Charlie Savage’s avatarCharlie Savage’s Twitter Archive—№ 9,863

            1. I've been thinking about this too since reading that part of the IG report @DaFrench @AndrewCMcCarthy. But as a pure legal puzzle (subtracting politics, if possible), I think it may be harder from the outside to assess their judgment that there was no chargeable case here. (1/7) @AndrewCMcCarthy/1007966081301073920
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          1. …in reply to @charlie_savage
            Your premise is that this info was unmistakably big-deal secret, as most TS/SAP is. But my understanding is it may instead fall into a murky category of formally highly classified but actually well known: to wit, the fact that the CIA has a drone program in tribal Pakistan. (2/7)
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        1. …in reply to @charlie_savage
          That universally known fact is deemed TS/SAP bc the Pakistani govt consented to the strikes on condition US would not acknowledge them, providing a fig leaf of deniability. But US officials talk around its edge in unclass settings all the time - it's often literally a joke. (3/7)
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      1. …in reply to @charlie_savage
        So if that is what it is, you can see why State Dept officials might get sloppy and occasionally reference it insufficiently obliquely in low-side email, but also why it might be harder than usual to prove beyond reasonable doubt that the criminal intent standard was met. (4/7)
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    1. …in reply to @charlie_savage
      OTOH, more details might cut the other way! For ex, was this only discussing the general fact of drone strikes and/or specific strikes that were already widely reported? Or, were any about proposed strikes, i.e. real secrets in function as well as form? (I don’t know.) (5/7)
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  1. …in reply to @charlie_savage
    BTW a related issue that often arises in decisions about whether a 793 leak case is chargeable is whether a judge would rule that the defense needs to be able to talk about the actual evidence (not a CIPA substitution) in open court for a fair trial, (6/7)
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    1. …in reply to @charlie_savage
      and if so whether the agency would be willing to declassify it. Although the IG report didn’t mention it, this could also be a factor here, since the CIA is likely unable or unwilling to declassify this non-secret-but-TS/SAP fact since that would break the fig-leaf deal. (7/7)
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