Secrecy: Leaks Prosecutions

Thoughts on the Petraeus Plea

By Benjamin Wittes
Thursday, March 5, 2015, 4:00 PM

Over at The Intercept, Peter Maass complains that the plea deal for David Petraeus is "yet another example of a senior official treated leniently for the sorts of violations that lower-level officials are punished severely for."

At Bloomberg View, by contrast, columnist Eli Lake argues that, while wrong, Petraeus's sins are just not that big a deal. This sort of leak, he says, is "part of the fabric of the national security state. Leaks are how the mid-level sends messages to the top level. Leaks are how senior bureaucrats and junior senators press favored policies and carry out grudges. Giving sympathetic authors access to state secrets is also how powerful generals and cabinet secretaries burnish their images."

Over at Foreign Policy, meanwhile, Rosa Brooks warns against shadenfreude: "Schadenfreude should be resisted. It’s unbecoming. Remember how your mother used to warn you not to make faces, because your face might stick that way? The same applies here. But in the case of Petraeus, there’s yet another reason to avoid schadenfreude: It tempts us to draw the wrong lessons." What's the right lesson? "Our legal framework for classifying information and dealing with its disclosure is all messed up."

Count me with Maass on this one. As much as it pains me to say it, I don't think the Petraeus deal is defensible based on the conduct described in the stipulation of facts. The allegations to which Petraeus has agreed in this document are pretty egregious. And while the analogies Maass draws to other cases are faulty ones, he is not wrong that it sends a terrible message when the people at the top walk away with misdemeanor, no-jail-time plea deals for giving highly classified material to their girlfriends and lying about it to the FBI while mid-level leakers do real time. 

Yes, it's true that Petraeus is a real American hero. It's also true that he has a whole career of public service that weighs in favor of mitigation. It's also true that the facts to which he has admitted do not seem to indicate any kind of malice. This was not a public disclosure, after all---although it could have led to one. This categorically separates him from people like Edward Snowden or Chelsea Manning, who stole and revealed to the public (and to America's enemies) highly sensitive information. Petraeus's disclosure was not a "leak" in the classic sense of the word, and the administration has not made war on unauthorized disclosures to mistresses.

All that said, the conduct described in this document reads like something more than a misdemeanor plea to me, particularly given the administration's tough stance towards leakers. Petraeus removed and concealed several notebooks full of code-word classified intelligence---including "the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and [his own] discussions with the President of the United States." He gave these for a period of time to his biographer, with whom he was also having an affair, at an unsecured private residence. And as director of the CIA, he then lied about the matter to the FBI---a huge aggravating factor, in my view. This was not simple mishandling of classified material. It was something for which other people, lower down, would reasonably expect very severe sanction.

I would love to be able to explain it away, but I can't. The conduct is just too bad for a deal this light. Lake may say that it's just Washington business as usual, but I don't think it is. I've been doing journalism in this town a long time; nobody's ever given me notebooks full of codeword classified material before. And I doubt anyone's give them to Lake either. And Brooks can say that it's really the system that's the problem. But that's too easy too. Under no system of classification would it be okay to give the identity of covert agents to your girlfriend-biographer.

At the end of the day, I agree with Maass that the deal "reveals [a] two-tiered justice system for leaks."