Sentencing Leakers: David Petraeus vs. Jeffrey Sterling

Comparing apples and oranges

On April 23, 2015, David Petraeus -- a retired four-star general, former commander of U.S. and NATO forces in Afghanistan, and former director of the CIA -- was sentenced to two years probation and a $100,000.00 fine for mishandling classified information. Petraeus pleaded guilty to a single misdemeanor charge based on his disclosure of classified information to his mistress, Paula Broadwell, who was writing his biography.

On May 11, 2015, former CIA officer Jeffrey Sterling was sentenced to 42 months in prison for his unlawful disclosure of classified information to James Risen, a reporter for the New York Times. Sterling was convicted at trial of nine felony counts of violating the Espionage Act and related offenses for leaking information to Risen about a classified CIA operation to undermine Iran’s nuclear weapons program.

The two sentencings, occurring so close to each other, prompted inevitable comparisons.  For example, Mark Berman, a reporter with the Washington Post, tweeted that Sterling was "sentenced to same prison time as Petraeus, plus 3.5 years.”  The theme of much of the commentary, such as articles here and here, was that treating Sterling more harshly than Petraeus was unfair because the two men had committed similar crimes.  

Many suggested Petraeus had received more lenient treatment simply because he, unlike Sterling, was powerful and connected. Sterling’s lawyers also pointed to the Petraeus case at Sterling’s sentencing, arguing that the two cases were comparable and that “Mr. Sterling should not receive a different form of justice than General Petraeus.” So what was the basis for the different sentences, and are the comparisons and criticisms justified?

David Petraeus

Facts of United States v. David Petraeus

While he was commander of military forces in Afghanistan, Petraeus maintained small black notebooks that contained his daily schedules and personal notes from briefings and meetings that he attended. During his time in Afghanistan he filled up eight such notebooks. They contained classified information including identities of covert officers, war strategy, intelligence capabilities and mechanisms, and diplomatic discussions, along with details from National Security Council meetings and Petraeus’ conversations with the President.

After Petraeus returned from Afghanistan and retired from the military, the Department of Defense began collecting classified materials that he had accumulated during his tenure. Petraeus never informed the DOD officials gathering his materials about his black notebooks, and kept them in his possession at his house.

In 2011 author Paula Broadwell was working on a biography of Petraeus. She and Petraeus, who was married, were also having an affair. In August of 2011, Petraeus gave the notebooks to Broadwell for a few days so she could review them. (Broadwell apparently has a security clearance, but it is unlikely her clearance would have authorized her to view all of the material in the notebooks.) None of the classified information from the notebooks ended up in the biography, which was published in 2012.

In October of 2012, during an interview with the FBI, Petraeus lied and said he had never provided any classified information to Broadwell. In the wake of the investigation and the revelation of his affair with Broadwell, Petraeus ultimately resigned from the CIA in November, 2012.  On April 5, 2013, pursuant to a search warrant, the FBI seized the black notebooks from an unlocked desk drawer in Petraeus' house.

Facts of United States v. Jeffrey Sterling

Jeffrey Sterling was a ten-year CIA employee with access to extremely sensitive information. In particular, he was deeply involved in a project known as “Operation Merlin,” a covert operation to undermine Iran’s nuclear weapons program. Merlin involved using a former Russian scientist, now living in the United States and cooperating with the CIA, to feed faulty nuclear weapons plans to Iran. The idea was to send Iran down some blind alleys in order to delay and disrupt its development of a nuclear weapon.

In the early 2000’s, Sterling began filing a series of personnel grievances and lawsuits against the CIA, alleging racial discrimination in connection with his employment and with CIA decisions about whether he could publish certain material in his memoirs. Over several years his lawyer made escalating demands to the CIA for financial settlements of the disputes, which the CIA refused.

During this same time period, Sterling began having meetings and telephone conversations with Risen. Sterling disclosed classified information about Operation Merlin to Risen and apparently gave him copies of classified documents. According to the evidence at trial, Sterling provided Risen with a distorted and inaccurate view of the operation, in order to make it appear the CIA had bungled the program and may have actually aided Iran rather than hindering it.

In the spring of 2003, Risen informed the CIA of his intention to publish a story about Operation Merlin. National Security Advisor Condoleezza Rice and other government officials met with Risen’s editors to express grave concerns about the national security damage that could result if the story was published. In light of the government’s concerns, Risen’s editors agreed to kill the story.

Risen was reportedly furious. Two years later he wrote a book about the CIA, State of War, in which he devoted a chapter to Operation Merlin and disclosed the classified information that his editors at the Times had agreed to protect in the interest of national security.

Comparison of the Two Cases: Apples to Apples?

The Petraeus and Sterling cases reached their denouements just a few weeks apart, with dramatically different results for the two defendants. But although it’s tempting to equate the two cases, as many have done, it is really a comparison of apples and oranges. Both involve the improper disclosure of classified material, but that's about where the similarities end.

Intent: A defendant’s intent is always an important factor when determining the appropriate charges and punishment for a given offense. The government’s evidence at trial was that Sterling intended to harm the government and was motivated, as the government put it, by “pure vindictiveness” and “spite.” Angry with the CIA over what he perceived as wrongful personnel and other actions, he disclosed highly sensitive material and painted a distorted picture of a covert operation in an effort to embarrass and harm the agency. In so doing he appears to have had little concern for the possible damage to national security that might result.

Sterling also plainly intended that the classified information he revealed would be publicly and widely disclosed. By giving the information to a prominent national security journalist for one of the nation’s leading newspapers, he maximized the likelihood that the sensitive, classified material would be made public – which of course also maximized the chance that national security would be harmed.

With Petraeus, there was no evidence of any malicious intent or desire to harm national security. It’s hard to say what exactly motivated him; probably a combination of ego, wanting to make sure that the historical record of his accomplishments was as full and accurate as possible, and a desire to please the woman with whom he was having a relationship.

But there was never any suggestion that Petraeus intended to cause any harm. There also was no evidence that Petraeus intended for any classified information to be made public; it appears he was trying to give Broadwell background information and context for the book. Even if Broadwell had included classified material in a draft, it’s likely that review of the proposed book by government agencies or by Petraeus himself would have caught it and stopped it from being published.  Petraeus (unlike Sterling) had no reason to think that the recipient of the classified material he disclosed had any desire or motive to reveal it to the world.

This difference in their level of intent also helps to explain the different charges of which the two men were convicted. The Espionage Act, the felony Sterling was found guilty of violating, includes a requirement that the defendant knew the disclosed information could be used to injure the United States and to benefit a foreign nation. Mishandling classified information, the misdemeanor to which Petraeus pleaded guilty, contains no such element.

Actual Harm Caused: The government maintains that the damage caused by Sterling makes his one of the most serious leak cases in recent memory. Sterling’s disclosures, according to the government’s evidence at trial, shut down an active covert operation and one of the few mechanisms the government had to restrain Iran’s nuclear ambitions.

Unlike other recent leakers, Sterling disclosed an ongoing, classified operation involving human foreign intelligence assets. The same type of operation had been used not only against Iran but against other nations as well. Former National Security Advisor Rice testified at Sterling’s trial about how important Operation Merlin had been and how damaging the disclosure of the program was. There was also testimony at trial, including from the Russian scientist himself, that as a result of Sterling’s disclosures the scientist and his family now live in fear that a foreign government may harm them in retaliation for his cooperation with the United States.

At Sterling’s sentencing, the judge noted that his leaks effectively disclosed the identity of a covert asset who was working with the CIA and to whom Sterling had been assigned. The judge observed that this kind of disclosure is one of the most serious breaches of a CIA official’s duty. It betrays the trust that an asset placed in the CIA and may make it more difficult for the government to recruit other foreign human assets in the future.

By contrast, by allowing Broadwell to read his notebooks, Petraeus appears to have caused no actual harm at all. As discussed above, none of the material was ever publicly disclosed, and there appears to have been little risk that it would be. Although allowing Broadwell to review the materials and keeping them in an unlocked desk in his home was a serious breach of the rules for handling classified information, it was more of a procedural violation than an actual betrayal.

Plea vs. Trial: Petraeus accepted responsibility for his conduct and pleaded guilty. Sterling never accepted responsibility for his conduct, took the case to trial, and was ultimately convicted by a jury. Defendants who plead guilty almost always get some credit from the government, as well as from the sentencing judge. This age-old concept is also built in to the federal Sentencing Guidelines, which provide significant benefits to a defendant who pleads guilty before trial.

A guilty plea is a sign of contrition and that the defendant has accepted responsibility for his conduct, behavior worthy of favorable consideration by the sentencing judge. In addition, by pleading guilty a defendant saves the government from the considerable time, effort and expense required to take a case to trial. In a case like Sterling’s, this is particularly important because the trial itself may require the government to reveal at least some classified information that it would prefer to remain secret.

Sterling’s lawyers argued that it would be unfair to penalize him because he exercised his constitutional right to put the government to its proof. But this simply gets it backwards: it’s not that a defendant who goes to trial is penalized; it’s that a defendant who pleads guilty gets a benefit. That has always been true, and is another factor that distinguishes the Sterling case not only from Petraeus but from other recent leak cases pointed to by Sterling’s lawyers involving John Kiriakou and Stephen Kim, who also pleaded guilty.

We don’t know what kind of plea discussions took place between the government and Sterling, but there’s little doubt that if Sterling had been willing to step up and admit responsibility early in the case he could have received a much more favorable deal and a more lenient sentence. Similarly, had Petraeus stonewalled the government and refused to plead, he very likely would have faced far more serious charges.

Personal background: A judge always takes a defendant’s personal history into account when fashioning an appropriate sentence. That’s one of the reasons that Presentence Reports are prepared, to give the sentencing judge detailed information about the background and accomplishments of the defendant. It’s also the reason people write letters to the sentencing judge in support of a defendant and urging leniency, such as the more than 400 letters that were sent to the judge who was recently preparing to sentence former Virginia Governor Bob McDonnell, attesting to McDonnell's good character and record of public service.

Petraeus came before the court after 37 years of serving the country in the military and, most recently, in the CIA. He was considered one of the most able military leaders in the nation and to have done an admirable job commanding forces in Afghanistan. That type of career of public service entitles a defendant to considerable credit. It makes his offense look all the more like an isolated lapse of judgment in an otherwise sterling career where he sacrificed a great deal for his country.

For his part, Sterling has some impressive personal accomplishments as well, including graduating from law school, his career at the CIA, and a subsequent successful career as a fraud investigator for an insurance company. But in terms of overall record and service to the nation, he is no David Petraeus. That is particularly true considering his efforts, near the end of his CIA career, to undermine and damage the agency and country he had sworn to serve.

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In sum, it’s much too simplistic to look at the two cases, see that they both involved leaks of classified information, and conclude that the different sentences are unjustified or arise from some improper reason. Every case is unique, and here there are substantial differences that explain the different sentences.

Actually, in both cases the sentences seem about right to me. In Sterling’s case, it’s worth noting that the sentencing guidelines actually called for a sentence of about 19 to 24 years in prison. The judge rightly recognized that in a case involving leaks to the media, as opposed to actual espionage against the United States, such a sentence would have been crazy. (Even the government seemed to acknowledge this and did not argue for a sentence within the guidelines, as it normally would, but simply asked that the sentence be “severe.”)

In light of the harm caused by Sterling’s conduct, his malicious intent, and the sentences received by other recent leakers of classified information to the press, Sterling’s sentence of 42 months appears eminently fair, if not a bit lenient. Even his own lawyer, after the sentencing, said that the judge "got it right.”

As for Petraeus, I’m not entirely unsympathetic to the view that he got a pretty sweet deal. This is particularly true considering he initially lied to the FBI about revealing classified material to Broadwell. Lying to the FBI can be prosecuted as false statements, a five-year felony. There were reports that the FBI agents working on the case were upset and thought that Petraeus should have been treated more harshly, given his lack of candor. That view has some force.

On the other hand, few defendants who end up entangled in the justice system have Petraeus’ record of a lifetime of distinguished and valuable service. The notebooks were his personal notes, not original classified materials, and one can see how he might have viewed them as somewhat less sensitive. And his lie -- a simple denial of guilt when interviewed by the FBI -- is a type of case that, as a matter of policy, the Department of Justice generally does not prosecute.

This was a serious screw-up by someone who knew better. But given his overall history, lack of intent to harm the country, lack of any actual damage resulting from his conduct, and willingness to accept responsibility and plead guilty, I can’t say that Petraeus should be going to jail or that his plea deal seems unreasonable.