We can now add Vice President Mike Pence to the list of former presidents and vice presidents who have had classified information found in their homes. While there are marked differences between Donald Trump intentionally keeping classified documents at Mar-a-Lago, and refusing to cooperate with authorities, and Pence and Joe Biden's apparent discovery of classified documents that inadvertently ended up in their homes — and were returned voluntarily and promptly — the commonality between these cases and others involving high-level officials is the lack of serious punishment.
As attorneys who have represented dozens of whistleblowers and media sources who have been criminally investigated, prosecuted and imprisoned for allegedly retaining or leaking classified information, we know there is a two-tiered system of justice when it comes to mishandling classified information: one for high-level and well-connected government officials, and another for whistleblowers and media sources. Powerful officials get a slap on the wrist, usually in the form of administrative punishments or no punishment at all. Whistleblowers and media sources at best have their careers ruined, and at worst must serve prison time, like our client Daniel Hale, an Air Force intelligence analyst who served in Afghanistan.
The government publicly billed drone strikes as "precision, targeted killing." Hale disclosed that during one five-month period, more than 90 percent of those killed by airstrikes were not the intended targets. He is currently serving a 45-month prison sentence. Similarly, decorated military veteran and government intelligence contractor Reality Winner served a 63-month sentence for giving the press a single, accurate document about Russian hacking attempts. That is the longest civilian sentence ever imposed for a source who disclosed truthful information to the press. Winner's sentence was imposed even though special counsel Robert Mueller publicly disclosed nearly identical information in a different indictment a month before her sentencing.
It may be tempting to draw a line between retaining classified information and leaking it to the press, but the draconian law most often used to prosecute these cases (the World War I-era Espionage Act) makes no such distinction. Nor does it matter if a leaker disclosed information about illegal or unconstitutional government conduct, such as the U.S. torture program, secret mass domestic surveillance or war crimes. There is no public-interest defense. Whistleblowers and sources are professionally ruined, criminally prosecuted or imprisoned even in cases that involve no classified information, and even when the government agrees there has been no harm to national security.
Whistleblowers and sources can be professionally ruined, criminally prosecuted or imprisoned even in cases that involve no classified information, and when there has been no harm to national security.
The government threatened our client, NSA whistleblower Thomas Drake, with spending the rest of his natural life in prison for allegedly retaining classified information in his home. When it turned out none of the information found in Drake's home was actually classified, it took judgments in both the courtroom and the court of public opinion to keep him out of prison — not the Justice Department's concession of its gross overreach. CIA whistleblower Jeffrey Sterling was convicted of alleged disclosure of secrets based not on the substance of the classified information disclosed, but based on thin metadata documenting conversations between himself and a journalist. Sterling served a 42-month prison sentence. CIA whistleblower John Kiriakou, another client of ours, served a 30-month prison sentence because he was the first CIA agent to call waterboarding a form of "torture."
In the most famous such recent case, NSA whistleblower Edward Snowden has been forced into a life of exile because he cannot get a fair trial here in the United States. Snowden cannot argue at trial that his disclosures were in the public interest, even though former Attorney General Eric Holder agreed that Snowden had performed a "public service" when he disclosed the NSA's widespread and illegal mass surveillance to journalists. In Army whistleblower Chelsea Manning's case, the government's own damage assessment found that her disclosures did no significant harm to national security. Nonetheless, she was accused of "aiding the enemy" and her sentence was so extreme (35 years), that Barack Obama commuted it.
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Meanwhile, high-level officials who intentionally leak classified information for personal or political gain receive little or no punishment. While Hale, Winner, Drake, Sterling, Kiriakou and Manning all faced charges under the Espionage Act, former CIA Director David Petraeus received a sweetheart plea deal under a less serious misdemeanor law for leaking classified information to his biographer, with whom he was having an affair. Unlike the hard prison time served by whistleblowers, Petraeus was on probation for two years and paid a fine. Another former CIA director, Leon Panetta, has never been punished for leaking secrets to the filmmakers of "Zero Dark Thirty."
What this stark disparity in punishment should make clear is that the national security establishment is secretive, powerful and far too unaccountable, no matter which political party is in the White House. Nonetheless, surely the fact that the FBI needed to search both a former president's house and the current president's house for mishandled classified documents should prompt a close examination of the bloated and byzantine secrecy bureaucracy, an examination that has long been necessary for a system plagued by over-classification and a lack of oversight, as we have previously written.
Moreover, the Biden Justice Department's attempt to hold Trump accountable using this hopelessly broken classification system has led us down a destructive path of endless partisan fighting and both-sides-ism. Because the classification system and Espionage Act have been misused to punish media sources and chill investigative journalism by presidents from both political parties, the differences between Trump's actions and everyone else's will never resonate the way the Justice Department hopes.
What does already resonate with us, as free press and whistleblower advocates — and should alarm the public as well — is the way that senior officials and top brass can escape severe punishment, compared with the prison time served by whistleblowers and media sources whose only "crime" was to reveal information that exposed government ineptitude or wrongdoing, about which the public had a right to know. Unequal treatment under the law is not justice.
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