Did the Rus­sians hack Hil­lary?

Her dirty laun­dry wasn’t hacked — it was leaked

The Washington Times Daily - - COMMENTARY - By An­drew P. Napoli­tano

Ear­lier this week, lead­ers of the Demo­cratic Na­tional Com­mit­tee and former of­fi­cials of Hil­lary Clin­ton’s pres­i­den­tial cam­paign made the star­tling al­le­ga­tion that the Rus­sian gov­ern­ment hacked into the email ac­counts of Mrs. Clin­ton’s col­leagues to tilt the pres­i­den­tial elec­tion to­ward Don­ald Trump. They even pointed to state­ments made by CIA of­fi­cials back­ing their al­le­ga­tions.

Pres­i­dent-elect Trump has char­ac­ter­ized th­ese claims as “ridicu­lous” and just an “ex­cuse” to jus­tify the Clin­ton de­feat, say­ing they’re also in­tended to un­der­mine the le­git­i­macy of his elec­tion. He pointed to FBI con­clu­sions that the CIA is wrong. Who’s right? Here is the back story.

The Amer­i­can in­tel­li­gence com­mu­nity rarely speaks with one voice. The mem­bers of its 17 pub­licly known in­tel­li­gence agen­cies — God only knows the num­ber of se­cret agen­cies — have the same bi­ases, prej­u­dices, jeal­ousies, in­tel­lec­tual short­com­ings and ide­o­log­i­cal un­der­pin­nings as the pub­lic at large.

The raw data th­ese agen­cies ex­am­ine is the same. To­day Amer­ica’s spies rarely do their own spy­ing; rather, they rely on the work done by the Na­tional Se­cu­rity Agency (NSA). We know that from the Ed­ward Snow­den rev­e­la­tions. We also know from Mr. Snow­den that the NSA can mon­i­tor and iden­tify all dig­i­tal com­mu­ni­ca­tions within the United States, com­ing into the United States and leav­ing the United States. Hence, it would be fool­hardy and waste­ful to du­pli­cate that work. There is quite sim­ply no fiberop­tic ca­ble any­where in the coun­try trans­mit­ting dig­i­tal data to which the NSA does not have full-time and un­fet­tered ac­cess.

I have of­ten ar­gued that this is pro­foundly

un­con­sti­tu­tional be­cause the Fourth Amend­ment re­quires a ju­di­cially is­sued search war­rant specif­i­cally de­scrib­ing the place to be searched or the thing to be seized be­fore the gov­ern­ment may law­fully in­vade pri­vacy, and th­ese war­rants must be based on prob­a­ble cause of crim­i­nal be­hav­ior on the part of the per­son whose pri­vacy the gov­ern­ment seeks to in­vade.

In­stead of th­ese prob­a­ble cause­based, ju­di­cially is­sued search war­rants, the gov­ern­ment ob­tains what the Fourth Amend­ment was writ­ten to pro­hibit — gen­eral war­rants. Gen­eral war­rants are not based on ev­i­dence of prob­a­ble cause of crim­i­nal be­hav­ior; rather, they are based on gov­ern­ment “need.” This is an un­con­sti­tu­tional and ab­surd stan­dard be­cause the gov­ern­ment will al­ways claim that what it wants, it needs.

Gen­eral war­rants do not specif­i­cally de­scribe the place to be searched or the thing to be seized; rather, they au­tho­rize the bearer to search where he wishes and seize what­ever he finds. This is the mind­set of the NSA — search ev­ery­one, all the time, ev­ery­where — whose data forms the ba­sis for anal­y­sis by the other agen­cies in the in­tel­li­gence com­mu­nity.

In the case at hand, the CIA and the FBI looked at the same NSA-gen­er­ated raw data and came to op­po­site con­clu­sions. Need­less to say, I have not seen this data, but I have spo­ken to those who have, and they are of the view that though there is ev­i­dence of leak­ing, there is no ev­i­dence what­so­ever of hack­ing.

Leak­ing is the theft of pri­vate data and its rev­e­la­tion to those not en­ti­tled or in­tended to see it. Hack­ing is re­motely ac­cess­ing an op­er­a­tional sys­tem and al­ter­ing its con­tents — for ex­am­ple, re­mov­ing money from a bank ac­count or con­tact in­for­ma­tion from an ad­dress book or vote to­tals from a can­di­date’s tally. When Mr. Trump char­ac­ter­ized the CIA claim that the Rus­sians hacked the DNC and Clin­ton cam­paign emails in­tend­ing to af­fect the out­come of the elec­tion as ridicu­lous, this is what he meant: There is no ev­i­dence of any­one’s al­ter­ing the con­tents of op­er­a­tional sys­tems, but there is ev­i­dence — plenty of it — of leak­ing.

If hack­ers wanted to af­fect the out­come of the elec­tion, they would have needed to al­ter the op­er­a­tional sys­tems of those who reg­is­ter vot­ers and count votes, not those who seek votes.

Dur­ing the fi­nal five weeks of the pres­i­den­tial cam­paign, Wik­iLeaks re­leased tens of thou­sands of DNC and Clin­ton cam­paign emails to the pub­lic. Wik­iLeaks de­nies that its source was the Rus­sian gov­ern­ment, yet for the pur­poses of the DNC and Clin­ton cam­paign claims, that is ir­rel­e­vant be­cause who­ever ac­cessed th­ese emails did not al­ter the op­er­a­tional sys­tems of any of the tar­gets; the ac­ces­sor just ex­posed what was found.

We do not know what data the pres­i­dent-elect ex­am­ined. Yet in six weeks, he will be the chief in­tel­li­gence of­fi­cer of the United States, and he’ll be able to as­sim­i­late data as he wishes and re­veal what he wants. He should be given the ben­e­fit of the doubt be­cause con­sti­tu­tion­ally, the in­tel­li­gence com­mu­nity works for him — not for Congress or the Amer­i­can peo­ple.

Who did the leak­ing to Wik­iLeaks? Who had an in­cen­tive to de­feat Mrs. Clin­ton? Whose agents’ safety and lives did she jeop­ar­dize when she was ex­tremely care­less — as the FBI stated — with many state se­crets, in­clud­ing the iden­tity and where­abouts of U.S. in­tel­li­gence agents and re­sources?

The an­swer is ob­vi­ous: It was the same in­tel­li­gence com­mu­nity that can­not agree on the mean­ing of the raw data it has an­a­lyzed.

Some­one leaked the Democrats’ and the Clin­ton cam­paign’s pri­vate work, and the gov­ern­ment has a duty to find the per­son or en­tity that did so, even if it was one of the gov­ern­ment’s own. Though the truth­ful rev­e­la­tion of pri­vate facts may have al­tered some vot­ers’ at­ti­tudes, there is no ev­i­dence that it al­tered bal­lot to­tals. The law guar­an­tees fair elec­tions, not per­fect ones.

Did the Rus­sians hack Hil­lary Clin­ton? No. No one did. But some Amer­i­can in­tel­li­gence agents helped Wik­iLeaks to ex­pose much dirty laun­dry.


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