Wednesday, March 25, 2015

Petraeus Gets "Sweetheart Deal" While Others Go to Jail


It isn’t news that the rich and/or powerful get better treatment than the rest of us, but when it comes to Justice Department prosecution of “leakers,” there’s a really shocking disparity between General David Petraeus - who’s getting off with a slap of the wrist - and a long list of government employee whistleblowers who have been prosecuted as spies. 

Let’s review the facts: 

Petraeus gave his highly classified notebooks to Paula Broadwell, who was writing his biography. The notebooks - which he had illegally retained at home - contained the identities of covert agents, code word information, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, and quotes from high-level National Security Council meetings.  These were not just "top secret" documents; they were classified at the very highest levels possible.  

And what was Petraeus's motive? Alerting the public to governmental abuses? Exposing violations of law? No, there was no such public-spirited motive. Petraeus was having a secret extra-marital affair with Broadwell, and apparently wanted to impress his mistress. 

That’s not all. When questioned by the FBI as to whether he had ever retained classified information or ever disclosed classified information to someone not entitled to see it, Petraeus outright lied and denied any such conduct. Yet for these admitted crimes, the Justice Department is allowing Petraeus to plead guilty to a misdemeanor, pay a $40,000 fine, and serve no jail time.  He can maintain his job as chairman of the KKR Global Institute, with a seven-figure salary, and give speeches at $100,000 to $150,000 a pop. Indeed, he is still invited to consult with the National Security Council. 

Now let’s compare that with some other victims of the Justice Department’s relentless prosecution of alleged leakers under the Espionage Act: 

Former CIA officer Jeffrey Sterling is alleged to have given information about Operation Merlin to a NY Times reporter. Operation Merlin was a bungled CIA effort to get the Russians to provide false nuclear weapons information to Iran. The evidence that Sterling was the reporter’s source is circumstantial, but if he did do it, his motive was not getting into his illicit girlfriend’s bed, but exposing an issue the American public deserves to debate. Yet the Department of Justice prosecuted him under the Espionage Act, and he was found guilty on nine felony counts involving unauthorized disclosure of classified information. He now faces a potential prison sentence of 80 years, to say nothing of having been left penniless after paying for lawyers and being out of work. 

As an aside, Sterling, who is African-American, had previously filed a race discrimination lawsuit against the CIA. But the case was dismissed - not because there was no evidence of discrimination, but because the government successfully argued that it was protected by the state secrets privilege, alleging that the litigation would require disclosure of classified information. In other words, in order to prove his case, Sterling would have had to expose classified information, and there was no feasible way to make special arrangements in court to assure that this would not occur. 

Turn to the government’s more recent prosecution of Sterling for leaking information to the reporter. Somehow the government found a way to avoid the sticky problem of classified information by having its witnesses testify using from behind a screen with voice-altering devices and using pseudonyms. 

Former Defense Department official Lawrence Franklin passed classified documents regarding U.S. policy towards Iran to the American Israel Public Affairs Committee (AIPAC), who in turn provided the information to Israel. Franklin was hoping the US would implement a "harder line" against Iranian. He was indicted on five counts of violating the Espionage Act. He pled guilty and was sentenced to nearly 13 years in prison -- later reduced to ten months' house arrest.

Thomas Drake, a senior executive at the National Security Agency gave a reporter totally unclassified information about waste, fraud and abuse at NSA. Drake said, "I did what I did because I am rooted in the faith that my duty was to the American people." Specifically, he believed that NSA’s Trailblazer program not only violated Americans' privacy, in violation of the Fourth Amendment, but would also cost billions of dollars. The reporter received an award from the Society of Professional Journalists for her series exposing government wrongdoing. 

The FBI raided Drake's residence and confiscated his computers, documents and books. Finding that Drake had taken home some classified documents, the Justice Department prosecuted him for unlawful retention of classified information, obstruction of justice and making false statements to the FBI. They never alleged that Drake gave any classified information to the reporter. 

After four years of pretrial litigation and government threats that Drake could serve 35 years in jail, the government dropped all charges against Drake and agreed not to seek any jail time in return for Drake's agreement to plead guilty to one misdemeanor of misusing the agency's computer system. He was sentenced to one year of probation and community service.  At the sentencing hearing, the judge called the government's tactics "unconscionable," in that they charged Drake with a list of serious crimes that could have resulted in 35 years in prison, only to drop all of the major charges on the eve of trial. The judge also rejected the government's request for a large fine, noting that Drake had been financially devastated, losing his $154,600 job at the NSA and his pension. 

Shamai Leibowitz, an American citizen, was an FBI linguist whose job was translating conversations in Hebrew among Israeli diplomats in the US, conversations that the FBI had received through wiretaps. He passed classified transcripts about Iran to a blogger who subsequently published them. Leibowitz said that he revealed the information because the FBI was engaging in wrongdoings that led him to conclude it was an abuse of power. Leibowitz was sentenced to 20 months in prison.

Pfc. Chelsea Manning was charged with multiple violations of the Espionage Act after disclosing more than 700,000 classified State Department cables and government documents to WikiLeaks. She said that she did so “to help people, not hurt people.” Manning was charged with 22 offenses, including several related to Espionage. She was found guilty of 20 of the charges, six of which fell under the Espionage Act, and was sentenced to 35 years in prison and a dishonorable discharge.

Stephen Kim, a former a senior adviser for intelligence at the State Department's arms control compliance bureau, was charged with revealing classified information to a reporter that North Korea might test a nuclear bomb, and with making false statements to the FBI. Kim pled guilty to one felony count of disclosing classified national defense information to an unauthorized person, and was sentenced to a 13-month prison term. At the time he was negotiating the plea, the Justice Department stated that lying to the FBI was so serious that the Justice Department would not agree to allow Kim to plead to a misdemeanor. 

John Kiriakou, a former CIA officer, was charged with leaking information to a reporter about waterboarding. He was indicted with one count of violating the Intelligence Identities Protection Act, three counts of violating the Espionage Act, and one count of making false statements for allegedly lying to the CIA investigators. He was convicted of violation of the Intelligence Identities Protection Act and sentenced to 30 months in prison. 

James Hitselberger, a former Navy linguist, worked as an Arabic translator for the United States Fifth Fleet in Bahrain. He allegedly copied documents that revealed troop activities and gaps within U.S. intelligence about Bahrain. He was charged with violating the Espionage Act for providing classified documents to Stanford University. Later the charge was reduced to a single count of unauthorized retention and removal of classified documents.  He pled guilty and was sentenced to time served.

And finally, there's Edward Snowden, a former CIA employee who leaked a vast trove of top secret documents that disclosed the U.S. government's mass surveillance programs to the Guardian newspaper. His passport was revoked, and American officials have asked for his extradition from Russia, where he is now living. He is charged with two counts of espionage, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person. 

Snowden’s leaks were vastly more extensive than those of Petraeus and the other individuals described above, but Snowden claims that he was doing a public service by revealing the extent of NSA surveillance. 

Less well-publicized are the countless numbers of mid-level government employees and contractors who have lost their security clearances and their jobs after being accused of unintentionally taking home a classified document, or failing to confess their actions to agents or investigators. Government lawyers often threaten these employees with criminal prosecution in order to frighten them into resigning and thus giving up their right to an administrative appeal. 

It remains to be seen whether the double standard when it came to Petraeus will result in less harsh penalties for others who have engaged in similar compromise of classified information. Writing in Foreign Policy Magazine,  attorney Jesselyn Radack calls Petraeus’s plea a “sweetheart deal” and the government’s actions “two-tiered justice.” On March 6, 2015, Stephen Kim’s lawyer wrote a scathing letter  to the Justice Department prosecutors, asking that his client be released, and specifically citing their refusal to let his client plead to a misdemeanor because they claimed that lying to the FBI was such a serious offense. Kim’s lawyer also noted that his client had honorable motives, whereas Petraeus was merely trying to impress his mistress. 

Similarly, on March 19, 2015 Sterling’s lawyers filed a motion  to set aside the verdict against their client, in light of the misdemeanor plea agreement offered to Petraeus. 

As it now stands, Snowden is accused of being a traitor, whereas Petraeus maintains his reputation as an outstanding leader. See comments of John McCain in “The Hill.” 

-- this blog was prepared by Elizabeth L. Newman.  You can reach her at enewman@kcnlaw.com.

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