Compare And Contrast Prosecution And Sentences Of David Petraeus With Government Whistleblowers
from the high-court,-low-court dept
Former CIA director David Petraeus received his sentence yesterday for the sweetheart plea deal he struck with the Justice Department after he was discovered to have leaked highly classified information to his biographer and lover Paula Broadwell. As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine. (As journalist Marcy Wheeler has pointed out, that's less than Petraeus receives for giving one speech.)
The gross hypocrisy in this case knows no bounds. At the same time as Petraeus got off virtually scot-free, the Justice Department has been bringing the hammer down upon other leakers who talk to journalists—sometimes for disclosing information much less sensitive than Petraeus did. It's worth remembering Petraeus' leak was not your run-of-the-mill classified information; it represented some of the most compartmentalized secrets in government. Here's how the original indictment described the eight black books Petraeus handed over to Paula Broadwell:
The books "collectively contained classified information regarding the identifies of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings… and discussions with the president of the United States."
While Petraeus' supporters claim none of this information was ever released to the public after he leaked it to Broadwell, that does not matter in leak cases. You can just ask former CIA officer John Kiriakou, who disclosed the names of two supposedly undercover CIA officers to a researcher. The names were never published, but Kiriakou still got thirty months in jail.
Let's also not forget that David Petraeus lied to FBI officials when they questioned him about his leak. For a reason the Justice Department never explained, he wasn't charged for lying at all. As the New York Times pointed out today, "Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers." Just apparently not former CIA directors.
Petraeus' deal comes just days after federal prosecutors recommended another sentence to a convicted leaker who worked for the same Central Intelligence Agency—Jeffrey Sterling. In Sterling's case the prosecutors are calling for twenty-four years of prison time. Sterling was convicted of leaking information to Pulitzer Prize-winning reporter James Risen about a botched CIA mission that occurred almost two decades ago. The lawyer for former State Department official Stephen Kim, currently in jail for leaking innocuous information to Fox News' James Rosen, has also objected to the "profound double standard" in Petraeus' case versus Kim's.
To be fair, the rank-and-file at the FBI and Justice Department seem to recognize how egregious the hypocrisy surrounding Petraeus' case is: while Attorney General Eric Holder himself signed off on the lenient deal, he reportedly did so over strenuous objections from FBI and DOJ officials.
Ultimately, no one should be charged under the Espionage Act for leaking information to journalists, but if the government is going to bring charges against low-level officials, it has a responsibility to do so against high-ranking generals as well. And actually, the Justice Department's reasoning behind not seeking a trial for Petraeus is quite telling for just how unjust the Espionage Act is. As the New York Times reported:
[W]ithout a deal, the Justice Department would have faced the prospect of going to trial against a decorated war hero over a disclosure of secrets that President Obama himself said did not harm national security. Plus, a trial would require the government to reveal some of the classified information.
The Justice Department's fear about an embarrassing trial is one the most egregious aspects of Espionage Act prosecutions against leakers and whistleblowers: defendants can be found guilty even if there was no damage to national security at all. It's not one of the elements of the crime, so prosecutors don't have to prove it. By forgoing a trial because they are afraid of graymail, the government is also basically saying to future leakers "if you're going to leak classified information, make sure it's something really classified."
It's possible that Petraeus' deal was so egregious that this could be good news for other leakers. The Daily Beast's Kevin Mauer argued as much earlier today:
Petraeus's relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.
However, given the government's unrelenting pursuit of Sterling, there is little chance of this having a lasting effect. Unfortunately, the Petraeus case will go down in history as one of the most blatant examples of the inherent unfairness of leak trials and the two-tiered system of justice that whistleblowers often face.
Reposted from the Freedom of the Press Foundation
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: criminal justice, david petraeus, high court, leakers, leaking, low court, sentences, whistleblowing
Reader Comments
Subscribe: RSS
View by: Time | Thread
14th Amendment
"No State shall [...] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
We live in an era of mandatory minimums for many other crimes, but when one class of citizen is threatened with treason charges and another is given probation for similar actions, something's wrong.
[ link to this | view in chronology ]
Re: 14th Amendment
[ link to this | view in chronology ]
Re: 14th Amendment
[ link to this | view in chronology ]
Dept. of Hypocrisy?
[ link to this | view in chronology ]
Re: Dept. of Hypocrisy?
[ link to this | view in chronology ]
Re: Dept. of Hypocrisy?
[ link to this | view in chronology ]
Re: Dept. of Hypocrisy?
Sincerely Dishonest,
US Dept of Hypocrisy
[ link to this | view in chronology ]
But Petraeus did not try to change the government
He never intended to make the government stop committing crimes against its employer, the People, and the Constitution.
Now of course intent is not allowed to matter anyway when accused under the Espionage Act. So as opposed to whistleblowers, who could have argued patriotic rather than entirely selfish reasons, there was no need to accuse him under the Espionage Act.
This was merely endangering the U.S. out of greed and lust and recklessness. There was no patriotic element in need of curbing here. He was not threatening to make government accountable.
[ link to this | view in chronology ]
Re: But Petraeus did not try to change the government
Either Broadwell is one damned fine partner in bed, or he's one seriously, pathetically inept womanizer. I'm beginning to suspect latent homosexual tendencies. How else could he have managed to drag the whole DoJ along by their noses?
[ link to this | view in chronology ]
For Snowden, it's unlikely he'll ever see home again, and government officials have even "joked" about sending a drone strike after him. And all because he leaked information in an attempt to show his fellow citizens acts and behavior contrary to the letter and spirit of the Constitution he swore to protect. His life will never be the same from the one he lived the day before he decided to leak.
Petraeus' leaks were acts of sheer ego and self-interest, all he wanted to do was pad his memoirs and his bed. He gets to breathe free air, and has a fine that will be unlikely to cause him much discomfort in the long run. Tomorrow, nothing in his life will change in a way with any meaning.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
FTFY.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
People who work at the highest levels of Government get special treatment; it is not right, but it is what happens, at least until the revolution comes :-).
[ link to this | view in chronology ]
Re: Re:
That would have been the Rosenberg treatment. That would have looked like the U.S. were dead serious about holding their military leaders to any standards, vastly reducing the amount of terror the U.S. may be able to strike in the hearts of their enemies.
Do you have any idea how much less effective torture is when the victims suspect accountability? Well, torture is totally ineffective for getting useful information, but that's not the point. It's evil dirty fun.
So it sent a message to those enemies of the U.S. that General Petraeus did not get more than a wrist fap.
[ link to this | view in chronology ]
2 tiered justice system. 1 where the self perceived elites pay fines when they commit crimes and the other is where the serfs go to jail for committing the very same crimes the rich got to pay their way out of
[ link to this | view in chronology ]
I'm pretty sure they kust apply the CFAA to whistleblowers to make an example out of them.
I'm pretty sure there's an awful lot of unlawful computer access to which the CFAA isn't enforced, like every tween with a Facebook account.
[ link to this | view in chronology ]
Hypocrisy? How about reality?
Petraeus is a member of the old boys club, and as such, he gets away with leaking. Just like Bush, Cheney and the rest of that administration got away with war crimes by any stretch of the imagination. They didn't get prosecuted, nor are they suffering.
He's a member of the Golden Ring club from West Point.
See how it works?
Once you're in, you're in for life and nothing is going to damage you. He'll pay the fine, and get on with his life.
He'll even get his damned Army pension for the rest of his life...even though he should have been stripped for this. Many other officers have for lesser crimes.
Not "King David" Petraeus. Once a hero, always a hero even when the thinking he did was based on his genitals and over-sized ego. He knew he'd get away with it.
And he was right. He's still laughing about it.
[ link to this | view in chronology ]
Your Confusing A Loyal Patriot With Terrorist Sympathizers
Its leaking information TO THE PUBLIC that we need to guard against. Because THATS WERE OUR ENEMIES ARE.
[ link to this | view in chronology ]
Re: Your Confusing A Loyal Patriot With Terrorist Sympathizers
[ link to this | view in chronology ]
Re: Your Confusing A Loyal Patriot With Terrorist Sympathizers
[ link to this | view in chronology ]
Precedent
[ link to this | view in chronology ]
He has enough data squirrelled away that although they HAD to give him some sort of punishment to prevent a massive public backlash, it's just a slap on the wrist.
Otherwise he could have simply brought the Obama Administration, the Senate and Congress crashing to the ground along with VISA, Mastercard and Bank of America.
[ link to this | view in chronology ]
The Dirt
[ link to this | view in chronology ]
Justice? No, "Just us, and our friends and cronies."
It must be a pretty sweet life when a $100K fine is little more inconvenience than a parking ticket. Give an hour long talk to an audience, and you're done.
I believe this's also what they hung on Martha Stewart? As for Jeffrey Sterling, come on, he's black! Of course he's going to get shafted big time! Twenty-four years!?! Holy crap! Every time I read anything about this whole preposterous situation, I struggle to recall profanities adequate for the insanity of it. The only bright spots in this are Kiriakou has finally been released, and Snowden managed to escape their clutches.
It's stories like this that prove, despite all the good they *can* do, governments are too damned dangerous to have around. Imagine a two ton cannon on wheels below deck which has broken free of its restraints, in a ship rolling with the waves. That's government, to a T.
[ link to this | view in chronology ]
Re: Justice? No, "Just us, and our friends and cronies."
~ The natural order, where anyone bigger than you has, by the power of force, the right to steal your stuff and rape your family. Or...
~ Feudalism, which is essentially systemized cronyism and nepotism. And relies on the honor, wisdom and goodwill of those with power.
We've long since worked out that more sophisticated forms of government will decay back towards the above two. But we weren't clear about how clever humans are in making it happen.
And we can return to anarchism or libertarian separatism, but it means giving up the infrastructure that gives us nice things like roads, or electrical power, or running water.
[ link to this | view in chronology ]
Re: Re: Justice? No, "Just us, and our friends and cronies."
Those don't have to be provided by a gov't. Private enterprises have done all of them in the past and still could again, and likely a lot less wastefully, more efficiently, and less expensively, with far greater accountability.
[ link to this | view in chronology ]
Re: Re: Re: Justice? No, "Just us, and our friends and cronies."
[ link to this | view in chronology ]
Re: Re: Re: Re: Justice? No, "Just us, and our friends and cronies."
[ link to this | view in chronology ]
Privatizing large scale utilities doesn't chainge their large-government prerequisite.
And you still have the trajedy of the commons where no one wants to pay their fair share of those things that are intrinsically socialized (defese, waste management, highway systems etc.). More importanly no one can agree on what is a fair distribution of the burden.
No, infrastructure requires big government. Automated government, feasibly, but big government nonetheless.
[ link to this | view in chronology ]
ugh. Mobile keyboard
I hang my tablet in shame.
[ link to this | view in chronology ]
Re: ugh. Mobile keyboard
[ link to this | view in chronology ]
Re: Privatizing large scale utilities doesn't chainge their large-government prerequisite.
We have regulatory oversight now, yet as you say, we have problems with large industrial utilities and services. It appears that's not the solution to the problem, and we're all wasting time and money paying for it for no demonstrable benefit. A special clique within society is making out like bandits off it, but that appears to be the only benefit, if it can be called that.
[ link to this | view in chronology ]
Correction:
Feel free to cite solutions other than regulatory agencies. Obviously natural market forces didn't fix the problem on its own.
More likely we would need to analyze why the agency failed, and how it got captured.
But you do make a relevant point, namely that in the current government has failed on so many levels. We have until it bleeds out and society collapses to develop an idea of what we want to try next.
And if we don't, we'll try the same thing over again, and watch it collapse again, because the new boss is almost always the same as the old boss.
[ link to this | view in chronology ]
Re: Correction:
[ link to this | view in chronology ]