A good (and frequently missed) point about assumption of innocent and guilt

Is ‘Guilty Until Proven Innocent’ the New Standard?

Interestingly, there is an ambit more welcoming of rank hearsay: intelligence-gathering and analysis. Intelligence officers deal in probabilities, not proof, so as long as they appropriately weigh the biases and lack of verification attendant to information, they need not dismiss it out of hand. But there is a caveat: Intelligence matters are classified. A big part of why we do not police intelligence-gathering the way we do criminal proceedings is that the information is never supposed to become public, never supposed to be a source of embarrassment to the people implicated.

Intelligence is a national-security exercise, not a rendering of justice. As we have frequently stressed in pointing out that the FBI’s Russia investigation is a counterintelligence probe, not a criminal investigation, the point is to divine the intention of foreign powers that could threaten American interests. We do not owe hostile foreign governments a presumption of innocence — indeed, we could not protect the country if we extended one.

In national-security matters, if there is a threat, it is sensible to proceed with a “guilty until proven innocent” mindset because threats emanating from foreign places where our law does not apply and our investigative agencies do not operate will frequently not be amenable to courtroom standards of evidence. But the trade-off is that we know we could be wrong in a way that could slander people, so we keep the information under lock and key. If we took any other approach, if we required even a moderately demanding standard of proof before information could be considered, we could miss information that helps save lives.

There has been a lot written about this particular concept of innocent until proven guilty vs guilty until proven innocent. But I think that this particular opinion hits on an integral part of why it the idea of a counterintelligence probe being "criminalized" with a Special Counsel appointment was so wrong, and potentially dangerous.

As pointed out, one of the very distinct differences between a counterintelligence and criminal probe is the concept of classification. The reality is that Americans who are under investigation in the aspect of a counterintelligence probe are not publicly revealed in counterintelligence probes. Even the FICA courts (which allow our intelligence agencies to spy on Americans) are secret and classified. The idea that if they "get it wrong" that they don't ruin the reputation of an otherwise innocent American.

But when you put a former Prosecutor in charge of what was a counterintelligence probe, the first thing that's going to give (one way or the other) is the secrecy and classification of information. People who were otherwise being privately investigation under the guise of a counterintelligence probe, were suddenly being outed as being part of a criminal probe, even when no crimes have been proven to have taken place.

Let's look at the Steele dossier under the original concept of the FBI investigating it as part of a counterintelligence probe. We obviously know by now that it was opposition research. Steele himself admitted in court documents*  that his dossier was raw intelligence that warranted further investigation, and that it had been legitimately reported to be "unverified", "unconfirmed", and that it contained "potentially unverifiable" allegations.  A counterintelligence investigation may be justified, because there is a "potential" harm to the country, and (just as importantly) because the intelligence investigation would not be reported to the general public. Again, if none of the allegations turn out to be verifiable, then we know the intelligence was wrong and that nobody is technically harmed.

For a good portion of the time the FBI and other agencies were investigating the dossier and potential Trump Russian connections, the general public knew nothing about it. Because they shouldn't. The fact that these things remain secret "allows" our intelligence agencies to behave in certain ways that our law enforcement is not allowed to.

But if we decide to turn it into a criminal probe, then the concept of due process is turned on it's head, because suddenly names and allegations are being revealed, not only before they are proven, but even before they are legally or officially alleged as criminal by the Government. The problem becomes that an intelligence dossier of unverified (and potentially unverifiable) allegations suddenly is provided a whole lot of credibility if it is suddenly tied to a criminal probe.

Between the leaks of names and allegations, along with the very existence of special counsel, people have had their lives turned upside down, reputations destroyed, all because certain people decided that a behind the scenes counterintelligence probe should be made public, and eventually turned into a criminal probe. One has to wonder, when we listen to James Comey talk about his involvement in all of this...  if that didn't become the plan the very day he got fired.

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