Why Are Clapper and Brennan Not in Jail?

The clearest of all the laws concerning US intelligence is Section 798, 18 US Code—widely known in the Intelligence Community as “the Comint Statute,” or “the 10 and 10.” Unlike other laws, this is a “simple liability” law. Motivation, context, identity, matter not at all. You violate it, you are guilty and are punished accordingly.

Here it is:

a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, . . . any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States …or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence . . .

Shall be fined under this title or imprisoned not more than ten years, or both.

The reasons no prosecutions have followed should be plain enough. The offenders are big people, in the permanent government and in the Democratic Party. They have a great many friends in the U.S Justice Department. From the top down, the Trump Administration has been filled by much smaller people. Loud words aside, the president has kowtowed to the intelligence agencies in every way imaginable. No prominent Republican has chosen to challenge the de facto privileged relationship between Democrats in the intelligence agencies and the media.

And so, Brennan and Clapper continue as living proof that the United States has a dual system of justice. The example of their impunity speaks louder than any speech, and reassures their leftist successors in the intelligence agencies that their channel to the Times and Post is as safe as ever.

The refusal to apply Section 798 to Brennan and Clapper —the fact that they are free men —is simply the most obvious manifestation of the fact that we have a ruling class, that it is coherent, and that it has yet to be challenged in any serious way.

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