Former CIA Director May Face Charges Under Espionage Act, Showing How Ridiculous Espionage Act Is

from the will-it-happen? dept

In a surprising development, the New York Times reported late Friday that the FBI and Justice Department have recommended felony charges against ex-CIA director David Petraeus for leaking classified information to his former biographer and mistress Paula Broadwell. While the Times does not specify, the most likely law prosecutors would charge Petraeus under is the same as Edward Snowden and many other leakers: the 1917 Espionage Act.

It remains to be seen whether Petraeus will actually be indicted (given how high-ranking government officials so often escape punishment), and the decision now sits on Attorney General Eric Holder's desk. But this is a fascinating and important case for several reasons.

First, all of Petreaus's powerful D.C. friends and allies are about to be shocked to find out how seriously unjust the Espionage Act is—a fact that has been all too real for many low-level whistleblowers for years.

By all accounts, Petraeus's leak caused no damage to US national security. "So why is he being charged," his powerful friends will surely ask. Well, that does not matter under the Espionage Act. Even if your leak caused no national security damage at all, you can still be charged, and you can't argue otherwise as a defense at trial. If that sounds like it can't be true, ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. The judge in his case ruled that prosecutors did not have to prove his leak harmed national security in order to be found guilty.

It doesn't matter what Petraeus's motive for leaking was either. While most felonies require mens rea (an intentional state of mind) for a crime to have occurred, under the Espionage Act this is not required. It doesn't matter that Petraeus is not an actual spy. It also doesn't matter if Petraeus leaked the information by accident, or whether he leaked it to better inform the public, or even whether he leaked it to stop a terrorist attack. It's still technically a crime, and his motive for leaking cannot be brought up at trial as a defense.

This may seem grossly unfair (and it is!), but remember, as prosecutors themselves apparently have been arguing in private about Petraeus's case: "lower-ranking officials had been prosecuted for far less." Under the Obama administration, more sources of reporters have been prosecuted under the Espionage Act than all other administrations combined, and many have been sentenced to jail for leaks that should have never risen to the level of a criminal indictment.

Ultimately, no one should be charged with espionage when they didn't commit espionage, but if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board—no matter one's rank in the military or position in the government. So in one sense, this development is a welcome one.

For years, the Espionage Act prosecutions have only been for low-level officials, while the heads of federal agencies leak with impunity. For example, current CIA director John Brennan, former CIA director Leon Panetta, and former CIA general counsel John Rizzo are just three of many high-ranking government officials who have gotten off with little to no punishment despite the fact we know they've leaked information to the media that the government considers classified.

So hopefully Eric Holder does the right thing and indicts Petreaus like he has so many others with far fewer powerful connections. As Petraeus himself once said after CIA whistleblower John Kiriakou was convicted for leaking: "There are indeed consequences for those who believe they are above the laws." 

But if Petraeus does get indicted, perhaps we should start a new campaign: "Save David Petreaus! Repeal the Espionage Act!"

Republished from Freedom of the Press Foundation

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Filed Under: cia, david petraeus, doj, espionage act, fbi, leaks


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  • icon
    Ninja (profile), 12 Jan 2015 @ 4:48am

    But if Petraeus does get indicted, perhaps we should start a new campaign: "Save David Petreaus! Repeal the Espionage Act!"

    That would be amusing and extremely cynical but if it helps repeal such act then I'm all for it. Start by demanding as patriotic American citizens that the espionage act is brought upon Petreaus in its full ravenous glory spitting the same tired rhetoric the intel morons use (you know, millions dead because of such leaks). Then start a campaign supporting him for being a victim of a broad, unconstitutional (is it?) law.

    This should be fun to watch.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2015 @ 6:31am

    too big to jail

    Should David Petraeus end up on the wrong side of a jail cell, it's not unlikely that he will wiggle out the same way as another high-level leaker of CIA secrets, I. Lewis "Scooter" Libby, with a presidential pardon or commutation.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jan 2015 @ 7:07am

      Re: too big to jail

      The problem is that it should not be allowed to happen.

      Far too often officials are protected from their vast ignorance of the laws they institute because prosecutors "corruptly elect" or are "outright politically pressured" to drop charges.

      Since we cannot seem to hit home, then we need to hit the friends they forget to protect... which means they will lose friends... and when you start losing those guys... you lose the others. Then we can finally get some shit cleaned up.... well hopefully... probably a pipe dream at this point.

      reply to this | link to this | view in chronology ]

  • identicon
    Unanimous Cow Herd, 12 Jan 2015 @ 6:46am

    Throw the book at him!

    Then we can let the healing begin.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2015 @ 6:48am

    Pure political maneuvering

    This effort will be carried forward just enough to ensure that Petraeus's future political ambitions are neatly undercut.

    reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 12 Jan 2015 @ 7:26am

      Re: Pure political maneuvering

      yes, THANK YOU...

      this is too focused on the superficial story, and not enough reflection on the back story and its deep political implications...

      petraeus was determined persona non grata by the powers that bee at some point; no doubt, some spook hoovering of communications is what set him up to be exposed...

      (what ? are you a child ? do you think there aren't thousands of him doing ten times 'worse' (meh), WHY would HE (she) get 'caught' ? ? ? BECAUSE the PUPPETMASTERS wanted him to be destroyed... you and i may never know the reason -hell, HE MIGHT NOT-, but their star chamber has made that verdict...)

      and -again- there ARE a hundred administration leakers leaking ten times 'worse'; BUT they will skate by unmolested because sauron has not turned his gaze on them...

      The They (tm) have made it clear that petraeus is toxic, and all the insiders will shun and revile him, and the outsiders will ignore him because he is damaged goods...

      another ho-hum day in Empire...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Jan 2015 @ 9:26am

        Re: Re: Pure political maneuvering

        I did not think of it quite to that level, but yea, I think everyone knows at the back of their minds that Petraeus is going to be made a pasty for reasons we will most likely never know fully.

        Even so... I will not feel sorry for the dirt bag either way. You see... when a dirt bag gets his nuts kicked... I don't care if it was done by the hero or the villain.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 12 Jan 2015 @ 7:14am

    Maybe I'm a cynic...

    (Oh wait, I am)

    But I imagine if he is actually charged, things will progress just enough to score some points with whoever is behind the drive to bring him to trial, and then things will be quietly dropped, no real trial, no judgement.

    As the AC above notes, this is almost certainly nothing more than pure politics, and even if it wasn't, pretty much no court in the US has the guts to actually prosecute a CIA director, former or not.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Jan 2015 @ 1:00pm

      Re: Maybe I'm a cynic...

      I wonder when the U.S. population at large will finally realize there is a two-justice system, and revolt against it? Really, when you look at it:

      * A violent, vicious, and extremely punitive justice system for the poor, middle-class, and not well-connected to constantly "set an example";

      * A coddling, comfortable, and gentle kangaroo court system for the rich and well-connected (and cops) that pretends on its face to issue "harsh" sentences just strong enough to calm the masses, but not even scratch the guilty (assuming they even make it to indictment).

      Few things in this world so deeply offend me as this does.

      reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 12 Jan 2015 @ 7:15am

    Did anyone really think Petreaus wouldn't be facing charges even though he was Director of the CIA?

    The Obama government has prosecuted more whistleblowers and those that have leaked information than any other Administration in U.S. history.

    Eric Holder's time as the head of the U.S. DOJ will be remembered as one that aggressively pursued journalists, leakers and whistleblowers to the full extent of the law.

    This Obama led government sought to punish anyone who embarrassed it, and James Risen's case is a prime example of how far the U.S. DOJ will pursue a person.

    Petraeus passing of documents to Broadwell was stupid on his part,in actuality it seems it was more a thing of bravado to impress Broadwell.

    All indications are that there was nothing in those documents that would harbor any critical military secrets or threaten the nation that Broadwell received.

    This is more a case that due to Petraeus's position, that it had embarrassed the Administration, and how could they not prosecute Petraeus when they had done so to Risen and others, the Administration knew they would get called out on their being a double standard of they did nothing.

    Petraues has skeleton's in his closet from his being in charge of how things in Iraq went with the torture at Abu Grahib.

    Petraeus isn't a stupid man, he's intelligent and was well respected and will always be besmirched by the things that happened in Iraq while he was in charge, but he isn't dumb enough to have given out anything that was so secret or sensitive that it would damage him and the Administration.

    Petraeus just got caught up thinking with his little head instead of his big head while trying to impress one woman and got caught up between two women who saw the other as some type of threat.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2015 @ 7:31am

    It says a lot about our priorities when the espionage act is enforced, but the torturers in the same agency walk free.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 12 Jan 2015 @ 7:37am

      Re:

      Can't recall where I first saw it, but there was a rather to the point picture done about that, highlighting that the only person involved with the CIA torture program who was behind bars... was the one who revealed it.

      Of course, that's hardly surprising really(disgusting yes, surprising no). When you've got people breaking the law and human rights left and right, and they happen to be the ones in charge, then violating the law isn't going to be treated as wrongdoing, exposing those violations is.

      reply to this | link to this | view in chronology ]

    • identicon
      RD, 12 Jan 2015 @ 8:24am

      Re:

      "It says a lot about our priorities when the espionage act is enforced, but the torturers in the same agency walk free."

      Most insightful comment of the DECADE. This, right here, is the central problem of government: largesse and malfeasance are protected while virtue and truth are smashed with the biggest hammer possible, as a "lesson" to all others. Nothing will ever get better until this gross imbalance is addressed.

      reply to this | link to this | view in chronology ]

  • identicon
    Math Man, 12 Jan 2015 @ 7:36am

    Petraeus Indictment Won't Happen

    The leak of possible charges:
    1. Shuts down his political aspirations going into 2016.
    2. Will never happen. CIA Director under Clinton John Deutch put classified files on his home computer, one his son played computer games on. He lost his security clearance for five years. Now he's back consulting and raking in big bucks. Had he been private Jones, he'd be serving fifteen years at Leavenworth. CIA Director under Reagan was convicted of five counts of lying to Congress, overturned on appeal due to supposed influence of his immunity testimony on witnesses. No problem serving as adviser to government and industry on terror related issues to this day.

    He probably should be convicted. He released classified documents to keep his girlfriend in bed with him. Sounds like he used his position for personal gain.

    reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 12 Jan 2015 @ 4:19pm

      Re: Petraeus Indictment Won't Happen

      just because you got to be an insider, doesn't mean you can stay one, or won't be subject to internecine warfare of puppetmasters above your pay grade...

      *my* guesstimate (based on rumor-mongering of koo koo kwazy konspiracy sites), is that he *had* (past tense, doesn't matter what he has now: he is toxic ! see how that works ? ask scott ritter, et al...) 'the goods' on the whole up/down the chain of command on the original torture regime instituted, carried out in various places, and culminating in the devolution to the worst abuses at normal POW jails like abu ghraib...

      he could be a handy person to have in the docket if -say- a worldwide peacekeeping organization were to actually perform their chartered, most serious, vital duties, and indict a fuckton of 'merikan 'leaders' on war krimes...

      ...or, *would* have been...
      now ?
      well, he doesn't STFU, won't be long til some kiddie pron shows up on his 'puter...

      wet jobs are so messy AND unnecessary: there are a MILLION ways short of murder to control most people, WHEN YOU HAVE THE RESOURCES AND MEANS...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2015 @ 7:39am

    Until actual charges are decided upon and released, articles like this are little more than fiction since they have no factual predicate.

    Given the subject's history of government service, it should be abundantly clear he had intimate familiarity with classified information and the repercussions associated with unauthorized disclosure. For violating this he should be held accountable just like anyone else. Now, all that is needed for a meaningful story to be published is/are the actual charge(s).

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 12 Jan 2015 @ 12:24pm

      Re:

      Until actual charges are decided upon and released, articles like this are little more than fiction since they have no factual predicate.

      There are all kinds of facts in the article, just whether he's been indicted isn't one of them.

      For violating this he should be held accountable just like anyone else.

      Very similar to what Trevor Timm said: "if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board—no matter one's rank in the military or position in the government."

      reply to this | link to this | view in chronology ]

  • identicon
    tomczerniawski, 12 Jan 2015 @ 7:40am

    Torturers of human beings to death: not charged.
    Torture whistleblowers: imprisoned.

    Spies who target their own citizens in violation of the constitution: not charged.
    Spying whistleblowers: forced into exile in fear of lifetime imprisonment.

    Petraeus has nothing to worry about. He'll be let off the hook - unless of course it was him that confessed the sharing of classified information, in which case he'll count as a whistleblower, and never see light of day again.

    When exposing a criminal act is seen as a criminal act, you are ruled by criminals.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 12 Jan 2015 @ 7:53am

      Re:

      When exposing a criminal act is seen as a criminal act, you are ruled by criminals.

      That really needs to be pointed out more often, given how true it is. Treating the exposure of illegal actions as illegal itself, makes it all too clear that the ones committing the original illegal actions are criminals trying to hide their actions. It shows that even they know they're breaking the law, and yet they continue to do so anyway, despite that knowledge.

      reply to this | link to this | view in chronology ]

  • icon
    mattshow (profile), 12 Jan 2015 @ 8:18am

    I'm going to nitpick, because I think this is an important detail: in discussions of criminal law, motive and intention are not the same thing. Motive refers to your reason for doing a thing, and intention refers to whether you intended to do a thing. You might have had a very noble reason for doing a thing, but you still INTENTIONALLY did it.

    The mens rea requirement in criminal law only looks at intention, not motivation. So while the Espionage Act might be unique in that it removes the requirement for the state to prove intention, the fact that motive doesn't matter isn't unusual. That's almost always the way it goes in criminal matters. (Though once guilt or innocence has been proved, motivation sometimes becomes a factor in sentencing).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2015 @ 8:19am

    this trial needs to go on and then see what the verdict is. if found not guilty, the reasoning behind it. if guilty, the reasoning behind that and what punishment is given. if severe, why, if lenient, again why. the conclusion being if someone in his position gets away with the charges, why not others, with Snowden being the most prominent.
    i also want to know why the likes of Clapper and Rogers and running around like scalded cats demanding 'off with his head!'?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2015 @ 8:42am

    Difference is already here

    Every other espionage suspect has their live ruined from the initial allegation. You don't see him treated like Bill Binney with a swat teams grabbing him out of the shower, or stealing his daughters ipods.

    Regardless of the indictment, he's already been given better treatment.

    reply to this | link to this | view in chronology ]

  • icon
    Spaceman Spiff (profile), 12 Jan 2015 @ 8:53am

    Throw them all to the wolves!

    "But if Petraeus does get indicted, perhaps we should start a new campaign: "Save David Petreaus! Repeal the Espionage Act!"" Nah, I say the new campaign should be "Indict John Brennan, Leon Panetta, and John Rizzo for espionage! No Favoritism! They did the crime. Let them do the time!"

    reply to this | link to this | view in chronology ]

  • identicon
    Docrailgun, 12 Jan 2015 @ 9:17am

    Patraeus

    This doesn't have much to do with him as CIA director, but let's not forget that this man more or less used his contacts in the Bush White House to completely bypass several levels of superiors (especially Cheney and Rumsfeld) and run the Iraq war the way he felt best. Read his book. He and his cabal of admirers in the Army could have easily staged a coup if they had wanted to.

    reply to this | link to this | view in chronology ]

  • identicon
    Chris Brand, 12 Jan 2015 @ 10:50am

    Interesting to reflect on this and the PATRIOT Act

    So the Espionage Act was enacted in 1917, towards the end of the first world war, when presumably there was a lot of concern about the effect of (actual) spies, and a perceived need to be able to come down hard on them. It's still in force today, close to 100 years later.
    The PATRIOT Act was enacted in 2001, when there was a lot of concern about terrorists, and a perceived need to come down hard hard on them...

    reply to this | link to this | view in chronology ]

    • icon
      GEMont (profile), 13 Jan 2015 @ 11:54am

      Re: Interesting to reflect on this and the PATRIOT Act

      Careful now.

      I believe that clear, logical thinking of that nature could get you listed as a probable Terrorist, subject legally to extraordinary rendition to a prison in a foreign country (one normally considered to be an enemy of the US) and there be subjected legally to extreme and innovative interrogation methods, until you die.

      It is the American Way remember.

      ---

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 13 Jan 2015 @ 12:07pm

        Re: Re: Interesting to reflect on this and the PATRIOT Act

        I believe that clear, logical thinking of that nature could get you listed as a probable Terrorist, subject legally to extraordinary rendition to a prison in a foreign country (one normally considered to be an enemy of the US) and there be subjected legally to extreme and innovative interrogation methods, until you die.

        While unlikely, lest anyone think this a fevered paranoid rambling, the NDAA permits the military to arrest US citizens within the US on suspicion of terrorism with only executive authority, and IIRC hold them indefinitely without bringing charges.

        reply to this | link to this | view in chronology ]

        • icon
          GEMont (profile), 13 Jan 2015 @ 1:54pm

          Re: Re: Re: Interesting to reflect on this and the PATRIOT Act

          Highly unlikely indeed.

          Fewer than 1% of Americans will ever face extraordinary rendition, or be tortured by the USG or its overseas affiliates.

          It is however, an absolute reality, and one hell of threat to any would-be dissidents who might speak out of turn or try to expose the people in power for what they really are.

          As I said:

          "It is the American Way remember."

          And it is.

          Not the America any of us outside the halls of power can recognise certainly, but it is the America that was built by the billionaires and their minions who today masquerade as "leaders", while We The People were busy dreaming the American Dream and trying to pay off the Death Gamble on their house.

          ---

          reply to this | link to this | view in chronology ]

  • icon
    Groaker (profile), 12 Jan 2015 @ 10:54am

    Pillow talk is one of the basic, standard, and most productive methods of espionage. That Betrayus should fall for this, even with a presumed friendly, demonstrates his incapacity for anything more complex than guarding a telephone pole in the middle of Alaska.

    And yes, Betrayus was his nickname to the troops, when he was an unknown low grade officer.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2015 @ 12:22pm

    Why stop with Petraeus ?

    Let's send ALL the CIA chiefs since 2000 to prison; charge the ones prior to 9/11 for misfeasance, the rest for war crimes.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Jan 2015 @ 4:00pm

    Slap on the wrist

    Giving the impression they take illegal laws very seriously in order to more easilly implement these illegal laws on the real targets.......pricelesss

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 13 Jan 2015 @ 11:44am

    Case Dismissed

    Oh poo. This one is too easy.

    Due entirely to the problem of negative public exposure of the absurd legal tool the crooks in the White Whore House finds exceptionally useful for punishing those who expose their criminal activities to the world - the Espionage Act - Eric Holder will NOT recommend felony charges be brought against David Petraeus.

    ---

    reply to this | link to this | view in chronology ]


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