Edward Snowden. Reality Winner. Bradley/Chelsea Manning. When it comes leaking classified information, these notorious names come quickly to mind.

It isn’t difficult to ascertain a leaker’s motivations; she or he usually trumpets them publicly in a plea for sympathy once caught. Similarly, a spy’s motivations invite few questions. But discerning what motivates those who abscond with classified information and don’t leak it or provide it to foreign adversaries can be more challenging.

Bizarre stories about such circumstances have proliferated in recent years, although they have received far less media attention than the Snowden, Winner, or Manning cases.  Consider, for example, the recent case of ex-NSA contractor Harold T. Martin, III.  Martin served the intelligence community for decades and spent just about the same amount of time absconding with classified information in both physical and digital form.

Martin’s defense attorney described him as a hoarder and attributed the actions to mental illness rather than any malicious intent.  As incredible as that may sound, there is little evidence to suggest otherwise. Prosecutors initially claimed that Martin was feeding the information he collected to an entity affiliated with Russian intelligence services, but that theory “faded at trial”, according to a news report.

Consider also the recent case of Air Force contractor Izaak Vincent Kemp, who authorities say printed 1,000 pages of classified material – much of it marked “TOP SECRET” – and literally walked out of his office with it.  Kemp, who was storing the materials at home for motivations that remain entirely unclear, was caught only when local police served an unrelated search warrant at his home after being alerted to the presence of a marijuana growing operation.

The news trail on Kemp’s case has been cold for months now, but from what little we know about the matter there have been no accusations by the government that Kemp was a leaker or a spy.  So, the question remains: what was his end-game?  Like with Martin, we may be left with more questions than answers.

if you take classified information, it doesn’t matter why

When we think of criminal behavior, we typically think of activities undertaken with the intention or knowledge of wrongdoing, or sometimes those which occur due to reckless negligence. The law calls this “mens rea” or, literally, a guilty mind. Purpose – why the wrongdoer did what he or she did – doesn’t always factor into the equation, although it can be either an explicit element of the crime or an aggravating factor (think, for example, hate crimes).

The criminal statutes for absconding with classified information don’t require that the act have been undertaken with an improper purpose in order to obtain a conviction. Knowingly taking classified information home is enough for criminal culpability.

Yet given the recent spate of such cases, it would seem that the government has a significant interest in assessing what, precisely, the motivation was in each situation and implementing additional security safeguards to combat future similar occurrences. That could include mandatory mental health screening for all security clearance applicants; and, as some have suggested, use of diagnostic personality assessments like the Minnesota Multiphasic Personality Inventory (MMPI) as part of the security clearance process. The theory behind such tools is that if, in fact, there are similar personality traits present in cases like Martin’s and Kemp’s, the government may be able to establish a “profile” of someone prone to mishandling classified information that could then be used to deny the individual a security clearance.

You can bet that conversations about this are already happening behind the scenes among policy-makers. Unfortunately, the bad actions of some means that all clearance holders may see increasing encroachments on their personal privacy and administrative due process rights as the government’s security programs evolve to meet emerging threats.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com