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

Filed Under: criminal justice, david petraeus, high court, leakers, leaking, low court, sentences, whistleblowing

People Who Got Shorter Sentences Than Bradley Manning: Spies Selling Secrets To Russians & Active Terrorists

from the disproportionate dept

By now, of course, you've heard that Bradley Manning received a sentence of 35 years, and lots of people are arguing over whether or not this is reasonable. In fact, we've even seen some people arguing that he got off easy. Okay, well, let's explore that line of reasoning. Over at the Huffington Post, there's a good article looking at the sentences that eight actual spies received from the US. These are people who actively sold or tried to sell key US secrets to enemies, such as the Russians, as opposed to revealing wrongdoing to the public via the press. Guess what? The actual spies got off with lighter sentences.

Take, for example, the case of David Henry Barnett, a CIA agent who directly sold secrets to the Russians, including but not limited to outing around 30 active CIA agents to the KGB. Oh, and at the urging of the KGB, he also tried to get a job on Capitol Hill in order to get access to more secrets. He was eventually caught and charged with espionage in 1980... and received an 18 year sentence. Got that? Directly sell the identity of CIA agents to the KGB and you get about half the time that Manning got, not for revealing the identity of any intelligence agents, but basically for embarrassing the State Department and the military. That doesn't seem right.

Okay. And how about people, including Americans, who actively tried to hurt America? Remember, Manning made it quite clear his goal was to help America. But that's not true for these five people who joined the Taliban or teamed up with terrorists working on plans to attack America. Those people actively wanted to harm America. And they got shorter sentences.

David Hicks: An Australian national who was captured fighting alongside the Taliban and sent to Guantanamo Bay prison in 2002, Hicks plead guilty to material support for terrorism in a Gitmo military commission in 2007 and was sentenced to seven years confinement. That sentence was reduced to nine months given time already served.

John Walker Lindh: Lindh was convicted of a slew of terrorism and conspiracy charges in 2003 for fighting with the Taliban against the U.S. invasion of Afghanistan. He was sentenced to 20 years in prison.

Or, for a different type of comparison, how about how other countries have treated leakers of key government information? Once again, we discover people who appear to have revealed much more damaging information... and got off with much lighter sentences.

Had he been born in Denmark, he might have gotten four months for disclosing information a Danish court found highly damaging to national security. That’s the penalty Danish Defense Intelligence analyst Frank Grevil received in 2005 for disclosing threat assessments concerning Iraq’s possession of weapons of mass destruction.

Or, had he been British, he could have been released after serving seven weeks of a six month sentence, as was David Shayler, the former MI5 member who gave a newspaper 28 security and intelligence files on a variety of topics, including on Libyan links with the IRA, Soviet funding of the Communist party of Great Britain, agents’ names and other highly sensitive information.

Or, given his military status, he might have received a sentence of 12 months in jail – the penalty a British judge gave to Navy petty officer Steven Hayden in 1998 for selling significant security and intelligence information to a newspaper concerning a plot by Saddam Hussein to launch anthrax attacks in the UK. That sentence was the heaviest awarded to any of the eight Britons convicted of disclosing sensitive information since the current Official Secrets Act was passed in 1989.

In fact, the article notes that, after looking at the laws of 20 European countries, they discovered that while all have criminal penalties for disclosing classified national security info, most have a top penalty of just a few years in jail, so long as the person leaked the information, rather than delivering it directly to a foreign state. In the UK and Great Britain, for example, the longest time allowed under law is two years in prison. France is the most aggressive punisher, where leakers can face up to 7 years in jail.

Now, compare that to the truth about Bradley Manning. There's no evidence he put anyone in danger. Nothing he leaked was "top secret" (even though he had top secret clearance). His intent was clear from the beginning and it was not to aid our enemies or to harm America. Yet guess who gets the longer sentence?

Given all of these comparisons, it's difficult to see how the sentence that Manning received is anywhere even close to proportionate or reasonable. It seems fairly obvious: Bradley Manning was not punished so harshly for harming the US. He was punished for embarrassing the government. That's not how things are supposed to happen in an open and free society.

Filed Under: bradley manning, leaks, prison, punishment, sentences, sentencing, spies, terrorists

DailyDirt: English Curiosities

from the urls-we-dig-up dept

The English language is one of the hardest languages to learn. There are countless irregularities and significant differences between written and spoken English grammar that can trip up almost anyone. Here are just a few linguistic analyses of slightly older versions of English .

• A method of diagramming English sentences was invented 166 years ago as a way to teach English grammar in a simpler way. Imagine if this was invented today.... [url]
• Linguistic anthropology looks at how language has changed and influenced social life. Some words have changed their meanings more rapidly than others, and here's a chart showing some of the words that have stayed the most consistent with time. [url]
• The most significant change to the English language is... the progressive passive. People used to say sentences like: "The house was building" instead of "The house was being built". (And long ago, it was "The house is a-building" or "The house is on building".) [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: diagramming, english, grammar, language, linguistic anthropology, progressive passive, sentences

Using An Online Map As Part Of Your Criminal Activity Gets You A Longer Sentence In Louisiana

from the please-explain... dept

Here's a bizarre one. Reader withersteen alerts us to a strange new law that has been passed in Louisiana, which will add from one to ten years to your prison sentence if you use an online map in the process of committing a crime:

A bill headed to Gov. Bobby Jindal's desk would increase penalties for crimes committed with the use of an Internet-generated "virtual street-level map."

Senate Bill 151 by Sen. Robert Adley, R-Benton, provides for an additional year in prison for crimes committed using the maps, including acts of terrorism or other criminal offenses like burglary or stalking.

An act of terrorism using the maps could mean an additional 10 years behind bars.

Apparently the bill passed by a vote of 89-0. I'm trying to figure out what the rationale for this law is, and the best I can figure out is that this is a bizarre kneejerk reaction to services like Google's Street View, and the claims from some that such services could be used to "scout out" crime locations. Of course, the same is true of driving by a location. Will Senator Adley add a new bill that increases your prison sentence if you first drive by the location before committing the crime?

Filed Under: crime, louisiana, online maps, sentences

One Spammer Sentenced To 4 Years In Jail As Another Escapes From Prison

from the revolving-doors dept

Last week, we asked you how you would sentence a convicted spammer, and you came up with all sorts of colorful solutions. I doubt it influenced the judge much, but she's now sentenced the spammer in question to almost four years in jail, noting that she hopes it will serve as a warning to other spammers, especially unrepentant ones like Robert Soloway:

"This individual has refused to stop his criminal conduct, notwithstanding two separate civil judgments and an injunction by a U.S. federal court judge. I suggest to you the only effective way to stop Soloway is a long prison sentence during which he'll be incapable of continuing this criminal activity."

Of course, on the very same day the sentence was handed down, another spammer escaped from the minimum security prison where he was serving a 21-month sentence. Federal Marshals and the FBI are apparently now searching for him. Perhaps Soloway will have a bit more security.

Filed Under: jail, robert soloway, sentences, spam, spammers

More Spammers Getting More Long Term Sentences; But Does It Help?

from the rot-in-jail dept

While there are still plenty of people out there who think that there can be no punishment that is too cruel for spammers, it still seems like incredibly long sentences are a bit out of proportion with the crime. Two more spammers have now been sentenced to over five years each for sending out pornographic spam emails in violation of CAN SPAM. There is an argument to be made that such high penalties act as a deterrent to other spammers, but there doesn't seem to be any evidence that that's true. Considering that the amount of spam being sent has continued to grow over time (despite some other high profile sentences) it's unclear whether these long sentences really do much good.

Filed Under: sentences, spam