The plea deal given to retired Gen. David Petraeus, which spares him prison time even though he gave military secrets to his onetime lover, reveals a “profound double standard” in the way the Obama administration treats people who leak classified information, a lawyer for an imprisoned government contractor wrote in a letter to prosecutors.
The sharply worded letter calls for the Justice Department to immediately release from prison Stephen J. Kim, an arms expert and former State Department contractor who is serving a 13-month sentence for disclosing classified information about North Korea to Fox News. Kim has said he was trying to call public attention to the threat posed by that country.
Petraeus, one of the most celebrated U.S. generals of his generation, is scheduled to be sentenced next month for giving his handwritten journals – containing notes from his meetings with the president, the names of covert officers and other secrets – to his lover, Paula Broadwell of Charlotte, for a glowing biography she was writing about him. The Justice Department agreed not to seek jail time.
“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,” wrote Abbe D. Lowell, a lawyer for Kim.
The letter, dated March 6, arrived in what are likely to be Attorney General Eric Holder’s final weeks in office. And it serves as a sort of epilogue to the leak crackdown the attorney general has overseen. More people have been charged with discussing national security matters with journalists during his tenure than during all previous administrations combined.
Unlike Petraeus, though, most of those charged were low- or midlevel officials or contractors.
Lowell does not argue that Petraeus’ deal was too lenient, only that Kim’s was too harsh for what amounted to the same conduct.
“Our family and our friends think it is just terribly unfair and not right that Stephen was given less consideration and different treatment for doing no more, and even less, than General Petraeus,” said Kim’s sister, Yuri Lustenberger-Kim, who provided a copy of the letter Sunday.
Ronald C. Machen Jr., the U.S. attorney in Washington, whose office led Kim’s prosecution, has not responded to the letter. His spokesman, William Miller, declined to comment.
The crackdown highlights one of the seldom-discussed, behind-the-scenes realities of national security affairs: Government officials regularly discuss sensitive, even classified, information with reporters. Sometimes these discussions occur in sanctioned meetings between reporters and officials.
Because so much about national security is classified – for years, the well-known fact that the CIA used drones over Pakistan was officially a secret, despite a constant flow of news articles quoting government officials on those missions – it is nearly impossible to have substantive policy discussions without treading into that area. Sometimes, as in Kim’s case, those conversations are carried out in secret.
Last month, a former CIA officer, John C. Kiriakou, was released from prison after serving nearly two years for telling a reporter the name of a CIA officer involved in the agency’s interrogation program. When Kiriakou pleaded guilty in October 2012, Petraeus was the CIA director.
“Oaths do matter,” Petraeus said, “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.”
Days after making that statement, Petraeus was interviewed by the FBI about whether he, too, had illegally disclosed classified information. He said he had not. A month later, the FBI investigation became public, as did his affair with Broadwell. Petraeus resigned.
In a separate case, the FBI investigated another decorated military leader, retired Gen. James E. Cartwright, after public reports described a highly classified wave of U.S. cyberattacks against Iran. But that investigation has stalled, a law enforcement official said, because the operation is considered too sensitive to discuss at a public trial. The current status of that inquiry was first reported by The Washington Post.
“If you’re high enough up, you play by different rules,” said Thomas A. Drake, a former National Security Agency officer who pleaded guilty in 2011 of disclosing information to The Baltimore Sun about what he saw as agency mismanagement.
Like Petraeus, Drake reached a plea deal that spared him prison time. But Drake said the four-year investigation had cost him his retirement benefits and devastated him financially. Petraeus has a lucrative post-government career at a private equity firm, and travels widely to speak on national security issues. Even while under investigation, he advised the White House on Iraq and terrorism issues.
Another former CIA officer, Jeffrey Sterling, is scheduled to be sentenced next month for disclosing information describing a secret mission to disrupt the Iranian nuclear program to a New York Times reporter. Sterling maintained he was innocent and said his prosecution was retribution for telling Congress that the mission had been botched. He was convicted at trial and faces years in prison.
Kim, in his negotiations with the Justice Department, sought a deal similar to the one that Petraeus received, according to his lawyer’s letter. But prosecutors rejected it.
“The reasons that you provided to refuse our misdemeanor offer were grounded in motive and lying to the FBI,” Lowell wrote. “There is no difference between the two cases in that respect. (If anything, General Petraeus’ motive was far less noble.)”
The Petraeus case is unusual in that Broadwell, his biographer, had a security clearance. She was not authorized, however, to receive the information in his journals, which contained matters classified at the highest levels.
Lowell, one of the nation’s top defense lawyers, has previously highlighted the fact that top government officials disclose classified information for political purposes while prosecuting others for the same activity.
During former President George W. Bush’s administration, Lowell represented Steven J. Rosen, a pro-Israel lobbyist charged with receiving classified information from his contacts in the U.S. government and sharing it with journalists and Israeli officials. Lowell responded to the charges by subpoenaing Secretary of State Condoleezza Rice and other senior officials. He said he planned to question them at trial about what national secrets they routinely shared. The Justice Department dropped the case.
Kim is due to be released in June from a federal prison in Cumberland, Md. It would be highly unusual for the Justice Department to cut short Kim’s sentence based on the terms of someone else’s plea deal. But Lowell wrote that he would take the request to Holder if the local prosecutors did not agree.
“It is a matter of that importance,” he said.