Government Tells Jeffrey Sterling He's No General Petraeus; Defends 20-Year Sentence Recommendation

from the consistently-inconsistent dept

No sooner had General Petraeus received a mild scolding for handing over pages and pages of classified information to his biographer/mistress than the defense team handling Jeffrey Sterling’s case saw a point of entry to argue that the proposed sentence of 19-24 years in prison was too severe.

Petraeus, who was also a CIA official, received two years probation and a $100,000 fine. The defense has asked for something more in line with recent prosecutions of whistleblowers and leakers: something between Petraeus and John Kiriakou (30 months), as it were.

The government has responded and it sees nothing wrong with punishing certain leakers one way and punishing Jeffrey Sterling another.

Federal prosecutors on Thursday defended their use of the Espionage Act to prosecute a former CIA officer who leaked information to a New York Times reporter and suggested it was “mistaken” for him to receive a sentence far below what federal guidelines call for because he gave materials to a journalist, rather than a foreign government.

The government argues that Sterling’s leaks were far more severe than any of those cited in the defense’s filing (Petraeus, Kiriakou, Stephen Jin-Woo Kim), seeing as they compromised “Russian assets” and caused the eventual shutdown of an (at that time) ongoing operation.

The filing also argues that Petraeus’ disclosure of classified info to his biographer — arguably a member of the public — was not the disclosure of classified info to a member of the public.

Petraeus had given his biographer – who possessed a security clearance – access to classified information and improperly stored classified information at his residence. None of this classified information was included in his biography, made public in any other way, or disclosed by his biographer to any third parties.

It cites the government’s prosecution of reporter James Rosen in support of its arguments — itself a bad precedent. It also notes that no two cases are alike, although not in the way the defense team argued that same point.

Each national security case is unique. Each comes with its own intelligence equities and problems, which, unless one is intimately involved in the prosecution of the case, will never be understood completely.

Government knows best! It’s well-established that each case is unique, although not in the way the government presents it. A lot of sentencing decisions are based on prosecutors’ recommendations. If they don’t really have an urge to punish someone, they’ll offer plea bargains and lighter sentencing. If they want to turn someone into an example, they’ll be as aggressive as possible — stacking charges and rejecting lesser pleas.

This type of behavior is common to the entire spectrum of the justice system, from the county level all the way up to DOJ-prosecuted cases. So, it’s redundant to say each case is unique. What the government needs to acknowledge is that it frequently acts inconsistently when prosecuting leakers and whistleblowers. But it won’t.

Additionally, should one wish to obtain a wrist slap for espionage charges, the best bet is hope for a timely trial that might cause the government to weigh its vindictive urges against the potential disclosure of classified information.

As this Court noted in sentencing Mr. Kiriakou: . . . I recognize the difficulty the government has in prosecuting these types of cases. They have to balance the potential danger of disclosure of very sensitive information when deciding how to proceed, and in balancing those concerns, they came up with this plea. Kiriakou, Sentencing Transcript at 20-21 (January 25, 2003). Indeed, this Court indicated it would have sentenced Kiriakou within the Guidelines had the case not been a binding plea.

We can only speculate about the difficulties faced by the prosecutors and intelligence counterparts in these other cases. The prosecution in Petraeus, for example, undoubtedly considered the difficulty of proving intent and willfulness on the part of the defendant, elements of a § 793 offense, as well as the likelihood that very sensitive classified information would necessarily be disclosed at trial, when it decided to resolve the case through a plea agreement.

We can “only speculate” as well, but we know what it looks like from the cheap seats: favoritism towards those who play on the government’s “team,” and harshly treating those who point out the government’s wrongdoing. Even Kiriakou’s comparably-light sentence was far too harsh for the supposedly-criminal acts he performed, which were completely indistinguishable from other CIA officials’ — including CIA Director Leon Panetta’s — disclosure to the screenwriters behind Zero Dark Thirty.

All the government’s filing does is further confirm that the justice system isn’t really all that “just.” The Petraeus prosecution pretty much shattered any remaining illusions about the fairness of the system. Some get wrist slaps. Some get the thrown book.

[Updated] And it appears Sterling will receive something in between the two extremes. The government was pushing for a sentence of 188-235 months, but it appears to have settled for something closer to Kiriakou’s sentence: 42 months. The presiding judge even cited his case when sentencing Sterling:

“To put you at ease, the guidelines are too high,” [Judge Leonie] Brinkema said as the sentencing hearing got underway, glancing at Sterling and his lawyers, Ed MacMahon and Barry Pollack.

She went on to say that Sterling’s case was similar to Kiriakou’s, for which she had also been the presiding judge, because both involved the disclosure of the identity of an intelligence agent. She said Sterling should serve more time because Kiriakou had pleaded guilty whereas Sterling pleaded innocent and was found guilty by a jury. Brinkema added that “a clear message” had to be sent to people in the intelligence community that a price will be paid for revealing the identities of intelligence agents and assets, though she also said, in what appeared to be a reference to Petraeus not serving any prison time, that the judicial system had to be fair.

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Comments on “Government Tells Jeffrey Sterling He's No General Petraeus; Defends 20-Year Sentence Recommendation”

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Anonymous Coward says:

Ugh. What BS. It’s clear as day they are simply THREATENING him with the Espionage Act just to agree to being guilty to I assume the other dozen charges against him. US prosecutors disgust me.

He should say no. They won’t prosecute him under the Espionage Act (unless he was ACTUALLY a double agent – but he wasn’t).

David says:

Re: Re: Spread this far and wide

This’s long been standard practice. You can plead guilty of murder to get out of the death penalty.

So how are the penalties increased for the NSA headlums who habitually deny breaking Constitution, open and even secret laws and regulations until proof is on the table, again and again and again and again and again all over? They don’t even get a slap on the wrist after the tenth repetition.

Anonymous Coward says:


has always been the electorate.

Go ahead keep bitching about your overlords, you elected them.

The first and foremost duty of the electorate is to sit as jury, not only ensuring that criminal get theirs, but also so that they can STOP corrupt legal systems.

But no, instead we sit around swinging our weakest weapons, and our lamest comments.

The next time you are called to jury, be a fully informed juror and do your duty to stop the corruption in its damned tracks!

WE are the ones with the power and we must wield it correctly because we can, in fact, send a huge neon finger right up front and center in the face of ‘The Man’.

The laws WILL change when everyone they try to prosecute are acquitted!

Anonymous Coward says:

Petraeus should have received a sentence that was more severe than anyone else. the position of leadership and trust he was in, he totally annihilated! talk about when someone has the government on his/her side! consider the good that has come out of what the so-called ‘whistle blowers’, apart from the actual government, did for the world, but were immediately branded as traitors! he was more of a traitor than any of these others, but, as they say, ‘The Devil Looks After His Own!’

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