When former CIA director David Petraeus requested prosecutors remove reference to a leak case against former CIA officer John Kiriakou from his plea deal, prosecutors astoundingly followed his wishes.
“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,” Petraeus declared in a statement to the CIA workforce after Kiriakou pled guilty to violating the Intelligence Identities Protection Act (IIPA) in 2013.
This statement shows Petraeus understood the law when he improperly handled and disclosed classified information, including “Black Books” containing the identities of covert officers, war strategy, intelligence capabilities and notes from his discussions with President Barack Obama. He still provided his biographer, Paula Broadwell, access to these books after she asked to use them as source material.
But, according to the Washington Post, in February 2015, Petraeus’ lawyers requested the statement Petraeus made about Kiriakou’s case not appear in the statement of facts in the plea deal.
“In the statement of facts that would accompany the plea agreement, prosecutors also said they would want to reference a Petraeus message sent to the CIA workforce in 2012 after John Kiriakou, a former agency officer, was convicted of leaking classified information,” the Post reported. A person involved with discussions about the plea deal told the Post the Kiriakou reference was “off the table.”
The issue over the embarrassing Kiriakou reference came up during a meeting with James Melendres, a prosecutor with the Justice Department’s National Security Division. He proposed a deal. Petraeus would plead guilty to lying to FBI agents and mishandling classified information. Petraeus’ lawyer objected to the lying charge and that became a “non-starter.”
The plea deal Petraeus agreed to in March 2015 involved only one charge—the unauthorized removal and retention of classified material. He received a sentence of probation for two years and a $40,000 fine.
“It’s weird on many levels that [prosecutors are] realizing the hypocrisy by admitting they’re going to keep something out of a statement of facts wherein Petraeus acknowledges he realizes leaking classified information is a crime,” Jesselyn Radack, a national security & human rights lawyer for Expose Facts who has represented numerous whistleblower clients, including Kiriakou. “It’s pretty striking that they would deliberately omit that because it makes Petraeus look bad and looks embarrassing.”
The Post report also shows how willing prosecutors were to acquiesce to the demands of Petraeus to remain out of prison and not be charged with any felony that would result in the loss of a pension.
“I’ve represented national security and intelligence officials who revealed wrongdoing and faced the rest of their lives in jail. The fact that the government indulged Petraeus’ wish to remain out of jail and receive his pension is unconscionable,” Radack added.
In an interview last year, Kiriakou stated, “David Petraeus said some very nasty things about me on the day that I took my guilty plea, that oaths mean something to us and that it was a great day for the intelligence community. I think he owes me an apology frankly because he did the exact same thing that I did.”
The report from the Post clearly demonstrates Petraeus was aware of the consequences he faced for his actions. He wielded his status in the power elite to strong-arm prosecutors into avoiding a high-profile trial for actions arguably worse than what Kiriakou pled guilty to doing.
Kiriakou pled guilty to confirming the name of a covert agent to a reporter, who already had the name, and the name was never published. For that, he received a sentence of 30 months in prison. He initially was to be sent to a minimum security work camp at a federal facility in Loretto, Pennsylvania, but the Bureau of Prisons violated an agreement and he served his sentence in the low security facility at Loretto.
Radack further commented on the fact that former Attorney General Eric Holder said a felony conviction for Petraeus would have been “very, very, problematic.” She suggested this is “less an explanation about Petraeus and more an explanation about the lack of prosecutions—or even investigations—for most senior administration officials who leak classified information to the press on a daily basis. If Petraeus was convicted of felony, what about everybody else?”
Prosecutors are fond of insisting, as then-U.S. Attorney Neil MacBride did, that a prison sentence is required to remind “those who are entrusted with classified information that damage done by leaks is not speculative or hypothetical—it is actual and substantial, and the Justice Department will hold them accountable.”
In a filing supporting a 30-month sentence for Kiriakou, MacBride and other attorneys maintained Kiriakou had signed “multiple non-disclosure agreements acknowledging that unauthorized disclosures of classified information could cause irreparable injury to the United States or be used to advantage by a foreign nation.” They also made the unfounded allegation that Kiriakou was “engaged in a concerted campaign to raise his media profile, principally to advance his private pecuniary interests through, among other things, consulting engagements, publication of editorials, more remunerative and secure employment, and sales of his forthcoming book.”
If it were true that Kiriakou was using unauthorized disclosures to build up his profile, this is no different from what Petraeus did when he cozied up to his biographer and provided her access to materials. Any official who had chosen to reveal such information to challenge U.S. war policies would have been aggressively prosecuted for similar disclosures to journalists.
On one hand, the actions of prosecutors make it abundantly transparent that there is a double standard for leaks when it comes to government officials. Prosecutors may strive for consistency, yet it is ultimately futile. The Justice Department will submit to the power of someone with the stature of Petraeus and abandon full-blooded efforts to hold such a high-ranking official accountable.
But what unfolded also makes it apparent that prosecutors can come to some agreement with a person guilty of unauthorized disclosures, especially when there was no damage done to national security. Prosecutors and the accused’s lawyers can come to an agreement that holds the person responsible without being overzealous.
“Petraeus’ case shows that you can hold somebody responsible for revealing classified information without sending them to jail, without forfeiting their pension, and without ruining their life and career,” Radack declared.
This is what makes what the Obama administration did so outrageous. There is such an unequal application of the law when prosecuting officials for leaks of classified information. In fact, Petraeus’ own lawyers planned to use this as part of his defense.
Petraeus’ lawyers “brought up an array of classified material that had appeared in other books and articles, including those written by cabinet members, and had not led to any prosecutions. That showed, they said, that some of the material Broadwell had obtained from Petraeus was already in the public domain,” according to the Post.
For whistleblowers who allege wrongdoing, there is no discretion from prosecutors but only overzealousness. On the other hand, when faced with esteemed military or intelligence officials, all standards of prosecution go by the wayside and it is the prosecutors who have to beg the accused criminal to allow them to hold them responsible in a manner that may cause them a small amount of embarrassment.