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


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  • icon
    radix (profile), 24 Apr 2015 @ 10:46am

    14th Amendment

    I would love to hear this and other similar "prosecutorial discretion" decisions defended in light of the text of the 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.

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

    • identicon
      Anonymous Coward, 24 Apr 2015 @ 2:06pm

      Re: 14th Amendment

      You're talking about the US Constitution? They wipe their asses with that.

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

    • icon
      tqk (profile), 26 Apr 2015 @ 9:12am

      Re: 14th Amendment

      Well said, however I'd suggest this edit:
      ... but when one class of citizen is threatened with treason charges and another is given probation for far more damnable actions ...

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

  • icon
    Spaceman Spiff (profile), 24 Apr 2015 @ 10:55am

    Dept. of Hypocrisy?

    I'd like to know who is in charge of the US government's department of hypocrisy department. They must be the person with the biggest paycheck around! Too bad Manning wasn't a general, otherwise (s)he would be sitting on a beach sipping pina coladas right now, instead of spending the next 35 years in stir!

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

    • icon
      James Burkhardt (profile), 24 Apr 2015 @ 11:05am

      Re: Dept. of Hypocrisy?

      Hey the department of redundancy department wants its gag back!

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

    • icon
      James Burkhardt (profile), 24 Apr 2015 @ 11:05am

      Re: Dept. of Hypocrisy?

      Hey the department of redundancy department wants its gag back!

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

    • identicon
      Zonker, 24 Apr 2015 @ 2:59pm

      Re: Dept. of Hypocrisy?

      The US Dept of Hypocrisy understands your concerns and will work hard to address the issue of harshly punishing whistleblowers while at the same time granting leniency to whistleblowers. Our goal is to ensure that all people are treated equally with different penalties for the same crime depending on our whims. We hope you all continue to do as we say as long as you don't do what we do.

      Sincerely Dishonest,
      US Dept of Hypocrisy

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

  • identicon
    David, 24 Apr 2015 @ 11:01am

    But Petraeus did not try to change the government

    He merely breached state secrets in order to get laid and embellish his biography.

    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.

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

    • icon
      tqk (profile), 26 Apr 2015 @ 9:22am

      Re: But Petraeus did not try to change the government

      He merely breached state secrets in order to get laid and embellish his biography.

      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?

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

  • identicon
    Anonymous Coward, 24 Apr 2015 @ 11:10am

    I agree, just one more moment for the pile of shameful moments in US history.

    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.

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

  • identicon
    Anonymous Coward, 24 Apr 2015 @ 11:12am

    Silly boy, punishment is for the criminals we DON'T like.

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

  • identicon
    Anonymous Coward, 24 Apr 2015 @ 11:39am

    it's not just the leniency of the punishment, it's also not just about the fact that he leaked it, it's surely the fact of the position he held within the USA security forces. his position was very high, the information he was prithee to was extremely high-level and releasing (leaking) that information was bordering on treason, if anyone was. to let him off the hook like this while locking up Chelsea Manning and wanting to lock up Edward Snowden for, basically, life is a piss take. more than anything it shows how the supposed 'DoJ' works against the very people it is supposed to but for the very people who do worse deeds! no ne deserves the sentence that Manning and others have been given, regardless of what they have done because they did it not to harm the US against other nations but to bring out the hypocrisy of what was happening, ie, the USA accusing the world of spying on it, bringing in sanctions whilst all the time was behaving worse! the worrying thing here is the way the prosecution lawyers want to get the hardest and longest of sentences, just to gain more 'brownie points'. that is disgraceful!!

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

    • icon
      Ben (profile), 24 Apr 2015 @ 12:04pm

      Re:

      I certainly feel they should have hit him with the harshest penalties available -- fully expecting him to then get a pardon before they are applied. At least then the hypocrisy would be acknowledged and no precedent in law for wrist-slap vs wrist-cutoff would have been set.

      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 :-).

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

      • identicon
        David, 24 Apr 2015 @ 2:14pm

        Re: Re:

        I certainly feel they should have hit him with the harshest penalties available

        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.

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

  • identicon
    Anonymous Coward, 24 Apr 2015 @ 2:40pm

    it's a bribe not a fine.

    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

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

  • icon
    Uriel-238 (profile), 24 Apr 2015 @ 6:16pm

    I'm pretty sure they kust apply the CFAA to whistleblowers to make an example out of them.

    They can't criminalize whistleblowing and still say they oppose punishing whistleblowers, so they use the flimsy CFAA to crush them like the pesty vermin they are.

    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.

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

  • identicon
    FM Hilton, 24 Apr 2015 @ 6:45pm

    Hypocrisy? How about reality?

    If anyone (including the guys in charge of prosecuting this case) were really surprised by the plea deal, here is a littler reminder:

    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.

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

  • identicon
    Mr Big Content, 25 Apr 2015 @ 12:06am

    Your Confusing A Loyal Patriot With Terrorist Sympathizers

    Its not fair to compare Aples with Oranges. Petreaus never gave information TO THE GENERAL PUBLIC, like those other Traitors did. He only gave it to someone who's loyalty is Beyond Question.

    Its leaking information TO THE PUBLIC that we need to guard against. Because THATS WERE OUR ENEMIES ARE.

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

    • icon
      Jay (profile), 25 Apr 2015 @ 2:21am

      Re: Your Confusing A Loyal Patriot With Terrorist Sympathizers

      Petreaus did leak state secrets to a person who had neither the security clearance nor the need to know. This is the action of a traitor. He should have been tried for treason If he was loyal beyond question as you state, he would never have done these acts. Our enemies are not the public, it is becoming more and more clear that our enemies are the DOJ, the 3 letter spy organizations and the Administration in general.

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

    • identicon
      AnonyBabs, 27 Apr 2015 @ 9:16am

      Re: Your Confusing A Loyal Patriot With Terrorist Sympathizers

      I thank you for the hearty chuckle. You were, actually, surprisingly correct in your last statement, in that the US government does indeed appear to view the US public as its enemy.

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

  • identicon
    Anonymous Coward, 25 Apr 2015 @ 6:07am

    Precedent

    Yeah, but the guys who prosecuted Petraeus, and all the legislators and other gov't weenies, who refrained from raising massive hue and cry "re" the case, can actually conceive of themselves being led around by their wallets and their dicks and getting into this kind of trouble. They can't imagine themselves committing the actually patriotic blowing of whistles. Precedent matters when you can relate to a "crime."

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

  • identicon
    Anonymous Coward, 25 Apr 2015 @ 6:37am

    Then again David PHYSICALLY knows where this (and the previous) administrations corpses are buried.

    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.

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

  • identicon
    Anonymous Coward, 25 Apr 2015 @ 9:59am

    The Dirt

    As CIA director, Petraeus was in a position to gather plenty of dirt on plenty of government officials (a la Hoover). They're probably scared shitless of him.

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

  • icon
    tqk (profile), 26 Apr 2015 @ 8:41am

    Justice? No, "Just us, and our friends and cronies."

    As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine.

    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.
    "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."

    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.

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

    • icon
      Uriel-238 (profile), 26 Apr 2015 @ 10:38am

      Re: Justice? No, "Just us, and our friends and cronies."

      I think the problem is that government serves some necessary functions, and we are tired, tired, tired of...

      ~ 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.

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

      • icon
        tqk (profile), 26 Apr 2015 @ 11:19am

        Re: Re: Justice? No, "Just us, and our friends and cronies."

        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.

        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.

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

        • identicon
          Pragmatic, 27 Apr 2015 @ 6:31am

          Re: Re: Re: Justice? No, "Just us, and our friends and cronies."

          LOL! You're funny. How would you STOP these entities from screwing the public?

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

          • icon
            tqk (profile), 27 Apr 2015 @ 11:36am

            Re: Re: Re: Re: Justice? No, "Just us, and our friends and cronies."

            By ensuring it would be impossible for them to get a legislated monopoly, of course. Competition is what keeps the market honest.

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

  • icon
    Uriel-238 (profile), 26 Apr 2015 @ 3:48pm

    Privatizing large scale utilities doesn't chainge their large-government prerequisite.

    So far, as weve seen with cable, internet service and telecommunications, the problems with large industrial utilities and services don't go away when they are privatized. You still need regulatory oversight. You still need a large organized population which requires the a consistent, sustained standards for law, justice and enforcement in order for such utilities to be reasonably priced and profitable.

    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.

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

    • icon
      Uriel-238 (profile), 26 Apr 2015 @ 3:57pm

      ugh. Mobile keyboard

      ...ergo gross typos.

      I hang my tablet in shame.

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

    • icon
      tqk (profile), 26 Apr 2015 @ 5:41pm

      Re: Privatizing large scale utilities doesn't chainge their large-government prerequisite.

      So far, as weve seen with cable, internet service and telecommunications, the problems with large industrial utilities and services don't go away when they are privatized. You still need regulatory oversight.

      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.

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

  • icon
    Uriel-238 (profile), 26 Apr 2015 @ 6:14pm

    Correction:

    We have agencies that are responsible for regulatory oversight and yet they fail, partially due to regulatory capture.

    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.

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

    • identicon
      Pragmatic, 27 Apr 2015 @ 6:34am

      Re: Correction:

      That's usually the result of a lack of accountability. People need to stop supporting teams on principle and take responsibility for ensuring the success of the democratic process. Otherwise, we might as well go back to having kings.

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


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