Petraeus Plea Deal Shows Double-Standard in U.S. Government’s Prosecution of Leakers

Recently released CIA Whistleblower John Kiriakou and investigative reporter Marcy Wheeler respond to the plea deal received by General David Petraeus for leaking highly classified documents to his mistress

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Story Transcript

JAISAL NOOR, TRNN PRODUCER: Welcome to The Real News Network. I’m Jaisal Noor in Baltimore.

On Tuesday, former CIA director and general David Petraeus pled guilty to leaking top-secret material as part of a plea deal with federal prosecutors. He reportedly shared the highly sensitive material with biographer and mistress Paula Broadwell. According to court documents, Petraeus faced a maximum one year in prison, $100,000 fine, or five years on probation, but is walking away with two years of probation and a $40,000 fine. Critics say this is a slap on the wrist compared to what others prosecuted for sharing classified information have faced.

One of those people is John Kiriakou. John is now joining us from his basement in Arlington, Virginia, where he remains under house arrest. John is a former CIA officer who was imprisoned for exposing the CIA’s torture program.

From Grand Rapids Michigan is Marcy Wheeler. She’s an investigative reporter covering national security and civil liberties at EmptyWheel.net and other outlets.

Thank you both for joining us.

MARCY WHEELER, TITLE INVESTIGATIVE REPORTER: Thanks for having me.

JOHN C. KIRIAKOU, FORMER CIA ANALYST: Thanks for having me.

NOOR: So, Marcy, I wanted to start with you. Talk about exactly what Petraeus is accused of doing, because these are some serious allegations.

WHEELER: Pled guilty to basically retaining classified information, national defense information. What he was not charged with is the really stunning stuff, because he, first of all, shared eight notebooks, called black books, with Paula Broadwell. They included things like multiple covert officers’ identities, conversations he had with the president of the United States, deliberative discussions with the National Security Council, codeword programs. I mean, it’s really sort of a collection of the crown jewels of some of the United States’ biggest secrets, and he shared them with his mistress.

He also was keeping these documents in, at the time, a rucksack, and when the FBI searched his house, in an unlocked desk drawer. So he wasn’t–these all should have been, basically, in a safe, and they were unlocked in his house.

And then, finally, what he wasn’t charged with is that when the FBI asked him whether he would share this information with Broadwell, he lied. He said that he had not done so. So if those crimes had actually been charged, he’d be facing 100 years, probably looking more at 20, if he’d actually go to prison. Instead, he’s going to do two years of probation and pay what for somebody in the private equities industry is basically lunch money, $40,000.

NOOR: And so, Marcy, you and others have pointed out the hypocrisy of this compared to what happened with John, because John, he was imprisoned for exposing the CIA’s torture program, which many would consider a public service.

And so, John, you faced 23 months in prison for that, and you remain under house arrest. Talk about what your reaction was to the deal that Petraeus got.

KIRIAKOU: Well, to be honest with you, I was surprised that we even got this far with Petraeus. I didn’t even think he would even be charged with any crime.

And I had seen the press reports. I think as recently as a week ago in The New York Times they said that his attorneys were in discussions with the Justice Department about coming to some sort of agreement. I didn’t think it was going to happen.

But I think there’s even a broader issue here, and that’s the issue of the Espionage Act. It would have been logical to charge him with a violation of the Espionage Act if this administration was going to be consistent. It wasn’t consistent.

But I have a problem with the Espionage Act as it is now. I was charged with three counts of espionage. Other whistleblowers, just during the course of the Obama administration, have been charged with espionage. None of us committed espionage. And there’s a problem with that law. It needs to be rewritten.

Now, personally, I think that–and Marcy’s going to disagree with me vehemently, but I don’t think Petraeus should have been charged with a crime at all. It’s because I didn’t think there was any criminal intent, and there was no harm to the national security, just like in my case–I had no criminal intent, there is no harm to the national security. There shouldn’t have been a charge. And I think there shouldn’t have been a charge for him.

NOOR: Marcy, what’s your response that?

WHEELER: Oh, I don’t actually disagree all. I mean, I think the problem is the inequity. You know, it’s not–

KIRIAKOU: Amen to that, Marcy.

WHEELER: –it’s not just the comparison of how Petraeus gets treated with how John gets treated, but it’s that three days before Petraeus lied to the FBI about sharing multiple covert officers’ identities with his mistress, he applauded Kiriakou’s plea deal, and he basically said, you know, this is a victory, we’re going to protect our officers’ identities, when people take an oath, they take an oath. So three days after he makes that public statement, he goes on to lie to the FBI. And that is what I find so hypocritical.

I agree with John. I think, particularly if the law is interpreted in Virginia about intent, about whether you think you’re doing harm to the United States, it’s really damaging. And it’s problematic, because it feeds this kind of retaliation, I think, from the intelligence agencies.

And then, in the larger scale of the inequitable treatment, I think it’s a real problem, because what Petraeus shared–never published, but the same is true for John–confirming a CIA officer’s identity that only ever showed up in a court filing at Gitmo that no one ever got to see except for people with clearance, so a similar kind of never published program. But with Petraeus it was many more, you know, that it was massive. So you just can’t have that kind of inequitable treatment, because it breeds, I think, real cynicism and distrust about–I mean, I think these are real secrets. I think what Petraeus shared are secrets that need to be protected. But if he can get away with two years of probation for them, then we’ve got to really question whether they are secrets. And I think they are. But I think that the government really does itself–it discredits itself. It discredits the claims it’s making about secrets when it gives this kind of inequitable treatment.

NOOR: And it’s worth mentioning again for our viewers that the Obama administration has prosecuted more alleged whistleblowers than all other presidents combined, and at the same time going after people like Jeffrey Sterling. I wanted to get your response on that.

WHEELER: Right. I mean, Jeffrey Sterling is somebody who actually went to trial. Most everyone pleads out. He went to trial on multiple counts, seven counts of espionage, and some other things thrown in for good measure, like DOJ likes to do. And over the course of the trial, the CIA engaged in a great deal of security theater and spent a lot of time trying to claim that the program in question was operated well.

But when you got into the nitty-gritty of the evidence they used to convict him, it turns out he was right. It turns out that Sterling was right that the CIA had basically just handed off this nuclear, this $1.5 million nuclear blueprint to Iran with no way of contacting back to the CIA. And Sterling wasn’t really one who was worried about it.

But nevertheless he faces 40 years–it’s, you know, probably going to be closer to 12 when he’s sentenced in April. But he faces a huge term in prison for something that really should have been–. But the other thing we found in that case is that his supervisor was not really honest about what had happened in cables reporting up through the ranks. So it’s not even clear CIA–and certainly Condie Rice, and certainly other top officials in the government, I think, got a mistaken idea of what had happened on that operation. Jeffrey Sterling went to the SSCI. There was no real evidence that he leaked information to James Risen. But when it came out in Risen’s book, all of a sudden Sterling’s going to go to prison for a very long time.

NOOR: And, John, I wanted to get your response. And it’s been said now that you’re the only one to go to jail for CIA torture.

WHEELER: Yeah. Ironic as that is, I’m the only one that’s going to jail. And if we’re to believe the president, I’m the only one who will ever be prosecuted.

I wanted to say couple of things about Jeffrey Sterling, too. Jeffrey Sterling did everything right. Jeffrey Sterling complained up the chain of command about this operation. He complained to the oversight committee about the operation. And, frankly, there’s no real evidence that he gave, or at least he was the sole provider of this information to Jim Risen. Risen didn’t testify. And all we know is that there were phone calls between them. But we have no idea what was said.

I don’t believe that Sterling ever had a chance in the Eastern District of Virginia. His jury was made up of exactly the kind of people who would put him away–federal employees, perhaps retired intelligence community employees, DOD employees. How is he going to get a fair trial with a jury like that and with a judge who has reputation as being a real heavy hand, an iron fist, even, on national security crimes? I had the same judge. I know exactly what he was going through.

So he went to trial. He was found guilty at trial. Now what the government is going to do is they’re going to seek to increase his sentence through the use of enhancements. For example, if he’s found guilty of a crime at a level, let’s say, 27–it goes from level 1 to level 40–he’s going to get a two-point enhancement for not taking responsibility for his crime. Right? So that puts him at a 29. Perhaps they’ll throw in making a false statement or obstruction of justice. The government has to prove none of this. They can just tell the judge they’re seeking these enhancements. So where he may have gotten three years or five years or seven years, he’s now looking at 12, 15, maybe even 20 years, depending on the enhancements that he gets a trial.

I wanted to make one other point, too. About three years ago, Harvey Silverglate, a Harvard Law School professor, wrote a book called three felonies a day, and in that book he argues that we are so over-regulated and over-legislated and over-criminalized in our country (thanks to Congress) that the average American going about his normal business on the average day commits three felonies. And that’s the position we’ve come to in this country, that if they really want to get you, they’re going to get you. And it’s not going to be hard, because we all go round breaking the law all day long, thanks to Congress.

NOOR: And especially in the light of all the surveillance the government is doing and the–

KIRIAKOU: Especially.

NOOR: –you know, they know our web histories, and so they’d–certainly would be able to go after the people they certainly went to.

Marcy, I wanted to end with you. The last time you were on, you mentioned how Petraeus is now two of three recent CIA directors who we know shared highly classified information and has basically gone free. Talk about that. Is it the fact that the CIA directors, they know so much that they’re kind of untouchable?

WHEELER: Well, yeah. The other one is Leon Panetta, who both invited Hollywood producers into Langley to go meet the SEAL team that killed Osama bin Laden, but also didn’t get his book preapproved. And John can talk about how much trouble that can get you in, ’cause that was another thing he was charged for. And, curiously, the DOD’s inspector general actually investigated that leak. And the inspector generals at DOD got in trouble, because they said, you’re not allowed to investigate–this is when Panetta had moved over to be the secretary of defense. They’re like, you’re not allowed to investigate the secretary of defense. If they leak stuff, you can’t investigate it. And that’s sort of the rule. I mean, to some degree these people are all the original classifiers, so they can get away with stuff. But there’s this institutional notion. I mean, not even the people who were Sterling’s supervisors ever got investigated by the FBI. The FBI never ruled them out as potential sources for James Risen, even though it’s clear that they weren’t being entirely honest in CIA cables either, you know, so that the further up the chain of command you get, the more impunity you have, not just for lying and leaking, but, obviously, for a bunch of other things.

And it comes back to–. You know, Petraeus lied to the FBI, and that just got disappeared. And I think that that is a very dangerous precedent to have, to have our top national security people who simply can lie to law enforcement with no–any kind of punishment.

NOOR: Thank you both for joining us.

KIRIAKOU: Thanks for having me.

WHEELER: Thank you.

NOOR: Thank you for joining us at The Real News Network.

End

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