Last week’s sentencing of former Central Intelligence Agency Director and retired four-star general David Petraeus demonstrated a glaring disparity in federal leak prosecutions. At a federal courthouse in Charlotte, North Carolina, Judge David Kessler sentenced Petraeus to two years of probation and ordered him to pay a fine of $100,000 for leaking highly-classified information to his biographer and mistress. It was far different from the government’s prosecution of low-level leakers and whistleblowers who received prison terms of 13 months and more.
FBI and DoJ investigators recommended filing felony charges against Petraeus. Instead, DoJ under Attorney General Eric Holder allowed Petraeus to plead guilty to a single misdemeanor charge of “Unauthorized removal and retention of classified documents or material.” Unlike whistleblowers John Kiriakou, Thomas Drake, Daniel Ellsberg, Bradley Manning and Jeffrey Sterling, Petraeus was not charged with violating the Espionage Act. Under the plea agreement with Petraeus, DoJ proposed a sentence of two years probation and a $40,000 fine. The maximum penalty for the charge is one year imprisonment, a $100,000 fine or both, and up to five years probation.
Even a $100,000 fine was light punishment for Petraeus–about 75% of the fee he charges for a single speech. His attorney fees from Williams & Connolly are likely much more substantial. But, even that expense is manageable for someone in the highly lucrative position that Petraeus currently holds.
Whereas the Obama administration demands draconian punishments for whistleblowers, its relationship with Petraeus and other high-level leakers has been noticeably cozy. Since last summer, Petraeus has advised the National Security Council on Iraq and the Islamic State. “Inside the courtroom, Petraeus shook hands with Rose and the other prosecutors,” reported the Charlotte Observer.
The author queried whistleblowers to learn if DoJ attorneys shook hands with any of them in either civil or criminal cases related to their whistleblowing. So far, none have reported having that experience. Two whistleblowers specifically recalled that DoJ attorneys would not even look at them. Clearly, handshakes with DoJ attorneys are not routine.
WSOC-TV, in Charlotte, covered Petraeus’ sentencing hearing and published the following update via Twitter.
Petraeus attorney says sentence that would include incarceration would be “unprecedented and a deviation from the norm.” #PetraeusSentencing
— WSOCTV (@wsoctv) April 23, 2015
As previously noted, the norm has been for DoJ to throw the book at individuals who disclose classified information as an act of whistleblowing. Clearly, defense attorneys were referring to some other “norm.” Almost certainly, they were referring to non-whistleblowers like Leon Panetta, John Brennan and John Rizzo, high-ranking officials with powerful connections, who received light punishments or none at all. Petraeus’ attorneys openly referenced such connections in his defense, per another tweet by WSOC-TV.
So privileged are Petraeus and his defenders that details of the letters, including the names of those who sent them, are under seal—another extraordinary deviation from procedures that apply to non-elites.
Nine news organizations jointly filed suit on April 27 to have the court release the letters submitted on Petraeus behalf.
Here, Defendant’s Sentencing Memorandum was filed under seal, and the sentencing letters sealed or otherwise withheld from the public, without any sealing order having been entered, and without the Court having conducted the analysis required by the First Amendment and common law. Thus, to date, neither the Court nor the parties have identified any interest that would justify keeping these documents shielded from public view. Given the public’s constitutional right of access to the Sentencing Memorandum and the sentencing letters, absent judicial findings that their sealing is “essential” to sere a “compelling government interest,” the seal cannot be maintained.” …. “[T]he public has a heightened interest in access to the sentencing letters because they were reportedly written by current and former high-level public officials, which weighs heavily in favor of public disclosure. See United States v. Gott, 322 F.Supp.2d230,251 (E.D.N.Y.2004( (stating that “[l[etters received by public officials seeking to use their offices to impact a sentence will invariably be disclosed”).https://www.documentcloud.org/documents/2068202-active-66629273-1-memorandum-in-support-of.html
In widely publicized interviews and news releases, three US Senators on the Senate Intelligence Committee argued against prosecuting Petraeus, suggesting that his military service and brilliance justified leniency. Sen. Diane Feinstein said of Petraeus, “People aren’t perfect. He made a mistake. He lost his job as CIA director because of it. I mean, how much do you want to punish somebody?”
The high-level support for Petraeus contrasts sharply with the treatment of torture whistleblower John Kiriakou. Kiriakou admits to confirming the name of a covert CIA officer to a reporter who already had the officer’s name, thinking the officer had retired. In contrast, Petraeus reportedly delivered eight notebooks with “highly classified information” to his lover/biographer Paula Broadwell, then a major in the Army reserves.
The FBI searched Petraeus’s house in April 2013 and found the books in an unlocked drawer in his study. The books contained top-secret information that the Justice Department said could cause “exceptionally grave damage” to national security if disclosed. [Washington Post]
The books included “the identities of covert officers, details about US intelligence capabilities, code words and accounts of his meetings with President Barack Obama.” Arguably, Kiriakou was more cautious in his handling of government secrets than Petraeus.
Kiriakou, also, served his country with distinction. The former CIA case officer earned “12 exceptional performance awards, the Meritorious Honor Award, [and] the Counterterrorism Service Medal,” but was not allowed to provide that information to the court. Unlike Petraeus, the father of two grown children, Kiriakou was the father of three children under age eight who needed his emotional and financial support. If there is sympathy for Petraeus, why not also for Kiriakou?
The Justice Department indicted Kiriakou on three counts of espionage, one count of violating the Intelligence Identities Protection Act and one count of making a false statement. Rather than risk 45 years imprisonment on those charges, Kiriakou accepted a plea deal of 30 months in prison. Petraeus, then CIA Director, commented on Kiriakou’s plea agreement, saying, “Oaths do matter and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.”
As Petraeus’ criminal case was closing, a civil lawsuit referencing some of the [same] events was heating up. Petraeus’ woes began when socialite Jill Kelly, a friend of the Petraeus family, complained to Frederick Humphries, an acquaintance with the FBI, that Paula Broadwell, Petraeus’ mistress, was sending her harassing emails. That launched an investigation that uncovered the affair and breeches of information security. Humphries’ testified that a supervisor told him, “No one wants to be involved in a case like this during an election cycle.” Petraeus resigned as CIA Director three days after the 2012 election, “after which senior military and law enforcement officials leaked Kelley’s name to the media.”
In a March 20 deposition for the civil suit, Agent Humphries was asked if he believed that Broadwell’s actions “potentially compromised the security of high level military intelligence personnel and information,” to which he replied, “Yes.”
The harshest punishments of whistleblowers have resulted from prosecution under the Espionage Act. The law was created during World War I to prosecute people for espionage and sabotage. The Nixon administration was the first to use the Espionage Act against a whistleblower, indicting Daniel Ellsberg for disclosing the “Pentagon Papers.” In a recent interview with Thom Hartmann, Ellsberg observed, “The President is using the Espionage Act against ten indictees as if it were an official secrets act–the British kind–that criminalizes any and all release of classified information. That’s always been regarded as unconstitutional, up to now, a violation of our First Amendment.”
Contacted for this article, Kiriakou commented, “I don’t think General Petraeus should have been prosecuted under the Espionage Act, just as I don’t think I should have been prosecuted under the Espionage Act. Yet, only one of us was. Both Petraeus and I disclosed undercover identities (or confirmed one in my case) that were never published. I spent two years in prison; he gets two years probation.”
The disparities evident in leak prosecutions leave little doubt that DoJ prosecutions of federal whistleblowers are unfairly harsh and therefore retaliatory. Both the White House and Congress have said publicly that whistleblowers deserve protection from retaliation. That is empty rhetoric, however, as long as neither entity uses its authority to rein in abusive prosecutions under the Espionage Act.