TMCP on the hot seat

TMCP on the hot seat

by digby

I am not the biggest fan of The Man Called Petraeus, but I think this another case of government overreach. If he is prosecuted it should be for something serious not this affair nonsense:

WASHINGTON — The F.B.I. and Justice Department prosecutors have recommended bringing felony charges against retired Gen. David H. Petraeus for providing classified information to his former mistress while he was director of the C.I.A., officials said, leaving Attorney General Eric H. Holder Jr. to decide whether to seek an indictment that could send the pre-eminent military officer of his generation to prison.

The Justice Department investigation stems from an affair Mr. Petraeus had with Paula Broadwell, an Army Reserve officer who was writing his biography, and focuses on whether he gave her access to his C.I.A. email account and other highly classified information.

F.B.I. agents discovered classified documents on her computer after Mr. Petraeus resigned from the C.I.A. in 2012 when the affair became public.
[...]
But investigators concluded that, whether or not the disclosure harmed national security, it amounted to a significant security breach in the office of one of the nation’s most trusted intelligence leaders. They recommended that Mr. Petraeus face charges, saying lower-ranking officials had been prosecuted for far less.

I wonder when we'll see an indictment of Leon Panetta? Or John Brennan, for that matter?  Or any number of administration members who leak classified information all the time when they are trying to build public support or justify controversial actions?

As Trevor Timm says in this piece:

[A]ll of Petreaus’s powerful D.C. friends and allies are about to be shocked to find out how seriously unjust the Espionage Act is—a fact that has been all too real for many low-level whistleblowers for years.

By all accounts, Petraeus’s leak caused no damage to US national security. “So why is he being charged,” his powerful friends will surely ask. Well, that does not matter under the Espionage Act. Even if your leak caused no national security damage at all, you can still be charged, and you can’t argue otherwise as a defense at trial. If that sounds like it can’t be true, ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. The judge in his case ruled that prosecutors did not have to prove his leak harmed national security in order to be found guilty.

It doesn’t matter what Petraeus’s motive for leaking was either. While most felonies require mens rea (an intentional state of mind) for a crime to have occurred, under the Espionage Act this is not required. It doesn’t matter that Petraeus is not an actual spy. It also doesn’t matter if Petraeus leaked the information by accident, or whether he leaked it to better inform the public, or even whether he leaked it to stop a terrorist attack. It’s still technically a crime, and his motive for leaking cannot be brought up at trial as a defense.

This may seem grossly unfair (and it is!), but remember, as prosecutors themselves apparently have been arguing in private about Petraeus's case: “lower-ranking officials had been prosecuted for far less.” Under the Obama administration, more sources of reporters have been prosecuted under the Espionage Act than all other administrations combined, and many have been sentenced to jail for leaks that should have never risen to the level of a criminal indictment.

It's certainly only right that Petraeus be charged if lower level "leakers" have been. But nobody should be prosecuted under this authoritarian piece of garbage known as the Espionage Act. They classify everything in Washington, including their dinner menus and laundry lists.

They use the laws against leaking very capriciously and if Petraeus is charged it will be simply to prove that they don't just chase low level people with it, even though that's clearly the case 99.9% of the time and will continue to be so. After all, if Petraeus had consciously leaked classified information to the New York Times to valorize members of the administration you can bet he wouldn't be prosecuted for it. In fact, he probably did, many times. This sexy story is an easy one that only reflects on his personal peccadilloes.  And it will be catnip for the adolescent Villager busybodies to obscure the serious issues at stake while marching around self-righteously proclaiming it proves something about equality under the law. And the most sickening thing about it is that Petraeus will be the sin-eater that proves official Washington doesn't protect the powerful --- except, of course, it does. And will.  Unless sexytime.

I won't cry if Petraeus is charged and has to go through all that.  He's part of the power structure that supports this nonsense. But I won't be cheering it either.  It's a sad and sordid little personal story about which I really could not care less.


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