Mishandling Classified Information: The Jack Teixeira Case
Federal Criminal Defense Attorney Ronald Chapman II discusses the Teixeira case on BBC
Teixeira’s Unlawful Disclosure of Classified Information
A United States National Guard Airmen who was given top secret clearance has leaked classified information on a discord server that was disseminated widely and potentially damaging the United States relationship with our allies. He was subsequently charged by criminal complaint with unlawful dissemination of classified information. In the affidavit authored by Special Agent Patrick Lueckenhoff an apparent informant tipped the FBI off to specific details about Teixeira leading to his ultimate arrest.
Teixeira was charged under the Espionage Act but only with an offense that carries a maximum prison term of 10 years. Specifically he was charged in two separate counts 18 U.S.C. 793(b) and 793(d) the unauthorized retention and transmission of national defense information and 18 U.S.C. 1924, the unauthorized removal and retention of classified documents.
Obtaining A Security Clearance
Many have asked how such an inexperienced young man can obtain a Top Secret clearance. The process that Teixeira underwent to obtain a security clearance is rigorous and it is surprising that a young man with such an interesting history was granted the highest level of security clearance. In order to obtain access to classified material Teixeira would have to undergo the following steps:
Submit an application - The first step is to submit an application for a security clearance. The application will ask for personal and background information, including employment history, education, and references.
Background investigation - After the application is submitted, a comprehensive background investigation is conducted by the government. This investigation will include a review of criminal records, credit history, and interviews with friends, family members, and colleagues.
Security interview - A security interview is conducted by an investigator to verify the information provided in the application and to assess the individual's trustworthiness, judgment, and reliability.
Adjudication - After the investigation is complete, the findings are reviewed by a government security clearance adjudicator, who determines whether the individual is eligible for a security clearance.
Polygraph examination - Depending on the level of clearance and the agency involved, the individual may be required to take a polygraph examination to assess their truthfulness.
Final decision - Once the investigation and adjudication are complete, a final decision is made on whether to grant the individual a security clearance.
Some agencies may have additional requirements, such as medical and psychological evaluations, and the timeline for completing the process can vary. Additionally, maintaining a security clearance requires ongoing monitoring and compliance with security protocols and guidelines.
When a person granted access to clasified information misuses the information - there are a range of crimes that can be charged.
Charges for Unlawful Dissemination and Removal of Classified Information
18 USC 793(b) and 793(d) are both sections of the United States federal criminal code that deal with the unauthorized disclosure of national defense information. Here are the elements of each section:
18 USC 793(b):
The defendant must have had lawful possession of, access to, or control over information relating to the national defense.
The information must have been information which the defendant had reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.
The defendant must have willfully communicated, delivered, or transmitted that information to someone who was not authorized to receive it.
The defendant must have known that the person who received the information was not authorized to receive it.
The defendant must have acted with the intent or reason to believe that the information was to be used to the injury of the United States or to the advantage of any foreign nation.
18 USC 793(d):
The defendant must have had lawful possession of, access to, or control over information relating to the national defense.
The defendant must have willfully retained that information and failed to deliver it to the officer or employee of the United States entitled to receive it.
The defendant must have had reason to believe that the information could be used to the injury of the United States or to the advantage of any foreign nation.
18 USC 1924 is another section of the federal criminal code that deals with the unauthorized removal and retention of classified documents or materials. Here are the elements of this section:
The defendant must have been an officer, employee, contractor, or consultant of the United States or a person who had been entrusted with classified documents or materials.
The defendant must have knowingly removed or retained those documents or materials without authority.
The defendant must have done so with the intent to remove or retain such documents or materials at an unauthorized location.
To convict a defendant under any of these sections, the government must prove beyond a reasonable doubt that the defendant committed all of the required elements of the offense. This typically requires presenting evidence of the defendant's actions, knowledge, and intent, as well as demonstrating that the information or materials involved were indeed related to the national defense and classified.
A whistleblower defense is not available to Teixeira. He did not blow a whistle at all and there was no altruistic purpose behind the disclosure. While others like Snowden and Manning have claimed this defense - the “whistleblower” defense in a classified information case is not a winner.
Prior Cases Involving Unlawful Disclosure
The United States has a long history of prosecuting the unlawful disclosure of classified information. And judging from prior cases - in the event of a conviction - Teixeira can expect similar treatment in federal court:
Edward Snowden - In 2013, Edward Snowden, a former contractor for the National Security Agency (NSA), leaked classified documents to journalists that revealed the NSA's surveillance programs. He was charged under the Espionage Act and faced multiple counts of theft and unauthorized disclosure of classified information. Snowden currently resides in Russia and remains a controversial figure in the ongoing debate about government surveillance.
Chelsea Manning - In 2010, Chelsea Manning, a former Army intelligence analyst, leaked hundreds of thousands of classified documents to WikiLeaks. She was charged with multiple counts of theft and unauthorized disclosure of classified information, and was ultimately sentenced to 35 years in prison. However, her sentence was later commuted by President Obama, and she was released in 2017.
Reality Winner - In 2017, Reality Winner, a former contractor for the National Security Agency, leaked classified documents to a news outlet about Russian interference in the 2016 U.S. presidential election. She was charged with one count of willful retention and transmission of national defense information and sentenced to more than five years in prison.
Jeffrey Sterling - In 2015, Jeffrey Sterling, a former CIA officer, was convicted of unauthorized disclosure of classified information to a journalist. He was charged with multiple counts under the Espionage Act and was sentenced to three and a half years in prison.
Thomas Drake - In 2010, Thomas Drake, a former NSA employee, was charged with multiple counts of unauthorized disclosure of classified information to a journalist. He was ultimately convicted of a single misdemeanor count of exceeding authorized access to a computer and sentenced to one year of probation. The case against him was controversial, and he has since become an advocate for government whistleblowers.
I expect a relatively quick plea and cooperation here. Treason hasn’t been charged yet but I’m sure prosecutors are waiving around a potential treason indictment as a bargaining chip to secure a quick resolution.
Stay tuned as the case progresses for updates on the prosecution of Teixeira.