Petraeus, Snowden, and the Department of Two-Tiered Justice

The sweetheart plea deal that former CIA director Gen. David Petraeus received yesterday was supposed to mollify the criticism of people who say that in President Barack Obama’s draconian war on whistleblowers, senior-level government officials are never prosecuted for leaking classified information. Now the former army general’s punishment has been revealed and the truth has become clear: The United States has a two-tier justice system when it comes to classified information.

Petraeus pleaded guilty and will likely receive a $40,000 fine and two years of probation. This has added insult to injury for people like NSA whistleblowers Edward Snowden and Thomas Drake; CIA whistleblowers John Kiriakou and Jeffrey Sterling; State Department whistleblower Stephen Kim; and Army whistleblower Chelsea Manning. (I represent Snowden, Drake, and Kiriakou, in addition to other non-public whistleblowers who are currently under investigation or prosecution by the Justice Department for alleged unauthorized disclosures of allegedly classified information.) While these leakers and whistleblowers revealed far less sensitive information, they face much stiffer punishment.

I’m not the only person who realizes that something is wrong here. As Peter Maass wrote in the Intercept after news of Petraeus’s plea broke, “senior officials are slapped on the wrist for serious violations while lesser officials are harshly prosecuted for relatively minor infractions.” These ruinous discrepancies are not insignificant. Drake faced spending the rest of his life in jail for retaining — not even disclosing — unclassified information about wasteful NSA spending. The charges against him were dropped in May 2011 (like Petraeus, Drake pleaded guilty to a minor misdemeanor). But that doesn’t mean the legal campaign against him didn’t have a chance to ruin his life: Drake temporarily separated from his wife and spent his entire life savings and retirement defending himself. Today he works as a wage-grade employee at an Apple Store.

Espionage charges were also dropped against John Kiriakou, but only after he pleaded guilty under the equally draconian and rarely-used Intelligence Identities Protection Act for confirming to journalists the name of an undercover CIA agent involved in the Rendition, Detention and Interrogation Program. Kiriakou spent two years in jail. He lost his job and pension, owes the private attorneys he hired upwards of a million dollars, and is desperately trying to find a job while he serves out the remainder of his time under house arrest. His family had to move out of their house and go on welfare. His five children were deprived of their father.

Stephen Kim shared information from a classified State Department report on North Korea with a reporter. He and his wife are now divorced, and he is in jail for 13 months on an espionage conviction. Chelsea Manning is in jail for 35 years for sharing a trove of documents with the whistleblower website WikiLeaks. Sterling, who will be sentenced in April for revealing a botched CIA program in which the United States accidentally gave nuclear information to Iran, faces 40 to 100 years in prison. Edward Snowden is living in exile for pulling the curtain back on the NSA’s widespread and unaccountable surveillance programs.

Compare any of those cases to David Petraeus. Throughout his ordeal, Petraeus retained his security clearance. Even after accusations that he shared highly classified information on the war in Afghanistan with his mistress, he has spent his time teaching at Harvard, making lucrative speeches across the globe, pulling in a massive salary as a partner in one of the world’s biggest private-equity firms, KKR, and reportedly even advising the White House.

What makes the Petraeus case so shocking is that he was never even indicted — for anything. Moreover, he pleaded guilty not under the draconian Espionage Act — one of the most serious charges you can level against an American — but under 18 U.S. Code § 1924, which governs “Unauthorized Removal and Retention of Classified Documents or Materials.” That’s actually one of the dozens of laws that would have been far more appropriate to use on whistleblowers accused of mishandling classified information. Finally, Petraeus’s conduct was far more outrageous and potentially harmful to the United States than anything Snowden, Drake, Kiriakou, Manning, Kim, or Sterling allegedly or actually did.

Petraeus loaned “Black Books” to his mistress. According to a statement from the U.S. Attorney’s office they “contained classified information regarding the identities of [3] 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 of America.” In addition, they contained “national defense information, including Top Secret/SCI [Sensitive Compartmented Information] and code word information.” According to the court documents, Petraeus also admitted to making false statements to the FBI, another felony that most whistleblowers charged with espionage faced.

The Petraeus puff plea dovetailed with a statement by Snowden’s Russian lawyer, Anatoly Kucherena, that Snowden “wants to return back home” if he is assured that he would be treated fairly. Kucherena’s statement revealed nothing new, but rather echoed what Snowden has said in numerous interviews over the past year. He would love nothing more that to return to the United States, but not to face an unfair, heavy-handed, largely secret prosecution under the Espionage Act — a strict liability crime, against which he cannot mount a defense based on his good intentions. Now that the government has put forth a new model of how to deal appropriately with unauthorized disclosures, I suspect that Snowden would entertain returning to the United States for the kind of plea bargain that Petraeus received.

Too bad that kind of leniency is reserved for generals sharing information with their mistress-biographers — not normal Americans trying to expose government wrongdoing.