Comment of the Day: “Prelude: Intent, Gross Negligence, And ‘Extremely Careless’”

eyes closed driving

Long-time commenter (and blogger) Glenn Logan has authored not one but three COTD-worthy posts of late. I have chosen his commentary on the gross negligence/extremely careless distinction for the honor, but any of them would have been worthy choices. You can find the others in the threads here and here.

Before I get to Glenn, I want to point out that a recent and ridiculous news story illustrated the difficulty of the gross negligence/extreme carelessness distinction perfectly:

A North Florida woman is saying her prayers after running her car into a home — after saying her prayers.

The 28-year-old woman was driving in the tiny town of Mary Esther, located west of Fort Walton Beach in the Florida Panhandle. Deputies from the Okaloosa County Sheriff’s Office say the driver told them she was praying and had her eyes closed before the incident took place.

According to NWFDailyNews.com, authorities say she ran a stop sign, going through an intersection and into the yard of a home. The driver tried to back out, but her car got stuck in sand and dirt around the home. No one was hurt inside the home and the driver was taken to a nearby hospital for evaluation. She was cited for reckless driving with property damage.

Gross negligence would be praying, driving, and closing her eyes knowing well that it endangered others, and doing it anyway. Extremely careless would be praying, driving, and closing her eyes assuming that no harm would come of it, perhaps because God would be driving the car. “Reckless,” however, may cover both.

Here is Glenn’s Comment of the Day on the post, “Prelude: Intent, Gross Negligence, And ‘Extremely Careless’”: Continue reading

Prelude: Intent, Gross Negligence, And “Extremely Careless”

falling bowling ball

By now I intended to have published a thorough essay deciding the question of whether conservatives, and their claims that James Comey was part of a Justice Department conspiracy to save Hillary from indictment, were more unethical that Clinton supporters in the news media and elsewhere pronouncing her “exonerated” because she’s not facing trial. Alas, pressing matters have intervened, but no matter: I will present it soon. Meanwhile, however, allow me to clean up a relevant controversy.

Much of the mockery of Comey’s explanation of the FBI’s recommendation, since accepted with a big “Whew!” by Loretta Lynch, arises from his assertion that while Hillary’s handling of classified information was “extremely careless,” it did not arise to the standard of “gross negligence” specified in the relevant statute. Too many pundits and commentators to mention have snorted at this, arguing that there is no practical difference. Comey did not help, when he was asked the question in his Congressional testimony, by explaining the difference as one of enforcement: in a century, he said, no conduct similar to Clinton’s has ever been found to meet the “gross negligent” standard sufficiently to warrant prosecution. Attorney General Lynch, when she was asked the same question by Rep. Jim Sensenbrenner (R-Wis), just repeated how she accepted the recommendations of Comey not to indict Clinton.

There is a difference, however. I don’t know why neither Comey nor Lynch could articulate it, but it exists, and I will now make it clear.

For this analogy I owe thanks to a D.C. lawyer, ethics expert and law professor friend of long-standing with whom I was recently discussing the Clinton matter. He has a gift for  analogies, and said this…

“Intent, is when you drop a bowling ball out of an office building window, aiming so that it will kill somebody by falling on the victim’s  head.”

“Gross negligence is when you toss a bowling ball out of an office building window without looking in order to get rid of it, knowing full well that it is mid-day and very likely to fall on someone’s head.”

“AH HA!” I interrupted. “Then ‘extreme  carelessness’ is when you toss the bowling ball out of an office building window without looking, in order to get rid of it, because it’s 3 AM and you mistakenly/ignorantly/ stupidly  assume nobody will be walking on the sidewalk at that time of night!”

“Exactly!” he said.

More to come…

Ethics Observations On FBI Director Comey’s Statement Regarding The Clinton Investigation

James Comey

The transcript of FBI Director James Comey’s full remarks on the Clinton e-mail probe follow. I will highlight important sections in bold, and in some cases, bold and red. My  observations will follow.

Good morning. I’m here to give you an update on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.

After a tremendous amount of work over the last year, the FBI is completing its investigation and referring the case to the Department of Justice for a prosecutive decision. What I would like to do today is tell you three things: what we did; what we found; and what we are recommending to the Department of Justice.

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

I want to start by thanking the FBI employees who did remarkable work in this case. Once you have a better sense of how much we have done, you will understand why I am so grateful and proud of their efforts.

So, first, what we have done:

The investigation began as a referral from the Intelligence Community Inspector General in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State. The referral focused on whether classified information was transmitted on that personal system.

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

Consistent with our counterintelligence responsibilities, we have also investigated to determine whether there is evidence of computer intrusion in connection with the personal e-mail server by any foreign power, or other hostile actors.

I have so far used the singular term, “e-mail server,” in describing the referral that began our investigation. It turns out to have been more complicated than that. Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways. Piecing all of that back together — to gain as full an understanding as possible of the ways in which personal e-mail was used for government work — has been a painstaking undertaking, requiring thousands of hours of effort.

For example, when one of Secretary Clinton’s original personal servers was decommissioned in 2013, the e-mail software was removed. Doing that didn’t remove the e-mail content, but it was like removing the frame from a huge finished jigsaw puzzle and dumping the pieces on the floor. The effect was that millions of e-mail fragments end up unsorted in the server’s unused — or “slack”— space. We searched through all of it to see what was there, and what parts of the puzzle could be put back together.

FBI investigators have also read all of the approximately 30,000 e-mails provided by Secretary Clinton to the State Department in December 2014. Where an e-mail was assessed as possibly containing classified information, the FBI referred the e-mail to any U.S. government agency that was a likely “owner” of information in the e-mail, so that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received, or whether there was reason to classify the e-mail now, even if its content was not classified at the time it was sent (that is the process sometimes referred to as “up-classifying”).

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

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