Mockery and Malarkey in the IC

Originally published at The American Interest, which tightly paygates its content. I have retained the rights to this and am reprinting it in full.

The Petraeus affair has exposed the hollowness of U.S. intelligence classification decisions and made a mockery of the justice system.

In a blockbuster investigative report dated January 25, Adam Goldman of The Washington Post has revealed just how General David Petraeus managed to avoid a prison sentence for leaking highly sensitive, classified information to his mistress and biographer, Paula Broadwell.

In the interview at Langley, the FBI agents also asked the CIA director about secret PowerPoint briefings on the Afghan war that were in Broadwell’s possession. They also asked if he had provided classified information to Broadwell or facilitated her obtaining it. He denied ever doing that—a statement that later led some in the Justice Department to argue that he should be charged with lying to the FBI when it emerged that she had more sensitive material….

His legal team later rejected any possibility of pleading guilty to felony offenses. In July 2014 in Charlotte, Petraeus’s lawyers told prosecutors they couldn’t show that he intended to disclose classified information and pointed to Broadwell’s book, which contained none and had been personally vetted by the general. And they brought up an array of classified material that had appeared in other books and articles, including some written by Cabinet members, and had not led to prosecutions. That showed, they said, that some of the material Broadwell had obtained from Petraeus was already in the public domain.

What this case essentially shows is that there are two tiers of justice in the United States intelligence community. The notebooks in Paula Broadwell’s possession “contained code words for secret intelligence programs, the identities of covert officers, war strategy and deliberative discussions with the National Security Council,” according to the officials involved in this case. That the incoming director of the CIA, who is responsible for safeguarding some of the country’s most sensitive national security secrets, can leak such sensitive material to his lover and face a mere misdemeanor charge is worse than a miscarriage of justice: It actively undermines other cases against damaging leaks and mocks the impartiality of the rule of law.

In situations where the leaker in question is not a powerful, connected individual, the consequences of leaks can be very damaging. Thomas Drake, a former National Security Agency official, leaked non-classified information about an over-budget and possibly illegal surveillance program to a reporter. The government canceled his clearance and blacklisted him from future employment. Drake faced years of financially ruinous court proceedings (the government dropped its case right before it would have gone to trial).

In other cases, even leaking lesser-classified material has resulted in far harsher punishment. Chelsea Manning, for example, leaked nothing nearly as sensitive as what General Petraeus handed over in his notebooks: While the State Department cables and the CIDNE databases for Iraq and Afghanistan have done enormous harm, they did not directly identify special access programs (SAPs) or expose sensitive discussions at the National Security Council, which is far more useful to an adversary regime. The scale of data Manning leaked is extraordinary, but its sensitivity is not: None of it exceeded the Secret level, because all of it was stolen from SIPERNet—and more sensitive material rarely shows up in that venue. If the Washington Post’s account is correct, Petraeus mishandled information above Top Secret. Manning is facing 35 years behind bars for leaking classified data; David Petraeus walked with a plea and a fine.

Arguably even more outrageous is the kid-gloves handling of Paula Broadwell. As a counterintelligence reservist with the rank of Major in the U.S. Army, she maintained both a security clearance and her military oath. But the Justice Department seems to have decided that her writing a biography and penning some op-eds exempted her from prosecution. From The Washington Post:

Investigators discovered more than 100 photographs she had taken of highly classified information from eight bound notebooks Petraeus had kept while commander of U.S. and coalition forces in Afghanistan.

They also found other classified material in her possession linked to a period in 2003 when she served on a Joint Terrorism Task Force in Denver.

It eventually became clear to the FBI that Petraeus had given those journals to Broadwell as part of her research for her book; the FBI seized the journals in April 2013 after searching Petraeus’s house in Virginia.

Broadwell also recorded a conversation in which Petraeus told her that the journals contained classified information, a statement the FBI would attempt to use against him.

But there was disagreement inside the Justice Department and the FBI about whether Broadwell should be charged, with some arguing that she enjoyed protection as a journalist.

In June 2013, following harsh criticism of leak investigations targeting the news media, Holder said he would not indict any journalists for doing their jobs. Broadwell had media credentials while researching in Afghanistan, and she had written stories and op-eds in newspapers and policy journals.

People without the high-level connections Paula Broadwell enjoyed would not have so easily escaped far harsher punishment. By allowing Broadwell to claim the mantle of a journalist, even if it was for the sole purpose of promoting her book subject and lover, the Justice Department upended the very idea of law enforcement against illegal leaks. The Justice Department valued her status as a friendly journalist over her status as a cleared Army officer. This is a judgment that only someone with unique access to a powerful person could enjoy. Lesser members of the intelligence community, even ones friendly to the IC and the military, would have faced prison.

This is a personal issue for me: I was a cleared intelligence analyst working for the U.S. Army while being allowed to write articles in public about the war in Afghanistan for many years. All the while I was the subject of constant scrutiny, including at one point having been issued an order to cease all discussions of Afghanistan in any forum, public or private, on the assumption that I would inadvertently leak classified information. Despite several years of intrusive and adversarial challenges from counterintelligence officers (which was Broadwell’s career track), not a single instance of my having ever leaked classified information was demonstrated. Nevertheless, these counterintelligence officers went to great pains to tell me that I would face life-altering consequences if even so much as one instance was found. I guess I worked for the wrong generals.

Even if we accept the expansive definition of a journalist that she received, Broadwell got off unusually easy. The seven years of torment the Justice Department meted out to New York Times reporter James Risen makes for a useful comparison. Risen, who never swore an oath to safeguard classified material, was relentlessly harassed, put on trial, and attacked for refusing to identify a source for his reporting. Former New York Times reporter Judith Miller, who had also sworn no oath, famously spent 85 days in jail for refusing to reveal her sources in the Plame affair. Broadwell improperly used her position as a military officer, her access as a counterintelligence officer, and her capacity as a writer to gain access to very sensitive information, yet the Justice Department decided to let Broadwell, who had sworn several oaths to safeguard classified material, escape without even a plea to a lesser charge. (Attorney General Eric Holder’s unwise overreaction to Risen is partly why Broadwell was let off so easily).

Back to Petraeus, one last issue begs consideration: his lying to the FBI. Ordinary Americans face jail for knowingly lying to Federal law enforcement officials. In 2001, Martha Stewart lied to FBI officials when they were investigating a possible act of insider trading with the stock in a genetics company. It didn’t matter that the amount of money in play was trivial; lying to the FBI is a crime, and she went to prison for five months. David Petraeus lied to the FBI about his affair involving “gravely damaging” national security information, and he was allowed to plead out on a misdemeanor. In what universe is this an appropriate application of the law? The clear double standard is the opposite of everything the American government should stand for.

Now, one might argue that, because these classified materials passed between the incoming Director of the CIA and a cleared counterintelligence officer and were never made public, this leak was no big deal. But then why is the FBI currently investigating whether Special Access Programs were discussed in an inappropriate way on Hillary Clinton’s private email server when she was Secretary of State—a server that, much like Broadwell’s personal computer at her house, was not publicly known until a wave of FOIA requests made it so. If the many rumors and unsourced allegations about Clinton’s emails are true, then she is no more guilty of a crime than Paula Broadwell or David Petraeus, which makes one wonder why she would be subject of such intense scrutiny while Petraeus is the subject of flowery defenses of his character. The answer should be obvious: Her name, her politics, and the fact that no one values public service as a U.S. Senator or at the State Department the way they value service as a general.

Yet there is a principle in play that matters, too: If Petraeus and Broadwell get to skate by with barely a slap on the wrist for deliberately leaking classified information among themselves, on what grounds could one build a prosecution of Clinton? By giving a politically popular general a pass, all future prosecutions over misconduct get thrown into doubt. This is toxic to the concept of the rule of law.

Looking toward the future of leak investigations, the double standard becomes even more damaging. If one is to believe the Obama Administration, leaks about classified national security secrets are matters of grave importance—so much so that even relatively innocuous leaks like discussing a news report about a drone strike in Pakistan (classified as a SAP so sensitive it cannot be publicly acknowledged by, say, Hillary Clinton’s emails)—are worth possibly upending a political campaign.

Poor Edward Snowden: He wasn’t writing his own book and op-eds about the perils of internet surveillance. He missed out on the generous leeway officials and careerists receive when they’re seen as working “for the team”—which is to say, for the benefit of the military. (That, too, possibly explains the unwillingness of the Secretary of the Army and the Secretary of Defense to punish Petraeus and Broadwell at their own authority and discretion.) The government’s case against Snowden looks weaker because of how gently Petraeus and his biographer have been treated. It is now harder to make a powerful case against Snowden after other violations have been allowed to slide by when well greased politically. Prosecuting future leaks, even ones like Snowden’s that have done enormous damage, will become much more difficult.

The entire Petraeus affair has made a mockery of us. It has exposed the hollowness of many intelligence classification decisions; if they really were “exceptionally grave threats to national security,” then leaking them would not be a misdemeanor plea. It has shown that having powerful friends (to this day, Senator John McCain is running defense for Petraeus) can make enforcing the law so difficult as not to be worth the trouble to try. And it has shown that justice, at least for the cleared, is only doled out to the politically inconvenient or weak; the politically favored will get to break the law without any real consequence.

We can do better than this. It is time to end official immunity for leaks, and that ought to include politically motivated leaks of classified information from the White House, Pentagon, and other agencies of government. A lifetime of service in uniform should not put a person above the law: If anything, it should obligate him even more powerfully to be subject to the law. By making the application of espionage and leak laws so selective and politicized, the government makes its own secrets less effective and our own laws less defensible.