the law for violating the law on classified material, in a situation where there was no purposeful unsecured transmission of classified material,” conservative blogger Ed Morrissey wrote last year. “Will they pursue Hillary Clinton and her team, at the other end of the power spectrum from the rank-and-file, for deliberate unsecured transmission of improperly marked classified nat-sec intelligence? Will they pursue the same kind of obstruction of justice charges for Hillary’s wiping of her server as they are for Saucier’s destruction of his laptop?”
Jury selection in Saucier’s case took place earlier this month in U.S. District Court in Bridgeport, Connecticut, and opening arguments were scheduled to take place Tuesday, just after the Memorial Day holiday. Instead, a change-of-plea hearing is expected Friday. It was not immediately clear to what charge Saucier plans to plead guilty or what plea deal has been struck.
A defense attorney for Saucier and a spokesman for the prosecution did not respond to messages Thursday evening seeking comment for this story.
The investigation into Saucier kicked off in a rather unusual way in 2012 when a supervisor at a dump in Hampton, Connecticut, found a cellphone “on top of a pile of trash approximately three to four feet into the middle of a dumpster at the transfer station,” a court filing read. The supervisor showed the images to a retired Navy friend who turned over the device to the Naval Criminal Investigative Service.
Pitcher acknowledges that his friend violated Navy rules if he took the photos as prosecutors allege, but he says such infractions by submariners were not uncommon and were almost always dealt with through what the military calls “nonjudicial punishment” or Captain’s Mast. Those involved were demoted and docked some pay, but didn’t face a felony record or the prospect of years behind bars, the retired sailor said.
“Two guys in our boat were caught taking photos in the engine room on the nuclear side of things. Basically, all that happened to them was they … lost a rank,” Pitcher said. “I’ve seen quite a few cases like this and never seen any handled like Kris’.”
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Redacted and declassified cell-phone photos of nuclear sub’s engine room/Justice Department Court Filing
One factor that may have led investigators and prosecutors to handle Saucier’s case more aggressively is the way he responded when confronted about the photos. Court filings say he initially denied he took the pictures. Prosecutors say he later smashed his laptop, camera and memory card and threw them in the woods.
On top of that, Saucier had a handgun not registered to him in his home, prosecutors allege. After the FBI and NCIS showed up to question him, he allegedly cleaned it with bleach and stashed it under the dishwasher.
“They love the obstruction charges,” MacMahon said. “What they look for is something that’s aggravating.”
The defense attorney noted that CIA Director David Petraeus was accused of lying to the FBI when first confronted about keeping top secret notebooks at home and sharing them with his lover. Many lawyers believe that fact may have tipped the case against Petraeus from something that might have cost him his job to one that resulted in criminal prosecution.
Still, Petraeus was never charged with obstruction of justice. Before any charges were filed, his attorney reached a deal with prosecutors in which the retired general pleaded guilty to a single misdemeanor charge of mishandling classified information.
A former military investigator who handled classified information cases said the military tends to treat such violations more seriously than civilian government agencies do and there are some valid reasons for that.
“It is exceedingly common for people in the military to be held accountable for classified information violations, much more so than in the civilian government or contractor world,” said Bill Leonard, former director of the government’s Information Security Oversight Office. “My sense is that’s just a reflection of the military’s emphasis on good order and discipline. ... It really does make a difference to the guy or gal next to you if [sensitive] information is compromised. That’s a very real consequence.”
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Redacted and declassified cell-phone photos of nuclear sub’s engine room/Justice Department Court Filing
Since Saucier is still in the Navy, it’s unclear why he was charged in federal civilian court rather than sent to a court-martial. One possibility is that investigators may have considered charging others in civilian life with conspiring with the Navy sailor, but that has not happened.
Former Navy sailors said Saucier’s case also overlaps with a period during which the Navy was trying to strike a balance involving the boredom of submarine life during deployments as long as six months and the increasing popularity of smartphones, video-game players and similar devices.
While photography was always banned in engine rooms and taking a camera there would have been highly suspicious, ubiquitous phones with cameras have added new complexity to the situation, the sailors said.
With his friend set to plead guilty, Pitcher said he’s still convinced that Saucier is being treated more harshly than others in government of low or high rank.
“A lot of people were doing what Kris was doing,” Pitcher said. “Clearly, to an educated observer, this is not fair treatment in comparison to other highly visible cases.”
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