Justice demands equal treatment: Opposing view

Jesselyn Radack | USATODAY

In the abstract, the idea that Espionage Act prosecutions should be brought only if there is actual harm to the country is refreshing. In practicality, it indicates the glaring hypocrisy in the treatment of alleged leaks.

The Obama administration has used the Espionage Act to wage an unprecedented war on national security whistle-blowers. Only now that a high-level official is threatened has the Justice Department paused before using the ill-fitting law.

There is no reason Gen. Petraeus should receive special treatment when in all other cases the government has steadfastly (and successfully) resisted any requirement that it show harm to the U.S. for an Espionage Act charge.

In the case against CIA whistle-blower John Kiriakou, the government won a court ruling that whether Kiriakou intended to sell secrets for profit, or disclose unlawful government conduct, is irrelevant.

Even while arguing harm to the U.S. is legally irrelevant, in all Espionage Act cases against whistle-blowers, dating back to Pentagon Papers hero Daniel Ellsberg, the government has exaggerated and even manufactured claims of grave harm.

In the collapsed case against NSA whistle-blower Thomas Drake, the government claimed Drake harmed "soldiers on the field." In the case against Army whistle-blower Chelsea Manning, the government bellowed about harm to national security but could not produce a damage assessment.

The Espionage Act has been wielded only against lower-level officials who have exposed government ineptitude, incompetence or illegality, while senior officials who leak classified information on a daily basis get a pass, promotions and book deals.

The bipartisan crowd of Washington insiders calling for leniency for Petraeus is the same group calling for the harshest possible punishment for Edward Snowden, a whistle-blower whose revelations clearly served the public interest. No such claim can be made about Petraeus' alleged leaks to his biographer.

Whether or not the Espionage Act is the wisest law to use in these cases (I would say it is not), it is the government's weapon of choice, and justice demands equal treatment under the law.

Jesselyn Radack is a lawyer at the Government Accountability Project .