A Double Standard on Leaks? As Whistleblowers Jailed, Petraeus Escapes Prison and Advises White House

AARON MATÉ: With prosecutions of whistleblowers like Chelsea Manning, Edward Snowden, Thomas Drake, John Kiriakou and several others, the Obama administration is by far the most aggressive in history when it comes to punishing leaks. But is there a double standard when it comes to who is punished and who walks free?

That’s the question being raised after a lenient plea deal for David Petraeus, the retired four-star general and former head of the CIA. Unlike the others, Petraeus did not release information to expose perceived government wrongdoing. Instead, he gave classified material to his mistress, Paula Broadwell, who was also writing his biography. Petraeus let Broadwell access his CIA email account and other sensitive material, including the names of covert operatives in Afghanistan, war strategy, and quotes from White House meetings. Petraeus then lied to the FBI, telling investigators he never gave Broadwell any classified information.

After an investigation that raised eyebrows for its slow pace, the FBI and federal prosecutors recommended felony charges. But unlike other leakers, Petraeus was not indicted. Instead, earlier this month, he reached a plea deal, admitting to one count of unauthorized removal and retention of classified information. Prosecutors won’t seek prison time, but instead two years probation and a fine. His sentencing is next month. Meanwhile, after being forced to resign in 2012, Petraeus remains an administration insider, advising the White House on the war against ISIS.

AMY GOODMAN: On Monday, White House Press Secretary Josh Earnest defended the administration’s ongoing consultations with Petraeus.

PRESS SECRETARY JOSH EARNEST: He is, I think, legitimately regarded as an expert when it comes to the security situation in Iraq. So I think it’s—it makes a lot of sense for senior administration officials to, on occasion, consult him for advice.

REPORTER: And any particular security precautions that you take in this situation, given his legal entanglements?

PRESS SECRETARY JOSH EARNEST: Not that I’m aware of.

AMY GOODMAN: As General David Petraeus avoids jail time and advises the White House, a lawyer for imprisoned government contractor Stephen Kim is accusing the Obama administration of blatant hypocrisy and demanding Kim’s immediate release. In a letter to the Justice Department, Abbe Lowell says, quote, “The decision to permit General Petraeus to plead guilty to a misdemeanor demonstrates more clearly than ever the profound double standard that applies when prosecuting so-called ‘leakers’ and those accused of disclosing classified information for their own purposes,” unquote. Kim was convicted earlier this year for sharing information from an intelligence report on North Korea with a reporter from Fox News.

The famed lawyer Abbe Lowell says prosecutors dismissed his offer to have Kim plead guilty to the same misdemeanor they ended up offering to Petraeus. He writes, quote, “You rejected that out of hand, saying that a large reason for your position was that Mr. Kim lied to FBI agents.” But since Petraeus also lied to the FBI, Lowell concludes, quote, “Lower-level employees like Mr. Kim are prosecuted under the Espionage Act because they are easy targets and lack the resources and political connections to fight back. High level officials (such as General Petraeus) … leak classified information to forward their own agendas (or to impress their mistresses) with virtual impunity,” unquote.

The lenient treatment of Petraeus falls in line with similar responses to leaks from other administration insiders. CIA Director Leon Panetta helped provide secret information to the filmmakers of Zero Dark Thirty, the Hollywood film about the raid that killed Osama bin Laden, but never faced punishment. And just last week, it emerged that a long-running investigation of a former top-ranking Pentagon general for leaking the information that publicly exposed a U.S. cyberwarfare operation against Iran has stalled. According to The Washington Post, General James Cartwright had authorization to speak to reporters, and defense attorneys, quote, “might try to put the White House’s relationship with reporters and the use of authorized leaks on display, creating a potentially embarrassing distraction for the administration,” unquote.

Well, for more, we go to Washington, D.C., and we’re joined by Jesselyn Radack, National Security & Human Rights director at the Government Accountability Project. She’s former ethics adviser to the U.S. Department of Justice. She is one of the lawyers for Edward Snowden, Thomas Drake and John Kiriakou—three whistleblowers all charged under the Espionage Act. She recently wrote a piece for Foreign Policy magazine headlined “Petraeus, Snowden, and the Department of Two-Tiered Justice.”

Why don’t you lay out what that two-tiered Department of Justice looks like, Jesselyn Radack?

JESSELYN RADACK: Well, I think the two-tiered justice is simply that if you are powerful or politically connected, you can leak regularly with impunity. And we’ve seen that, because the top three past CIA directors, including Leon Panetta, including General David Petraeus, including Brennan, have all leaked covert identities and suffered no consequence for it. And meanwhile, the victims in Obama’s war on whistleblowers have all been low-level employees and, again, people who have been whistleblowers whose disclosures were not meant for the purpose of self-aggrandizement, but instead were meant to reveal fraud, waste, abuse and illegality, and all of whom revealed far less than Petraeus ever did.

AARON MATÉ: What about the use of the Espionage Act against some of your clients? With using that law, they can’t mount a defense that takes into account their intent. I imagine when investigators and prosecutors were looking into the case with Petraeus, they took into account what his intent was, which was to give material to his girlfriend. But someone like Edward Snowden can’t mount the same defense. It makes no difference, according to the Espionage Act, whether he gave documents to journalists versus whether he had given them to a foreign intelligence agency, which of course he did not do.

JESSELYN RADACK: That’s exactly right. The Espionage Act is effectively a strict liability offense, meaning that you can raise no defense. It does not matter whether you were leaking secrets to a foreign enemy for profit or whether you were giving information to journalists in the public interest to give back to the people who have a right to know what’s been done in their name. And the fact that the Espionage Act has been used on Tom Drake and John Kiriakou, on Edward Snowden, Stephen Kim, Jeffrey Sterling, Chelsea Manning, Shamai Leibowitz, to suddenly have Petraeus charged under a completely different law just smack of hypocrisy. Moreover, under the Espionage Act—I mean, technically, Petraeus should be charged under the Espionage Act but also with one count of making false statements and three counts under the Intelligence Identities Protection Act. And instead, he’s not charged under the Espionage Act, and, in fact, he’s not charged or indicted at all. He’s able to strike a sweetheart plea deal under Section 1924, which is far more lenient, far less punitive and under which he is able to mount a defense, unlike any of the people that I’ve represented.

AMY GOODMAN: I want to turn to General Petraeus in his own words. In 2010, at the time NBC’s David Gregory interviewed him on Meet the Press.

DAVID GREGORY: There’s another developing story that the military’s very unhappy about, and that is the leaking of secret war documents that were put on the Internet by WikiLeaks. There’s another 15,000 documents that are coming out. What’s in those documents? How damaging will they be?

GEN. DAVID PETRAEUS: Well, first of all, this is beyond unfortunate. I mean, this is a betrayal of trust, I mean, someone who had—apparently had access to highly classified material, albeit not top secret, I don’t believe, and not the codeword and so forth. And, in fact, a lot of this, when we first looked at it, we saw it as what we call first reports. It’s undigested. It’s not the final analysis. However, as we have looked through it more and more, there are—there are source names, and in some cases there are actual names, of individuals with whom we have partnered in difficult missions in difficult places. And, obviously, that is very reprehensible.

AMY GOODMAN: So, that’s David Petraeus in 2010. Broadwell’s book—his mistress and biographer—came out in 2012, so this would have been right, perhaps, around the same time. Your response to what the general was saying?

JESSELYN RADACK: You know, the general has also made similar hypocritical statements vis-à-vis my client, John Kiriakou. And the way the Espionage Act has been interpreted is that it does not in fact matter if harm occurred. Nevertheless, the government has gone to great lengths in every single case of whistleblowing to claim that great harm occurred from the disclosures of Chelsea Manning. Since the general was referring to the Manning leaks in particular, I went to the court-martial, and when it came time for the government to present a damage assessment, it in fact could not come up with one. So, although in all of these cases, Snowden—Tom Drake was said—he was going to have blood of soldiers on his hands. John Kiriakou was said to have caused untold damage now and into the future. The government waves its hands and screams and cries about damage, when none has occurred. And in fact, as the government well knows, the way the Espionage Act has been interpreted, it doesn’t in fact matter if damage happens.

AMY GOODMAN: We’re going to break and then come back to this discussion. We’re talking to Jesselyn Radack, who is National Security & Human Rights director at the Government Accountability Project, former ethics adviser to the U.S. Department of Justice under George W. Bush. She’s the lawyer for Edward Snowden, Thomas Drake, John Kiriakou—Kiriakou who’s just come out of jail but under house arrest. And she recently wrote a piece for Foreign Policy magazine headlined “Petraeus, Snowden, and the Department of Two-Tiered Justice.” Stay with us.