Mimesis Law
17 August 2017

Punishing Leaks: Determining Who Gets A Tummy Rub and Who Gets the Clink

Mar. 18, 2015 (Mimesis Law) — To no one’s surprise, Stephen Kim didn’t get a sweet deal like Gen. David Petraeus.  Their crimes were similar, Kim giving a Fox News reporter a classified report on North Korea showing that they were likely to test a nuclear weapon, and Petraeus giving his squeeze and biographer, Paula Broadwell, every secret he had about the nation.

Now that I think about it, their crimes weren’t similar. Petraeus’ disclosure dwarfed Kim’s, and yet Kim was sentenced to 13 months imprisonment, while the government promised Petraeus to make a non-jail recommendation at sentence.  Petraeus will be able to “continue his lucrative career working for an investment bank and giving speeches.”  Plus, hang out with the President, as he remains a trusted advisor, an expert on affairs of war.

As the New York Times said, it’s good to be “the most famous American general of his generation.”

But Stephen Kim’s lawyer, Abbe Lowell, decries this “double standard”

“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,” Lowell wrote in his two-page letter, which was dated March 6, just three days after the Petraeus plea deal was announced. “As we said at the time of Mr. Kim’s sentencing, lower-level employees like Mr. Kim are prosecuted under the Espionage Act because they are easy targets and lack the resources and political connections to fight back. High-level officials (such as General Petraeus and, earlier, Leon Panetta), leak classified information to forward their own agendas (or to impress their mistresses) with virtual impunity.”

There are other differences worthy of note. Petraeus, who was unquestionably a star in his own right before his downfall, had the opportunity to use his position and wealth to negotiate a sweet deal before being charged.  Kim, while a state department employee, didn’t have the star factor in his corner. Or the high level friends.

About the only thing going for Kim was that his disclosure to James Rosen was described by a government official as a “nothing burger.”  The information disclosed was, to pretty much everyone in government except the prosecutors, innocuous and harmless, even though its disclosure may have violated the Espionage Act, 18 U.S.C. § 793(d), because it was classified.  I might tell you that certain particularly delicious sandwiches are also classified, but then I would be compelled to invoke the ancient Latin maxim, si ego certiorem faciam . . . mihi tu delendus eris. I prefer not to.

The point is that the cushy deal given Patraeus makes the harshness of punishment for other government employees, from Kim to former C.I.A. officer John Kiriakou, who served nearly two years in prison for disclosing the name of a colleague involved in the agency’s brutal interrogation program, seem ridiculously severe.  The old nation of law, not men, thing seems to unravel whenever it happens to be a person upon whom the government smiles.

And Abbe Lowell is quite right, it’s a double standard. A flagrant, flaming, unjustifiable, steaming pile of hypocrisy.  And it’s the American way.

Mr. Petraeus, who charmed and provided extraordinary access to handpicked journalists and national security experts during his tours running the wars in Iraq and Afghanistan, was all too familiar with the currency of classified information in the battleground of public opinion. Journalists and think tank analysts who could be trusted to report favorably often got invited to sit in on his classified briefings.

Yet rather than stand atop tree stumps and scream of the unfairness, Americans seem to love Patraeus’ “comeback” after his fall from grace.  Now that this sordid part of his sordid affair is out of the way, he’s primed for greatness again, the White House hot for his thoughts because, as spokesman Josh Earnest says, “he is, I think, legitimately regarded as an expert when it comes to the security situation in Iraq.”  Stephen Kim, not so much.

Mr. Kim and Mr. Kiriakou are unlikely to have second acts in government or national security circles, and the prosecutions left them with huge legal bills.

No, it’s not fair. It’s not even close to fair. Some will see Patraeus as getting off too easy. Some will see Kim as being punished too harshly.  Most will still believe that the system works, despite all of this.

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