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“This has implications that are terrifying and unacceptable,” said Steven Aftergood of the Federation of American Scientists. | Getty Critics see dangers lurking in framing of Clinton search warrant

Arguments the government offered behind closed doors when seeking a search warrant in the investigation of Hillary Clinton’s emails are causing alarm among some transparency proponents and civil liberties advocates.

An affidavit unsealed Tuesday by a federal judge in New York shows that the FBI claimed there was probable cause to believe that a laptop belonging to Anthony Weiner, the estranged husband of top Clinton aide Huma Abedin, contained evidence of crimes involving illegal possession of classified information.

Clinton aides and others have vigorously disputed that assertion, but critics are also zeroing in on another aspect of the warrant application: a claim that the Clinton-related emails on the laptop were likely to contain “contraband, fruits of crime or other items illegally possessed.”

Another passage in the affidavit seems to assert that classified information remains the government’s property, no matter where it exists: “There is … probable cause to believe that the correspondence … on the subject laptop contains classified information which was produced by and is owned by the U.S. Government.”

Some experts say the FBI affidavit, which almost certainly was vetted by Justice Department prosecutors, appears to argue that the government has the right to seize any information it deems classified from any place it has reason to think such information may be.

“This has implications that are terrifying and unacceptable,” said Steven Aftergood of the Federation of American Scientists. “We haven’t seen this line of argument widely pursued. … Taken literally, this would mean the end of independent reporting on national security policy.”

Some of the concerns and fears stem from the fact that nearly all the information on Clinton’s server that the government now asserts is or was classified was not marked classified at the time. So, it’s not that the feds are arguing that the Weiner laptop was likely to contain actual classified documents that were stolen or copied in digital form, but that the topics or facts discussed in the messages are classified.

One former federal magistrate said he found the language in the affidavit confusing when it mentioned government-owned classified information.

“I am not sure what probable cause of correspondence that ‘contains classified information which was produced by and is owned by the U.S. Government’ means,” said Brian Owsley, now a law professor at the University of North Texas. “It does not support a finding of probable cause of a violation of [the Espionage Act.] Moreover, the affidavit and the government do not allege a violation of any other federal criminal statute.”

“It does not seem to advance the finding of probable cause regarding the statute at issue,” Owsley added.

Another layer of complexity is that no law makes it illegal to possess “classified information.” The Espionage Act refers instead to national defense information, which is potentially open to much broader interpretation, but has been narrowed by the courts. One such ruling also said the government had to meet a much higher burden of proof when the information wasn’t marked as classified.

U.S. Magistrate Judge Kevin Fox approved the search warrant, but former prosecutor Orin Kerr said he doesn’t believe there was probable cause to search the Weiner laptop for evidence of a crime. Kerr said he’s less sure about the “contraband” issue.

“Whether the affidavit establishes probable cause therefore hinges on a tricky legal issue: Is classified information on a personal computer ‘contraband’ that can be seized under a search warrant independently of whether a crime occurred? I'm not sure of the answer,” said Kerr, now a law professor at The George Washington University.

The FBI did not respond to a request for comment on the warrant.

The lawyer who forced disclosure of the search warrant materials, Randol Schoenberg, said he believes lawyers and agents involved in the case were stretching to legally justify the search because all the previous work on the Clinton email probe was done without seeking a warrant that would have required convincing a judge or magistrate a potential crime had taken place. (It’s unclear why the government never asked Abedin for permission to search the newly found email files, something that might have averted going to court.)

“All of a sudden they have to meet a different standard. ...This was the first time that [they] have to say they have probable cause to believe a crime was committed,” Schoenberg said. “There’s no reason to suspect unlawful activity on the part of Huma Abedin any more than any other people with clearances. ... You could search every single one of them and say, ‘Here are some emails we think are classified.’”

Some legal experts say the government’s claim that classified information is contraband seems valid, at least in this case.

“Contraband is a salacious word. It makes you think of ‘Casablanca’ or drug dealing or smuggling … but in law-enforcement-speak it’s a routine word to describe anything you’re illegally in possession of. Stolen property is a form of contraband,” said Rodney Smolla, dean of the Widener University law school. “When you’re dealing with intellectual property that can also be contraband, like if you steal a combination to a safe, or an algorithm used by a company or a trade secret. … Government secrets in that sense are a kind of government-owned intellectual property.”

However, Smolla acknowledged that theory, if taken to an extreme, begins to collide with the First Amendment.

“What happens when an innocent person is receiving leaked information, gets it off WikiLeaks. ... You’re not supposed to traffic in it if it’s classified, so it’s arguable you’re in possession of contraband, in possession of stolen goods,” Smolla said. “There’s no question there’s a First Amendment element to all of this, [particularly when] you didn’t do anything other than receive it. There are all kinds of constitutional protections for leaked information.”

The issue of whether the government has the right to seize information it deems classified is usually intertwined with its right to pursued evidence of possible crimes, but the two issues are separated when people seek return of property after a criminal probe is over.

Kerr cited a 2014 case involving a man demanding return of an iPhone the government said had classified information on it. A federal judge in North Carolina ruled that because the phone contained classified information and couldn’t be scrubbed it need not be returned.

Similar issues arose out of searches conducted nearly a decade ago, as the government searched for the source of leaks revealing the Bush administration’s warrantless wiretapping program. When the probe was closed without charges and the former suspects asked for their computers back, the government resisted, opposing the return of not just classified information, but all the devices said to contain it.

In a preliminary ruling in the matter, federal magistrate Stephanie Gallagher appeared to acknowledge that the issue was a sensitive one.

“No court has determined that classified material in the possession of someone not cleared to have it is contraband per se,” Gallagher wrote. “To prove that Petitioners possessed contraband or derivative contraband, therefore, the Government must prove that the Petitioners obtained or used the information unlawfully.”

Gallagher ultimately concluded that the former suspects couldn’t get the classified information back, nor could they get certain unclassified National Security Agency data, but she rebuffed the government’s broader claims that it could withhold unclassified information said to belong to other agencies.

A former House Intelligence Committee aide, Diane Roark, also fought an epic battle for return of data and notebooks seized from her in 2007 in the same probe.

The government took the position that not only was Roark not entitled to anything it deemed classified and anything the NSA deemed restricted, but also to several categories of information relating to her work at the House intelligence panel. She had signed at least one nondisclosure agreement while working there.

A judge in Roark's case said the government had no obligation to return what it objected to returning, including information allegedly related to House Intelligence Committee executive sessions and unclassified data designated as “For Official Use Only.”

Some critics see the government’s approach in those cases as more aggressive even than that of the CIA, which sometimes sues former officers who try to publish memoirs without approval from the agency. The approach is typically to seek to deny such authors any profits from their books, but not to try to prevent publication altogether, something that would be the kind of prior restraint on which courts usually frown on First Amendment grounds.

Critics say government claims about owning certain information are worrying, since they suggest the facts in a former official’s head could be subject to seizure anytime he or she wrote them down.

“When you’re talking about the unauthorized transfer of government information into the public domain, what else is reporting, if not that?” Aftergood asked. “There’s a looming clash with basic constitutional principles here. That battle is not yet engaged, but you can see it on the horizon when you look at this affidavit.”