David Petraeus Given Slap on Wrist for Espionage Act Violation

The former CIA Director received no jail time and a nuisance-level fine in exchange for a guilty plea to espionage charges.

David-Petraeus-Civilian

David Petraeus has been sentenced to no jail time and a nuisance-level fine in exchange for a guilty plea to espionage charges.

NYT (“David Petraeus Is Sentenced to Probation in Leak Investigation“):

A federal judge on Thursday sentenced David H. Petraeus, the highest-profile general from the wars in Iraq and Afghanistan, to two years’ probation for disclosing classified information. He was also fined $100,000, which was $60,000 more than the government had recommended.

The sentencing was the end of a leak investigation that embarrassed Mr. Petraeus and created bitter disputes inside the Justice Department about whether he was receiving too much leniency from Attorney General Eric H. Holder Jr.

F.B.I. officials and some prosecutors had contended that Mr. Petraeus should receive prison time for providing highly classified journals to a woman with whom he had an affair and who wrote his biography when he was the director of the C.I.A.

But Mr. Holder sided with Mr. Petraeus, ultimately deciding to agree to recommend that he be spared prison time. That decision angered the F.B.I. officials and prosecutors who said the attorney general was giving Mr. Petraeus preferential treatment, according to several law enforcement officials.

Not only had the head of the C.I.A. potentially jeopardized national security, but he had lied about it to F.B.I. agents in an interview, the officials said. Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers.

And giving special treatment to Mr. Petraeus was a double standard, some argued, particularly when the Justice Department has led an unprecedented crackdown on leaks and prosecuted several low- and midlevel officials for disclosing secrets to reporters.

While I ultimately disagree, I’m very sympathetic to the FBI position. As Popehat’s Ken White aptly noted when the existence of a plea deal was announced last month, a less powerful man would likely have had the book thrown at him.

Generally, poor people react and rich people are proactive. Petraeus is sophisticated and has assets; he could afford to hire lawyers to negotiate with the feds before they charged him. As a result, he was able to secure a pretty good outcome that controlled his risks. The feds let him plead, pre-indictment, to a misdemeanor charge of improper removal and retention of classified documents under 18 USC section 1924. That means even if the federal judge who sentences him goes on a rampage, he can’t get more than a year in federal prison — and, given that it’s a misdemeanor, will very likely get far less. The Factual Basis includes a United States Sentencing Guideline calculation in which the government and Petraeus agree he winds up at an Adjusted Offense Level of 8, which means the judge can give him straight probation.

It is very difficult to get a misdemeanor out of the feds.

Petraeus’ factual basis reveals that he could have been charged with much, much worse. The statement discusses his “Black Books” containing his schedules and notes during his command in Afghanistan; those books contained “national defense information, including Top Secret/SCI code word information.” (Factual Basis at paragraphs 17-18.) Petraeus, after acknowledging that “there’s code word stuff in there,” gave the Black Books to his biographer/girlfriend at her private residence. “The DC Private Residence was not approved for the storage of classified information,” the statement notes dryly. (Factual Basis at paragraphs 22-25.) He retrieved the Black Books a few days later after she had been able to examine them, and retained them. Thereafter, when he resigned from the CIA, he signed a certification that he had no classified material in his possession, even though he had the Black Books. (Factual Basis at paragraph 27.) Later, when Petraeus consented to interviews with FBI agents1 he lied to them and told them that he had never provided classified information to his biographer/girlfriend. (Factual Basis at paragraph 32.)

To federal prosecutors, that last paragraph of facts is like “Free Handjob And iPad Day” at Walt Disney World. First, you’ve got the repeated false statements to the government, each of which is going to generate its own charge under 18 U.S.C. 1001, which makes it illegal for you to lie to your government no matter how much your government lies to you. Then you’ve got the deliberate leaking of top secret/code word defense data to a biographer. An aggressive prosecutor might charge a felony under 18 U.S.C. section 793 (covering willful disclosure of national defense information) or 18 U.S.C. section 798 (covering disclosure of classified communications intelligence materials or information derived therefrom), both of which have ten-year maximum penalties. Those charges don’t seem to require any intent to harm the U.S. — only disclosure of information which could harm the U.S. if distributed. Other than that? You better believe there would be a conspiracy count for Petraeus’ interaction with his girlfriend.

If Petraeus were some no-name sad-sack with an underwater mortgage and no connections and no assets to hire lawyers pre-indictment, he’d almost certainly get charged a lot more aggressively than he has been. This administration has been extremely vigorous in prosecuting leakers and threatening the press.

So why is Petraeus getting off with a misdemeanor and a probable probationary sentence? Two reasons: money and power. Money lets you hire attorneys to negotiate with the feds pre-charge, to get the optimal result. Power — whether in the form of actual authority or connections to people with authority — gets you special consideration and the soft, furry side of prosecutorial discretion.

This is colloquially known as justice.

I pretty much agree with all of that. But, as I noted a few months back, when the results of the FBI investigation were released, there’s more to Petraeus’ record than that.

Of course Petraeus is getting special treatment; almost anyone else would have been charged and imprisoned long ago. But while the “we wouldn’t hesitate a moment to charge a private soldier who’d committed the same transgressions” argument is powerful, it’s not dispositive.

First, Petraeus was a national hero and served, to the best of my knowledge, quite honorably for more than four decades until his ignominious fall. The attorney general and president quite naturally have to decide whether his transgressions here merit prosecution given his long history of service. Additionally, especially for a Democratic president who never served in the armed forces, there’s the issue of the public backlash that would follow charging arguably the most famous American general of the postwar era.

My instinct is that people in the highest positions of public trust ought indeed to be prosecuted when they violate that trust. Putting the sainted David Petraeus on trial would send a powerful signal that no one is above the law and that we take safeguarding our secrets seriously. This wasn’t, after all, a situation where he skirted the law in misguided pursuit of the nation’s security; he did so for the most selfish reasons. To the extent that his long history of service to the nation counterbalances his transgressions here, it can be weighed at sentencing.

At the same time, however, there is the question of harm: How much actual damage was done in sharing the information he shared with Broadwell? It’s one I can’t answer.  While I can’t condone his violating his duty to share sensitive compartmented information only with those with the proper clearance and a mission critical need to know, Petraueus operated for years at the highest levels of the national security apparatus and was able to see the big picture. As a Reserve officer, Broadwell had a security clearance. Without knowing what sort of information he shared and how he expected her to use it, I simply don’t know whether the violations in question were merely technical—lots of information that’s publicly known or that would cause no damage if released to the average American is highly classified for various reasons—or egregious.

As more information has come to light, it appears that what Petraeus shared were essentially his highly detailed meeting notes. While it was both illegal and stupid, Petraeus presumably had confidence that Broadwell would use the information judiciously, selecting information that would shine a light on Petraeus the decision-maker while excluding any operational details outside the public domain. Petraeus shouldn’t have done that. But it’s not “espionage” in any meaningful sense, either.

There’s no value to the public in putting Petraeus behind bars. The $100,000 fine is a slap on the wrist for a man that probably commands that much for a single speech but also more than twice what the Justice Department requested.

Not answered in the reporting thus far is a key question: Has Petraeus’ security clearance been revoked? Surely, it should be. While I have no issue with the president and others seeking his advice on matters within his expertise, he shouldn’t hold a position of trust in our government again.

FILED UNDER: Law and the Courts, National Security
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. C. Clavin says:

    But selling single cigarettes on the street in NYC will get you the death penalty.

  2. DrDaveT says:

    There’s no value to the public in putting Petraeus behind bars.

    Well, no more than putting any other criminal behind bars, I suppose. I somehow don’t think that’s what you’re arguing here, though.

    there’s more to Petraeus’ record than that

    Yes, there is. There is the fact that he was at the extreme acme of “should have known better”, and in a position to do more harm than almost anyone else in uniform.

  3. edmondo says:

    Edward Snowden must be saying “WTF?” right now.

  4. Dave Schuler says:

    Should we conclude from this that all of the other generals and SES officials are sharing their classified journals with their mistresses, too?

  5. the Q says:

    So Doug, if Edward Snowden would have just given his docs to his girlfriend and relied on her judgement, he could be living in Santa Monica soaking up the rays? No harm, no foul. (BTW, Snowden is a hero IMO)

    To quote Vince Lombardi, “What the hell is going on here?”

    HRC lies blantanly to the POTUS and its “no big deal” to my fellow libs on another thread.

    Petraus perjures himself and you just look the other way, “no big deal, he’s too big to jail”.

    Maybe it should be called “Almost but not quite OUTSIDE THE BELTWAY”

    The “political class” is now going to be the enemy in the new “class warfare” screed.

    No longer is it rich/poor, land barron/rentier, bourgeousie/proletariat, its really going to be against Chelsea Clinton and her 700k gift salary for doing nothing…..Petraus and his selfish libido…..HRC dumping emails and collecting cash….no problem plebes, thats the way we do it in DC. Now go back to cheerleading for the new royalists Jeb and Hillary you hicks.

    I highly recommend to you boomers an old movie All the Kings Men….or google Willie Stark.

    Thats the next wave.

  6. CET says:

    From the perspective of someone who has little formal training in either law or ethics, it seems like the problem isn’t so much that Petraeus got the benefit of the doubt regarding intent and actual harm inflicted. The part that seems problematic is that the benefit of the doubt in these things tends only to apply to the powerful and well connected.

    Oh well, so it goes . . .

  7. the Q says:

    Sorry, Doug, its James I should be directing this to. My bad as they say.

    James, I am rather surprised at your gainsaying Petraus’ bad behavior.

  8. Andy says:

    Just as a point of fact, he plead guilty to a misdemeanor that is part of the espionage act, but nothing he did could be reasonably be called “espionage.”

    That crime is relatively minor – he should have received a much bigger punishment for obstruction of justice and lying.

  9. Modulo Myself says:

    Just checking: is it espionage in a meaningful sense when a CIA official reveals the existence of a torture program?

  10. Modulo Myself says:

    @Dave Schuler:

    Why else would they attend meetings except as a way to impress women with their classified intel?

  11. DrDaveT says:

    @Andy:

    That crime is relatively minor

    The crime he copped to would be “relatively minor” if it were what he actually did. The crime he actually did — knowingly passing highly-classified information to someone with neither the necessary clearances nor an operational “need to know” — is not a minor offense.

  12. michael reynolds says:

    Look, I recognize the “privilege” in this and obviously if he were a corporal he’d be in supermax somewhere now, but just because we’re brutal fools in punishing X doesn’t mean we need to be equally brutal in punishing Y.

    Minor crime, appropriate sentence. Let’s apply that same restraint to enlisted men (and cigarette vendors.)

  13. Franklin says:

    I think Schuler’s point is relevant here. If punishment is meant as deterrence, what does this sentence suggest to generals in the future? That we’re “a little serious” about classified info?

  14. c.red says:

    I have to disagree: this sends exactly the wrong message to, well, everyone. I’m all for innocent until proven guilty, but once guilt is proven, as in this case, the penalties should be more severe for those with wealth and privilege. In my opinion, that is a/the systematic fault in our whole justice system.

    If past service and the “question of harm” needs to be taken into consideration, that is what the Presidential Pardon is for.

  15. Turgid Jacobian says:

    No, this stinks to high heaven–there’s a reason that generals and the high and mighty have every concern taken care of–because ONLY THEY are IMPORTANT enough and SPECIAL enough to do the RIGHT THINGS.

    So, if we’re going to give them huge staffs of lackeys, buckets of money after their service ends, and more-or-less constant adulation, I think if they take all that and throw it away by showing classified info to their sidepiece? Ft. Leavenworth has room.

  16. Anonne says:

    If I recall correctly, Edward Snowden would come home and face judgment if he could get Petraeus’ deal.

    I think that this sends entirely the wrong message, and will not deter future misconduct of this nature – at the high levels, that is. Any unknown shmuck who screws around for secrets will get put away like Bradley Manning.

  17. Jenos Idanian #13 says:

    So, he got a Sandy Berger (obviously guilty, slap on the wrist) vs. a Scooter Libby (highly ambiguous circumstances, possibly improper conduct by prosecutor, jail time). Since he was tied to the Democrats, this should come as no big surprise.

  18. Mikey says:

    As more information has come to light, it appears that what Petraeus shared were essentially his highly detailed meeting notes. While it was both illegal and stupid, Petraeus presumably had confidence that Broadwell would use the information judiciously, selecting information that would shine a light on Petraeus the decision-maker while excluding any operational details outside the public domain.

    He doesn’t get to make that choice. It’s not his place and he’s not authorized to grant access. I don’t give a frog’s fat ass how much “confidence” he had. Plenty of people have been tricked into having that kind of confidence. We must follow established procedures for handling classified specifically because doing so reduces the risk of people falling for ruses and “social engineering.”

    This wasn’t some schmoe leaving the safe unlocked overnight in the SCIF or inadvertently carrying classified material out in his briefcase. Petraeus deliberately removed the materials–which are normally subject to a strictly documented chain of custody–from their proper storage place and transferred them to an individual not authorized to receive them. Then that individual kept them for some period of time in her private residence which certainly did not meet the extensive requirements necessary for accreditation as a SCIF. Then he lied to the FBI about having done so.

    He should have gotten jail time. Even if not that, at a minimum he should have a felony conviction. It’s shameful he got neither.

  19. Mikey says:

    @Anonne:

    If I recall correctly, Edward Snowden would come home and face judgment if he could get Petraeus’ deal.

    What Snowden did is so far beyond what Petraeus did that they are barely in the same universe, and what Petraeus did was pretty bad.

    But Snowden is to Petraeus as a hydrogen bomb to a Fourth of July firecracker.

  20. Davebo says:

    Forget Snowden, Martha Stewart has to be saying WTF! right now.

    That James believes Petraeus’ past service should allow him to flaunt the law without repercussions is sad but not exactly surprising.

    After all, GWH Bush pardoned Cap Weinberger “for all the things he didn’t do that I didn’t know about” and almost no one batted an eye. Dick Cheney is free to continue on any Sunday morning show spouting inane BS without question and Oliver North can host the show.

    In other words, the idea that you can delegate authority AND responsibility is permanently ingrained in the American and especially the Republican mind at this point.

    Hell, even the black president does it these days.

  21. Pete S says:

    @Dave Schuler: No, I don’t think so. I believe the correct conclusion is that they can start now since it is no big deal.

  22. James Joyner says:

    @DrDaveT: I think we vastly over-incarcerate in our system. But we should nonetheless put people in jail either to 1) prevent future crimes or 2) punish real harm done to society. I don’t think either applies here.

    @edmondo: Petraeus didn’t knowingly publish tons of classified material; so far as I’m aware, zero classified material was published or expected to be published.

    @Andy @Davebo: I’ve written quite a bit in the past about the “Martha Stewart” category of crimes. I despise this tactic, seeing it as creeping fascism.

    @michael reynolds: I basically agree except I don’t think a corporal would be in Supermax for this. Indeed, I don’t think he’d have gotten jail time and he surely would have been fined much less, even in proportion to his salary.

    @Modulo Myself: No, but the problem with revealing the torture program via dumping classified docs to the press is the damage it does to sources and methods.

    @Mikey: I gather this was a notebook he kept. Would that normally have been locked in a SCIF?

  23. C. Clavin says:

    @Jenos Idanian #13:
    Libby was indicted on 5 counts oconsisting of perjury, making false statements, and obstruction. He was convicted on 4 o the 5 counts. There was nothing ambiguous about it.
    Bush then let him off the jail time.
    If your opinions are based on lies, then your opinions are meaningless.

  24. DrDaveT says:

    @James Joyner:

    I think we vastly over-incarcerate in our system.

    Only nonwhites. Doesn’t apply here.

    But we should nonetheless put people in jail either to 1) prevent future crimes or 2) punish real harm done to society. I don’t think either applies here.

    With regard to (1), you really don’t think there would be a deterrent effect here? More to the point, you don’t think that this will serve as an anti-deterrent to future potential violators of similar stature?

    With regard to (2), I personally don’t think “but I missed everyone!” is grounds for pardoning people who fire off a few dozen AK-47 rounds in a supermarket parking lot. The penalties might not be as severe as for actual homicide, but it’s not a “2 years probation and a fine” offense. Before you respond that reckless gunfire is a much more severe crime, go back and re-read the criteria for something to be classified “Top Secret”. At least the guy in the parking lot was only going to kill a few dozen at most…

  25. Mikey says:

    @James Joyner:

    I gather this was a notebook he kept. Would that normally have been locked in a SCIF?

    If it had TS/SCI information in it, yes. It would (or should) have been classified and controlled in accordance with the applicable procedures. If it wasn’t, there’s another problem.

    It’s possible Petraeus’ residence did have an area authorized for storage–my understanding is this is true of several high-level officials who deal extensively with classified information. Certainly it would make sense for someone holding the positions he held. That would have made it a lot easier for him to take the notes out and give them to his lady friend.

  26. Jenos Idanian #13 says:

    @C. Clavin: Cliffy, I realize that your mind is like a steel trap (rusted shut), but the key witness against Libby has said that she was manipulated by the prosecutor, and has recanted her testimony after reviewing her notes says that he did NOT tell her Plame was CIA.

    Further, his “perjury” and “obstruction” boiled down to saying he didn’t remember certain conversations. Not that they didn’t happen or he remembered them differently than others, but that he didn’t remember them.

    So this case is like the Trayvon Martin and Michael Brown cases, where your initial declarations were proven wrong, but you could never bring yourself to admit you were totally, stupdily, laughably wrong. (In fairness, you didn’t fully deserve all those modifiers at first; it wasn’t until the truth started emerging that you should have retracted your earlier declarations, but you’re so stuck on stupid that you’re still insisting on the wrong facts in all those cases.)

    But back to my point… Petraeus got the Sandy Berger treatment here. And most of the outrage aimed at him is because his single greatest crime is that he embarrassed Obama.

  27. Anonne says:

    http://www.theguardian.com/commentisfree/2015/mar/05/petraeus-jail-leaks-edward-snowden

    It’s hard to overstate the shocking nature of the government’s case against Petraeus. The information that he gave Paula Broadwell, his friendly biographer with whom he was then having an extramarital affair, was among the most sensitive in the US government. According to the indictment, Petraeus gave Broadwell eight black books containing “classified information regarding 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 personal] discussions with the president of the United States.”

    Much of this was Top Secret, and some was SCI (Sensitive Compartmented Information) higher than Top Secret – and he admitted in his plea to lying to the FBI about his leaks, knowing that doing so was a crime in itself.

    Despite the gravity of Petreaus’ actions, he agreed to a single misdemeanor guilty plea for improperly “retaining” classified information, and prosecutors agreed to recommend a sentence of two years probation and no jail time.

    BS that this is a misdemeanor. They should let Chelsea Manning (formerly Bradley Manning) out right now, if this is the standard they’re using.