"There are indeed consequences”: The case against Gen. David Petraeus

The Espionage Act is a bad law -- but here's why the former CIA director needs to be prosecuted for violating it

Published January 13, 2015 11:58AM (EST)

David H. Petraeus       (AP/Reed Saxon)
David H. Petraeus (AP/Reed Saxon)

On late Friday, news broke that the FBI and Justice Department prosecutors have recommended bringing felony charges against retired Gen. David H. Petraeus for leaking classified information to his mistress while he was director of the CIA. This was welcome news to numerous national security and intelligence whistle-blowers who have been prosecuted under the Espionage Act for allegedly mishandling classified information.

But before I get accused of supporting a bad law — the Espionage Act is indeed antiquated, heavy-handed and meant to go after spies, not whistle-blowers — it is important to understand that the reason many on the receiving end support this development is because they’ve been defending themselves in a brutal, one-sided war on whistle-blowers over the past five years. In reality, there are far better ways than an Espionage Act prosecution to deal with disclosures of classified information, the first being to put a stop to rampant over-classification, and implement meaningful and effective whistle-blower protections.

But 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.

Panetta revealed the name of the Navy SEAL unit ground commander who carried out the Osama bin Laden raid. He did so at a 2011 awards ceremony attended by the filmmaker of “Zero Dark Thirty,” a Hollywood movie that glorified the bin Laden operation and torture, and was widely criticized as agitprop the government helped make. Panetta also disclosed “secret” and “top secret” classified information on the same occasion. Petraeus gave his lover and biographer, Paula Broadwell, access to his CIA email account and other highly classified information, some of which was found on her computer.

For his part, Brennan is widely believed to have outed a Saudi double agent inside the Yemen branch of al-Qaida by leaking that the CIA foiled a plot to build a new, more advanced underwear bomb to blow up a U.S. airliner, something Attorney General Eric Holder called “if not the most serious, it is within the top two or three most serious leaks that I have ever seen.”

Additionally, two of the whistle-blowers who have the dubious distinction of being prosecuted for espionage are low-level agents from the CIA: Jeffrey Sterling, whose trial begins tomorrow, and former CIA counterterrorism operative John Kiriakou, the first CIA official to confirm that torture was an official CIA program and that we were engaged in waterboarding (also a client of Government Accountability Project, where I work). I wrote about his case for Salon here and here.

When John pleaded guilty to confirming the identity of a CIA officer involved in renditions, Petraeus made the self-righteous and hypocritical statement: “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.”

Of course, it is up to Attorney General Eric H. Holder Jr. to decide whether to seek an indictment of Petraeus, and I predict he will not. Not only does he lack the fortitude to do so, but there is no political will (in fact, quite the opposite), and these cases have had everything to do with politics and nothing to do with justice. High-ranking members of Congress said it is unfair to keep the matter hanging over Petraeus’ head. Sen. John McCain, R-Ariz., cried, “[We] can’t afford to have his voice silenced or curtailed by the shadow of a long-running, unresolved investigation marked by leaks from anonymous sources.” Sen. Dianne Feinstein, D-Calif., pleaded, “This man has suffered enough. . . He made a mistake. He lost his job because of it. I mean, how much do you want to punish somebody?”

No one from Congress would touch the case of former NSA senior executive Thomas A. Drake, whom GAP also represents. He never leaked classified information to the media — rather, he tried to reveal wasteful, abusive and unlawful surveillance programs — but was investigated for more than four years, had his security clearance suspended and lost his job, and endured baseless, anonymous smears leaked by the government. Even after Drake was exonerated and his once-alleged "co-conspirators" (William Binney, J. Kirk Wiebe and Ed Loomis) were granted immunity, neither Congress nor the Justice Department apologized for the Sword of Damocles that hung over their heads for so many years, or tried to restore their security clearances so that they could work in their given profession.

Bipartisan members of Congress shed no crocodile tears over another client, Edward J. Snowden, but instead condemned him with a steady drumbeat of vitriol because his revelations exposed their complicity with NSA’s illegal domestic surveillance programs. Because the government was unable to put Snowden in jail, it forced him into exile in Russia by revoking his passport while en route to Latin America — and then blamed him for “choosing” Russia. I predict the government’s case against him will remain open for at least a decade. Meanwhile, Petraeus has retained his security clearance and has spent his time teaching at Harvard, making lucrative speeches, advising the White House on the Islamic State, and being a partner in one of the world’s biggest private-equity firms, KKR.

Within two days of the news that Petraeus could face felony charges — ironically, itself a leak from “officials” who requested anonymity because they were not authorized to discuss it — Holder blanketed the Sunday talk shows and cast some doubts on the reports of imminent prosecution. While the political establishment defended Petraeus, the Justice Department quietly readied the trial of CIA whistle-blower Sterling, set to begin today.

Whatever machinations the government’s “accountability for Petraeus” campaign takes, it is a hypocritical certainty that he will receive a significantly lighter punishment than the whistle-blowers. He already has.

By Jesselyn Radack

Jesselyn Radack represents Edward Snowden and a dozen other individuals investigated or charged under the Espionage Act. She heads the Whistleblower & Source Protection Program (WHISPeR) at ExposeFacts. As national security & human rights director of WHISPeR, her work focuses on the issues of secrecy, surveillance, torture and drones.

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Cia Criminal Justice David Petraeus Eric Holder Fbi Justice Justice System Leak Prosecution