Tuesday, March 17, 2015
A Double Standard on Leaks?
As Whistleblowers Jailed, Petraeus Escapes Prison & Advises White House
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 is 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, Petraeus gave classified material to his girlfriend, Paula Broadwell, who was writing his biography. Petraeus let Broadwell access his CIA email account and other sensitive material, including the names of covert operatives in Afghanistan, war strategies, and quotes from White House meetings. Earlier this month, he reached a plea deal, admitting to one count of unauthorized removal and retention of classified information. Prosecutors will not seek prison time, but instead two years probation and a fine. He remains an administration insider, advising the White House on the war against ISIS. We speak to Jesselyn Radack, National Security & Human Rights director at the Government Accountability Project. A former ethics adviser to the U.S. Department of Justice, Radackis the lawyer for Edward Snowden, Thomas Drake and John Kiriakou — three whistleblowers all charged under the Espionage Act. She recently wrote an article for Foreign Policy magazine, “Petraeus, Snowden, and the Department of Two-Tiered Justice.”
This is a rush transcript. Copy may not be in its final form.
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.
Tabacco: In America today despite all that spoken rhetoric to the contrary, as it has always been and always will be, some Americans are more equal than others!
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.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Aaron Maté. Our guest is Jesselyn Radack, National Security & Human Rights director at the Government Accountability Project. She is the attorney for Edward Snowden, as well as Thomas Drake and John Kiriakou. Aaron?
AARON MATÉ: Yes. I want to turn to comments from Senator Dianne Feinstein. Speaking earlier this year to CNN, Feinstein urged the Department of Justice not to bring criminal charges against General Petraeus.
SEN. DIANNE FEINSTEIN: This man has suffered enough, in my view. He’s the four-star general of our generation. I saw him in Iraq. He put together the Army Field Manual. He put together the Awakening and how it worked out. He, I think, is a very brilliant man. People aren’t perfect. He made a mistake. He lost his job as CIA director because of it. I mean, how much do you want to punish somebody?
Tabacco: Hypocrisy is NOT limited by Senatorial titles or Gender!
In the prior decade Senator Feinstein of California ranked 2nd only to Senator Joseph Lieberman of Connecticut as the worst Senate Democrats. Senator Lieberman has since retired. Dianne Feinstein now ranks alone at the bottom.
AARON MATÉ: That’s Senator Dianne Feinstein. Jesselyn, if you could respond to that? “This man” who “has suffered enough,” she says. And also, before the break, you mentioned the issue of damage. I wanted to ask you, how does the issue—how does the damage created by Petraeus’s leaks compare to damage ostensibly created from other leaks, such as your clients—Edward Snowden, for example?
JESSELYN RADACK: Well, in the Snowden case, there has been no actual damage shown to have occurred from his disclosures to journalists to print articles. And in terms of Petraeus, whatever made it into Paula Broadwell’s book, there could be a lot of potential damage. There could have been a lot of potential damage. I have not read her résumé-fluffing book myself. But I think what Petraeus is accused of disclosing, including codenames and conversations with the president of the United States, notes from the National Security Council, war plans, that information is far more highly classified and could be far more dangerous to have been revealed to anybody.
In terms of Dianne Feinstein’s statement and Senator McCain’s statement, which closely tracked Feinstein’s, you know, I think they’re right that people have suffered enough, and this is a life-crushing thing to be charged with espionage or to be under any kind of criminal cloud whatsoever. However, with a number of my clients, we approached Congress, who did nothing. No member of Congress did anything. There were no crocodile tears. There were no public statements. There was nothing. In terms of what John Kiriakou—
AMY GOODMAN: The White House—the White House is not seeking their advice, as they are with General David Petraeus?
JESSELYN RADACK: No, not at all. And, in fact, what Tom Drake and John Kiriakou went through, they went—they lost their careers, their life savings, their pensions, their, you know, marriages and families intact—same with Stephen Kim. I mean, people have paid a huge price and suffered tremendously, far more than Petraeus, who, as you’ve noted earlier, enjoys a lucrative speaking career, still has his security clearance and is, in fact, advising the White House on ISIS. He has suffered no damage from this.
AMY GOODMAN: Jesselyn Radack—
JESSELYN RADACK: Whereas John Kiriakou and Stephen Kim have both spoken about being suicidal over having the sword of Damocles over their head for so many years.
AMY GOODMAN: So let’s talk about their particular cases, for people who aren’t that familiar with them. Last month, I interviewed John Kiriakou, the retired CIA agent, who’s been released from prison after blowing the whistle on George W. Bush administration’s torture program. In 2007, he became the first CIA official to publicly confirm and detail the agency’s use of waterboarding. I asked him why he believed he was jailed. He spoke from his home, where he’s still under house arrest.
JOHN KIRIAKOU: Oh, I am absolutely convinced, Amy, that I was jailed because of the torture debate. People leak information in Washington all the time, whether it’s on purpose or inadvertent. We’ve seen—we’ve seen people like former CIA Director Leon Panetta, former CIA Director General Petraeus, leaking classified information with impunity. And that has convinced me that I’m right when I say that my case was never about leaking. My case was about blowing the whistle on torture.
AMY GOODMAN: That’s John Kiriakou. Jesselyn Radack, he just came out of prison after two years, under house arrest now for how much longer?
JESSELYN RADACK: For 40 more days.
AMY GOODMAN: So, talk about what he has just said and how what he has done compares to what General Petraeus has done.
JESSELYN RADACK: Yeah, I think John makes a very good point. He was the first CIA officer to confirm that the U.S. has a torture program and that we were waterboarding people and that torture was a regular practice, not some rogue pastime. Like John Kiriakou, Thomas Drake revealed surveillance programs in their embryonic stages, much like what Edward Snowden, years later, revealed in their full fruition. In other words, these people have revealed some of the biggest scandals of my generation, including torture and secret surveillance. And they have also revealed information, like in the case of Jeff Sterling and in the case of Stephen Kim, that was embarrassing to the administration. And that is precisely why they are being punished with a draconian law like the Espionage Act, which is an antiquated, heavy-handed World War I law meant to go after spies, not whistleblowers. So, the very visible prosecution of Drake, Kiriakou, Manning, Kim, Sterling, Snowden, these are meant to send a message to people: Do not reveal regular whistleblower information, which would be fraud, waste, abuse or illegality, or else you will be slammed.
AARON MATÉ: Jesselyn, you mentioned Thomas Drake, another one of your clients. He was initially charged under the Espionage Act for leaking information about waste and mismanagement at the National Security Agency. But the case against him collapsed. Democracy Now! spoke to him in 2012 about his case.
THOMAS DRAKE: I was charged under the Espionage Act as part of an indictment that was handed down on me in April of 2010. There was five counts under the Espionage Act for retaining—not leaking, retaining—national defense information, although the government alleged that I was doing so for the purpose of disclosure to those unauthorized to receive it. I was also charged with obstruction of justice, as well as making false statements to FBI agents. …
My first day on the job was 9/11. And it was shortly after 9/11 that I was exposed to the Pandora’s box of illegality and government wrongdoing on a very significant scale. So, you had the twin fraud, waste—you know, the twin specters of fraud, waste and abuse being committed on a vast scale through a program called Trailblazer, a multi-billion-dollar program, when in fact there was alternatives that already existed and fulfilled most all the requirements of Trailblazer, even prior to 9/11.
AARON MATÉ: Jesselyn, if you could explain what Thomas Drake did and his status now working in an Apple Store after blowing the whistle?
JESSELYN RADACK: Sure. Thomas Drake is a classic whistleblower. He blew the whistle through every possible means available—to his boss, to the general counsel of the NSA, to the Department of Defense inspector general and to two bipartisan 9/11 congressional investigations. And not only did they fail to redress his concerns, the Department of Defense inspector general turned around and sold him down the river to the Justice Department for prosecution. He eventually went to a Baltimore Sun reporter with clearly strictly unclassified information, which sparked a series of award-winning articles. But nevertheless, Tom Drake was threatened with facing the rest of his life in jail. Those were literally the words that the prosecutor used against him. And in the end, once we were able to show that the so-called classified information against him was not really classified—it had been seized from his home and stamped classified after the fact—the case soon collapsed, and he pled guilty to a minor misdemeanor under the same provision that General Petraeus was able to get his plea bargain.
AMY GOODMAN: I’d like to ask about the case of Stephen Kim, as well. Last month, The Intercept published details of Kim’s prosecution in a new article headlined “Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story.” A short film called The Surrender accompanied the report on The Intercept‘s website. It’s directed by Stephen Maing and produced by Peter Maass and Laura Poitras, director of Citizenfour, which is the Oscar-winning film about Ed Snowden. This clip begins with Stephen Kim himself.
STEPHEN KIM: In June 2009, I had a new life ahead of me. I had recently gotten married, and I was about to go work for the secretary of state on foreign policy and national security. I had no inkling that the dark clouds would suddenly be appearing.
NARRATION: In the spring of 2009, State Department analyst Stephen Kim was introduced to Fox reporter James Rosen. The meeting was arranged by the State Department’s Bureau of Public Affairs.
STEPHEN KIM: I remember meeting him right outside the State Department. You know, it’s just like when you first meet. We talked about many things—Pakistan, the Iranian Revolution, the nuclear fuel cycle. He didn’t know about South Korea, let alone North Korea. So I had to explain like the basics.
AMY GOODMAN: That is Stephen Kim. He’s serving 13 months in prison right now. Abbe Lowell, who we referenced earlier, a piece about his letter to the Justice Department is in The New York Times yesterday, written by Matt Apuzzo—Abbe Lowell, the famed lawyer who was the chief minority counsel to Democrats in the House of Representatives during the impeachment of Bill Clinton. He wrote, “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.” Jesselyn Radack?
JESSELYN RADACK: I agree with Abbe Lowell’s assessment completely. Stephen Kim is a modern-day Horatio Alger story, and he’s just an amazing man, whose life has been completely ruined because he talked to a reporter about the idea that North Korea might fire test missiles in response to U.N. sanctions. None of this was jaw-dropping news. It was in fact known by anyone who’s an expert in North Korea, and was widely discussed in Washington circles, yet the government decided to retaliate against him. And he, right now, is serving a 13-month sentence in jail under the Espionage Act. Like my other clients, I doubt that Stephen Kim will ever be able to obtain a security clearance again, ever work in the intelligence community again or on national security issues, and will spend years in debt trying to pay off attorneys’ fees that he has accrued. And that’s not to mention, you know, his own marriage, that he already lost as a result of a brutal Espionage Act investigation. And his story of the effects of this are not unique at all. People literally end up bankrupted and blacklisted and broken from these Espionage Act investigations and prosecutions.
AARON MATÉ: Or, Jesselyn, in the case of Edward Snowden, they end up in asylum in Russia. Let’s turn to him. This is a clip from the first video the world saw of Edward Snowden, filmed by Laura Poitras in Hong Kong.
EDWARD SNOWDEN: The greatest fear that I have regarding the outcome for America of these disclosures is that nothing will change. People will see in the media all of these disclosures. They’ll know the length that the government is going to grant themselves powers, unilaterally, to create greater control over American society and global society, but they won’t be willing to take the risks necessary to stand up and fight to change things, to force their representatives to actually take a stand in their interests.
AARON MATÉ: That’s Edward Snowden. Jesselyn Radack, as we wrap—we have 30 seconds—what’s the latest with his case? He said, repeatedly, he would come home if he could get a fair trial.
JESSELYN RADACK: And that still remains true. However, a fair trial is not an Espionage Act trial, which takes place largely in secret and under which he can raise no defense. If the government is interested in talking to us about a Petraeus-type puff plea, I think we’d be glad to listen. But, you know, that’s all—that’s the government’s move right now. I think Edward Snowden called it correctly. He watched very carefully what happened to Chelsea Manning and what happened to Thomas Drake and made his decisions accordingly. And now that we have the Petraeus model, at least there is a way now to look at this through a different lens, that could be informative in terms of the Edward Snowden case and the Sterling sentence.
AMY GOODMAN: You know, the comparison to Petraeus is very interesting, particularly the last part we’ve just learned, is that he’s advising the White House, because Edward Snowden advising the White House and the NSA on information policy could be a very interesting and positive benefit for this country.
JESSELYN RADACK: I agree with you completely. And he’s expressed an interest in doing so. And, in fact, other governments have repeatedly expressed their interest in having him help them learn more about their informational operational security and what they can do to strengthen cyber, and I think he would have a lot of helpful information. And like all of these whistleblowers, he is a very talented, brilliant, prescient individual. And these people—it’s a complete loss to the United States if they’re never allowed to be public servants again.
AARON MATÉ: And, Jesselyn, very quickly, is it true, in terms of these discussions around Snowden with prosecutors, that the government’s only assurance so far is that they wouldn’t charge him with the death penalty?
JESSELYN RADACK: Right. Well, yes, they would not charge him with the death penalty, and they also promised he would not be tortured. I think that’s setting a very low bar.
AMY GOODMAN: Jesselyn Radack, we want to thank you very much for being with us, National Security & Human Rights director at the Government Accountability Project, former ethics adviser to the U.S. Department of Justice under George W. Bush, and lawyer for Edward Snowden, Thomas Drake, John Kiriakou. We’ll link to your piece in Foreign Policy, “Petraeus, Snowden, and the Department of Two-Tiered Justice”.
This is Democracy Now! We’ll be back in a minute with a case you may think you know all about. It certainly got a lot of attention. But, in fact, all of the details of it may be entirely wrong. Stay with us.
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