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No, Supporters of Whistleblowers & Openness in Government Should Not Defend David Petraeus

David Petraeus (left)

David Petraeus is not the next victim in President Barack Obama’s crackdown on whistleblowers. He is not someone that should be defended like previous leakers, who have been prosecuted aggressively and charged with violating the Espionage Act. People opposed to excessive secrecy by the United States government do not have an obligation to oppose prosecution of him either.

What the former CIA director allegedly did was leak (or direct subordinates to leak) classified information to his biographer and lover, Paula Broadwell. In effect, he is believed to have bypassed the prepublication review process at the CIA and leaked secrets to his mistress to help her write a book about him, All In: The Education of General David Petraeus. This alleged leak can only be said to have been for his own self-aggrandizement with little to no public benefit whatsoever.

Now, there are writers who grasp the unjust nature of Espionage Act prosecutions by the Justice Department but are hesitant to support an indictment against Petraeus.

If FBI prosecutors and Justice Department prosecutors recommended charges to Attorney General Eric Holder, it should be a simple decision. Holder should indict him. That is what would happen in the majority of other cases.

There should be equal application of the law, even if one opposes the way the Espionage Act has been used. Petraeus should not benefit from the government showing discretion when others have not been afforded the same leniency.

POLITICO senior media writer Jack Shafer argues:

…Government officials leak classified information day in and day out, sometimes as “whistle-blowers,” sometimes to float a policy balloon, sometimes to undermine their bureaucratic opponents, sometimes by mistake, and sometimes (I’m only guessing here) to placate the mistress who is writing an adulatory biography. Upwards of 1.4 million people hold “top secret” clearances, and the secrecy machine creates tens of millions of new classified documents each year. That sort of profligacy makes a mockery of the government’s definition of “top secret” as information that “could be expected to cause exceptionally grave damage to the national security”? As Sen. Daniel Patrick Moynihan concluded as the last century closed, such over-classification tends to leave us less safe, not more, by slowing the information flow between policy makers. If neither justice nor national security are being served by pressuring the general, prosecutors should back off… [emphasis added]

The most glaring issue with Shafer’s argument is that it neglects the words of Petraeus himself, who was proud when the government convinced former CIA officer John Kiriakou to plead guilty to violating the Intelligence Identities Protection Act (IIPA).

…This case yielded the first IIPA successful prosecution in 27 years, and it marks an important victory for our Agency, for our Intelligence Community, and for our country. 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…

Kiriakou confirmed the name of an agent, who the government claimed was still undercover, to a reporter. He also was charged with violating the Espionage Act and lying to the CIA’s Publications Review Board when working on his book, The Reluctant Spy. He pled guilty to ensure that he was only sentenced to prison for a maximum of 30 months and has been in jail at a federal correctional facility in Loretto, Pennyslvania, since February 28, 2013.

What Kiriakou, who had become a critic of the CIA’s use of torture, was nailed for doing could be considered a mistake. Certainly, he views it as a mistake now. So, where was the Justice Department’s discretion in his case?

But the counter to Shafer’s argument is not merely that Petraeus should go to jail because Kiriakou or others convicted of leak offenses went to jail. It is the nature of Petraeus’ leak itself, which invites prosecution.

NSA whistleblower Thomas Drake was prosecuted for retaining classified information in violation of the Espionage Act. He went to a reporter and revealed wasted and fraud related to the NSA’s Trailblazer program. Former FBI linguist Shamai Leibowitz uncovered documents he claims showed the FBI had committed “illegal and unconstitutional acts” and showed those documents to a journalist. He pled guilty to an Espionage Act violation, went to prison for 20 months and cannot even talk about what was in the documents.

Former State Department employee Stephen Kim took a plea deal and was sentenced to 13 months in prison for disclosing information to a reporter that US intelligence officials knew North Korea would react to United Nations sanctions with more nuclear testing. Former CIA officer Jeffrey Sterling is on trial right now for allegedly disclosing information on a botched CIA operation in Iran where officers deployed a former Russian scientist to provide flawed nuclear blueprints. Sterling faces seven counts of violating the Espionage Act and three other felony charges.

Military whistleblower Chelsea Manning disclosed documents to WikiLeaks, some of which revealed details related to assassination squads in Afghanistan and torture, abuse and threatened executions of Iraqi detainees. She also disclosed the “Collateral Murder” video that showed two Reuters journalists being gunned down in Baghdad along with other atrocious military conduct. NSA whistleblower Edward Snowden, who Shafer has defended, revealed various programs showing the US government’s “aggressive spying on its own citizens” (as well as a number of populations around the world).

Each of the above mentioned leaks were committed to inform citizens and, in some of the cases, make it possible for citizens to hold their government accountable for conduct they were keeping secret.

In contrast, let’s review the description for All In, which appears on Amazon.

The book chronicles the “experiences” of an American general, “as they were brought to bear in the terrible crucible of war.” It features “hundreds of hours of exclusive interviews with Petraeus and his top officers to tell the inside story” of his “development and leadership in war.” It highlights how he put his “defining idea”—counterinsurgency—to the test in Afghanistan when it was needed the most. It goes “behind the scenes of negotiations during policy reviews of the war in Afghanistan in Congress, the Pentagon and the White House.” It shows how he “profoundly shaped” the US military and “left an indelible mark on its rising leaders.”

None of the above, except for maybe the negotiations during policy reviews, have any public interest value. Plus, if those are the records he leaked to Broadwell, then their value is greatly undermined by the fact that they were woven into a book meant to help the world understand the extraordinary ego of a four-star general and the glory, which he has showered upon the men and women of America’s armed forces.

Shafer adds, “But it’s worth asking how secret were the documents in the Petraeus case and what, if any, damage to national security did their leak cause? Did we experience a genuine security lapse in the Petraeus case, or are we merely relearning the lesson that Moynihan taught, that the bureaucracy, determined to cover its ass in advance, classifies way too much material?”

None of the above. Petraeus was having an affair and he allegedly leaked to his lover for his own personal benefit.

Jesselyn Radack, director of the National Security & Human Rights division at the Government Accountability Project who has represented Drake, Kiriakou and Snowden, wrote for Salon, “The fact that the target of the recommended leak charges is Petraeus bears particular significance for a number of reasons, not the least of which is that the three most recent directors of the CIA — Leon E. Panetta, Petraeus and John O. Brennan — have all leaked classified information casually, regularly and with impunity.”

Impunity matters to whistleblowers, who have had their lives severely disrupted or outright destroyed by Justice Department prosecutions. It also matters to those who seek reforms to improve the chilly climate in Washington for whistleblowers. And it matters that an agency director can leak for personal benefit and not fear prosecution but an analyst cannot expose alleged wrongdoing or misconduct to a reporter without being afraid of punishment.

It is true, as Shafer suggests. “Government officials leak classified information day in and day out.” However, the Obama administration has chosen a handful of individuals and made an example out of them. Should not the same be done to some of these high-ranking officials?

Petraeus should be prosecuted to send a message that leaks for personal gain are wrong. And, when elites feel disgusted or scoff at Petraeus’ prosecution (because they like to fawn over him), they can join the efforts of whistleblower advocates to end the use of the Espionage Act in leak prosecutions. They can help deal with the issue of rampant over-classification and push for changes in how the government goes about punishing people to “protect” the sanctity of American secrets.

Photo by North Dakota National Guard and in the public domain.

CommunityFDL Main BlogThe Dissenter

No, Supporters of Whistleblowers & Openness in Government Should Not Defend David Petraeus

David Petraeus (left)

David Petraeus is not the next victim in President Barack Obama’s crackdown on leaks. He is not someone that should be defended like previous whistleblowers, who have been prosecuted aggressively and charged with violating the Espionage Act. People opposed to excessive secrecy by the United States government do not have an obligation to oppose prosecution of him either.

What the former CIA director allegedly did was leak (or direct subordinates to leak) classified information to his biographer and lover, Paula Broadwell. In effect, he is believed to have bypassed the prepublication review process at the CIA and leaked secrets to his mistress to help her write a book about him, All In: The Education of General David Petraeus. This alleged leak can only be said to have been for his own self-aggrandizement with little to no public benefit whatsoever.

Now, there are writers who grasp the unjust nature of Espionage Act prosecutions by the Justice Department but are hesitant to support an indictment against Petraeus.

If FBI prosecutors and Justice Department prosecutors recommended charges to Attorney General Eric Holder, it should be a simple decision. Holder should indict him. That is what would happen in the majority of other cases. (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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