A Few Comments on the David Petraeus Plea Deal: What Money And Connections Buy You

David Petraeus, who suffered a fall worthy of a Greek tragedy when was caught leaking classified information to his biographer-girlfriend, has reached a plea deal with the feds, in the person of the U.S. Attorney's Office for the Western District of North Carolina.

As of now two documents are available online. There's the Information, which is the charging document the feds use when grand jury indictment is not required or when the defendant waives that right. There's also the factual basis — the narrative of facts to which Petraeus will admit. These documents reveal that Petraeus has agreed, in advance of charges being filed, to take a misdemeanor.

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.

Edited to add: Since I wrote this the actual plea agreement has become available. The most notable part:

8. The United States agrees not to oppose the defendant's request that the defendant receive a non-custodial sentence.

9. The parties jointly recommend the imposition of a two-year term of probation.

So, for those of your keeping score at home: Commander of U.S. Forces in a war zone provides classified documents to his biographer/lover? Misdo, two years probation. 25-year-old small-time musician sells half a pound of pot while carrying a gun? 55 years in federal prison.

  1. Lengthy, obscenity-laden SHUT UP tirade goes here.  

Last 5 posts by Ken White

Comments

  1. says

    "Your loyalty to the United States is demonstrated by your Lifelong Commitment to Public Service. A no-name sad-sack who did the same things would probably be doing it out of a grudge."

  2. Kevin Alexander says

    Also, having been in a high enough position he surely knows stuff that his higher ups don't want told so the best way to get him to shut up is to play nice.

  3. Joe Blow says

    Leaking classified might be legal in some circumstances. The question comes down to whether he had the authority to declassify information. There are guidelines but senior leaders – as the people with authority to classify or declassify – have a lot of discretion. The question then comes down to whether the leaked material was classified under somebody else's authority, that is the leaker had no authority to downgrade the classification, the authority belonged to another agency or major command within the military. That can be a tangled web to unweave sometimes.

    The question of lying to the government and security violations is separate. Sounds like they have him dead to rights there.

  4. Aaron says

    Holy crap. I can't believe he's getting off that lightly, especially ADMITTING all those things. You don't even have to be a "no-name sad-sack with an underwater mortgage and no connections". Any enlisted, or even probably O-6 and below would pretty much be certain to facing jail time. Friggin' Generals and their connections and privilege. Sure, a good bit of that is deserved when you get to that rank (better accommodations, the food, private dining areas, etc), but with this?! Even with no intent to harm, letting someone else see TS/SCI stuff?!!!! Even the slightest hint of that being improperly handled makes security freak out.

    *sigh* As you say Ken, money and connections.

  5. jackn says

    "Top Secret/SCI code " you don't see SCI in the press much. Basically, this is beyond Top Secret info, sci = Specially Compartmented Information. (or something like that)

  6. Dave Krueger says

    Personally, I think it has little to do with connections or money. It has to do with leniency in exchange for Petraeus keeping his mouth shut about other questionable governmental activities and abuses of power he is privy to.

    The government operates a lot like the mafia. The only real crime is revealing secrets and they go to great length to protect their own to keep them quiet.

  7. says

    Excellent analysis – great that y'all nailed this deal so quickly. Now I know why I have seen so many happy Assistant U.S. Attorneys at Disney World.

  8. albert says

    It's 'Sensitive Compartmented Information' (https://en.wikipedia.org/wiki/Sensitive_Compartmented_Information) Anybody read this without getting a headache?
    .
    @Ken
    "…"Free Handjob And iPad Day" at Walt Disney World…." !! Captain Hook notwithstanding, WDW could save loads of advertising $$ just by offering this simple service. In Japan, they have 'clubs', that offer this (no iPad, AFAIK). Only executives can afford the rates. Just look for the word 'health' in the clubs name….

  9. tweell says

    A bit of money – enough to have a decent lawyer, but not Popehat-class – and a LOT of connections. Petraeus can spill dumptrucks of dirt, and if he was going to go down hard, there'd be no reason not to take others with him. 'Misdemeanor plea, probation, and my client keeps his mouth shut.'

  10. says

    I would be curious to see if the Federal conviction rate takes a momentary drop. I'd be hard-pressed to send some guy away unless there was a body count, if I were on a jury today.

  11. TXDave says

    @Joe Blow,
    While Petraeus may have had the authority to downgrade the classification of the material, there are a few countervailing considerations. First, you don't go from TS/SCI to Unclassified in a single jump, ever. I speak as one with some knowledge of how the system works.

    Second, there's a review process for declassifying material, which takes time, often years. It's never a case of "oh, this isn't really classified, have a look."

    Third, leaking material that hasn't been properly declassified is never legal. The leaker may feel that it's morally right, but it's still a security violation. Note that I am not supporting leaks of classified material in any way, shape or form.

    Agreed that the 18 USC 1001 and false declaration are dead-to-rights.

  12. Alypius says

    I freak out when someone mentions letting anything "SECRET" go out, let alone TS and/or SCI (cf Manning, Snowden, et al). But, cynical bastard that I am, I'm not surprised at this outcome given who was on the phone with him on Sept. 11, 2012.

  13. says

    TXDave has it right. Being a classifying authority doesn't include the prerogative to say, "As for this– naahhh…." There's a standardized bureaucratic system with controls and protocols. For this reason, there's no ambiguity about whether P's ad hoc "declassification" is anything other than spillage.

  14. jfb says

    @TXDave:

    Third, leaking material that hasn't been properly declassified is never legal. The leaker may feel that it's morally right, but it's still a security violation.

    Right. I've been subject to those same provisions of USC 18. In a truly just world, Petraeus would be nailed to the wall for the next couple of decades. Instead, he'll spend a couple of months in minum security at worst, then have a nice second career as a "national security analyst" for a 24-hour "news" network.

    My late father-in-law, a Korean War vet, passed on this bit of wisdom – all generals lie all the time.

  15. gramps says

    If severity of sentence (proposed in this case) is the measure of the offense, Releasing Classified Documents, yada yada, is not as bad as lying about a stock tip as did Martha Stewart. She actually served 5 months in the federal joint. It looks like the fix is in, the general will skate.

  16. Sinij says

    I think Ken approaching this from the wrong angle. It isn't that Petraeus go off easy, it is that everyone else going through US Justice system gets ridiculously harsh sentences.

    Like in the linked example – 55 years is appropriate sentence for raping, looting, and pillaging a small village. Twice. Not some questionable pot charges.

  17. Wesley says

    I don't really see this as a problem of Patraeus getting off "too light," but a condemnation of how obscenely disproportionate most other prosecutions and sentences are — as well as the brutal reality of the overwhelming power wielded by "prosecutorial discretion."

    EDIT: Hah, one minute late.

  18. says

    Money and power? Come one, the guy was career military. You don't get rich doing that, and I haven't read anything that he inherited money. As for the power part, where does that come from? Sure, the guy held lots of positions of power in the course of his career, but I suspect he is fixing his own flat tires these days.
    So why the light sentence? I suspect four reasons. First, pretty much everybody in DC leaks to the press, and pretty much everybody knows it. Second, there was no real harm done; it's not as if he was passing secrets to the Russians or something. Third, he does have a lifetime of mostly honorable public service (by all accounts, although I note that with all that fruit salad on his chest he has only one combat related decoration, and a (relatively) minor one at that). Fourth, he probably does know where a lot of bodies are buried, so why give him a motive for pulling down the temple.

  19. Docrailgun says

    "Commander of U.S. Forces in a war zone…" I think you've hit it right on the head here, Ken. Personally I think that this is a way for the DoJ to bow out of this gracefully after someone (or many someones) put a lot of pressure to cut Caesar a break.
    I'm thankful to the general that he cut Skeletor (Rumsfeld), Beast-Man (Cheney), and his commanding officers (I forget who those were) out of the loop after the war, he probably kept things from getting any more out of hand than they did. If you want to believe his biography, he could have easily started a military coup if he had felt like it.
    All that said, they had to punish him SOMEHOW. A couple of years of probation is still an embarrassment to the great man. I bet he regrets not crossing the Rubicon when he had the chance. The Republicans would probably love having a Dictator For Life, as much as they love their Putins and Bibi Netenyahus of the world.

  20. TNG says

    What harm is done? Well, I imagine that those lower on the chain will feel less gravitas in leaking information of their own. While one may not obtain Gates-like levels of wealth in the military, I sincerely doubt he counts his pennies too closely – and he'll make quite the salary now as well. Yes, he has significant knowledge, both useful for the government and possibly dangerous to the government, but that's no excuse to shrug and ignore the matter. Other servicemembers have lots clearances, and freedom, for far less.

  21. Robert says

    Hell, the only reason he was prosecuted in the first place was because he managed to piss off Obama administration. Had he been in their good graces this wouldn't have even gone to trial.

  22. says

    @Roscoe

    Money and power? Come one, the guy was career military. You don't get rich doing that, and I haven't read anything that he inherited money.

    Annual pay for an 0-10 with 38 years is $19,762.50/mo, which is $237,150/yr. That's adequate to retain even Popehat-level representation.

  23. says

    TNG – When I said there was no real harm done, I meant "real" harm. In other words there was no intent to damage national security and no damage to national security. The secrets at issue never became public, and there was never any intent to make them public (although they would have eventually shown up in sanitized form in a biography).

    David Byron – A guy making 240k can afford to hire Popehat level representation, but not for very long. People have no idea how expensive protracted litigation can get, especially when top legal talent is involved. Petraeus' level of income does not represent the type of wealth where people can buy their way out of trouble.

  24. jdgalt says

    I don't see any possibility that info he knows about his superiors played a part. If a perp threatens that kind of blackmail, the gloves come off and he serves life someplace like Pelican Bay, where no word he ever speaks will see the light of day.

  25. Ryan says

    A guy making 240k can afford to hire Popehat level representation, but not for very long. People have no idea how expensive protracted litigation can get, especially when top legal talent is involved. Petraeus' level of income does not represent the type of wealth where people can buy their way out of trouble.

    Zimmerman is a million dollars in debt.
    Probably should have gotten a public defender.

    QUESTION: Can the judge reject the plea agreement as too soft?

  26. says

    @Ryan:

    A judge can refuse to follow the sentencing recommendation, and can sentence him to up to a year. But a judge can't change what he's charged with.

  27. Joe Blow says

    @TXDave "First, you don't go from TS/SCI to Unclassified in a single jump, ever. I speak as one with some knowledge of how the system works."

    Sure. That's how it is for mere mortals. But I've seen this up relatively closely too, and have watched a couple agency heads in action. When one of them who actually owns original classification authority decides to declassify or leak something that they have authority over, they simply drop it. It's no months long process. The security officer may have a beef with that, other agencies may have a beef with it. But the Attorney General wont, unless the leak pisses off the WH, or some other agency.

    If the same person decides to start handing out something that belongs to and was classified by another agency, or which is subject to one of the ecumenical classification guidelines that applies across the government, then yeah, there may be hell to pay. But a downward deviation in how material within the scope of an original classification authority, either for outright declassification or some type of unspecified sharing, isn't uncommon. I don't think it's cut and dried in Petraeus' case without knowing exactly what he provided and exactly who had original classification authority over that material. His misconduct and squirellyness was such that I'm glad he was removed, but as a factual matter I would recognize that what goes in a plea deal is stipulated and tactical, not necessarily a reflection of a by-the-numbers exercise reflecting reality.

    Hypothetical Example: The Secretary of State decides to leak, as a plain document, no markings, some stuff that as of two minutes earlier was classified under State Department original classification authority. Nobody will say a thing because it is within his discretion, and he can choose to make a downward departure from the rules he issued earlier, which were also within his discretion (and yes, the security officer will stamp his feet but it won't go anywhere). It'd be hard to prosecute the guy for exercising discretion to break rules that were reserved to his discretion, and a bit circular to boot.

    But say a Deputy Undersecretary in State decides to leak that somebody is affiliated with the CIA, a fact that may be classified by the CIA. There will be hell to pay and there will be a leak investigation and charges, because Deputy Undersecretary or not, the Secretary of State didn't have the authority to originally classify, or eventually declassify that information. Only the CIA did and they didn't want it shared.

    For that matter, the Deputy Undersecretary may run into trouble if he attempts to leak State Department documents because he is not an original classification authority, and because there is an element of political pull in there as well and he may run athwart of the Secretary, who really owns all the discretionary authority in that agency.

    I'm not saying this is consistent with a rule of law sort of approach or that it's a good thing, just that when these folks get to a certain level, they have a tremendous amount of authority (and the decision to classify a lot of their own stuff is an exercise of discretion, not a mandatory call) and they get an enormous amount of leeway on what they choose to leak or declassify, so long as no other agency's ox is being gored. If it were otherwise, half the cabinet secretaries and agencies heads involved in national security activities over the last 25 years would be in jail.

  28. Smut Clyde says

    Money and power? Come one, the guy was career military. You don't get rich doing that, and I haven't read anything that he inherited money.

    He moonlights as a sought-after speaker on leadership and integrity.

    I am impressed how many of Popehat's commenters seem to read the posts on TEMPEST-shielded terminals.

  29. Michael says

    I suggest that this was a deliberate strike to preempt his political career and/or turf him from the CIA. I don't know who he pissed-off, but he sure looks like the first high profile victim of NSA parallel construction. The conviction ends his security clearance and so the threat. A heavy sentence would risk blowback on the parties responsible.

  30. LynnFoster says

    I agree with Ken’s post in spirit and that what Petraeus did was worst than what was previously knows. But a couple of points –

    1 – I agree that generally “Justice is what you can afford” but there are no comparable cases of poor people being hit with these charges because access to TS/SCI information is confined to the powerful or those working directly for them.

    2 – The investigators know that Petraeus was thrown under the bus politically and that was the reason for him leaving the DCI position. This type of thing done in the midst of politics is different than treasonous acts that the FBI is normally looking for. For example, former NSA Sandy Burger did something worse (and politically motivated) and less punishment – a fine and loss of his clearance for 3 years.

    3 – I haven’t seen these briefing books but the information isn’t the same as a TS briefing. Some of the TS information may be buried in other information without giving away the “tactical” value of the information. I knew guys in the Army that didn’t want to be bothered with the paperwork of classified briefings and would just give a presentation on newspaper items by calling special attention to key portions with a wink wink. The same information that was in Top Secret briefings was usually in the newspaper but buried among other information that was wrong or useless.

  31. Robert says

    Via Angus
    March 3, 2015 at 9:15 pm

    I am a ruminati!

    Via Angus = eight letters. (8*3)+3=27. 27/9=3. Triangles have 3 sides. Ruminati confirmed!

  32. Terry Cole says

    Compare the treatment of Petraeus with that of Oliver North. As I think TIME put it, North justified his actions as against the law but authorized by the NSA and justified by the needs of national defence. He also admitted lying to Congress, for the same reasons, effectively clothing felonies in Old Glory.

    Every member of Congress scurried away. His testimony was privileged so those convictions which were entered against him were vacated on appeal. And who assisted him in this? The ACLU, no less.

    Whatever else Petraeus was, he was a very effective commander in that theatre of operations, his girlfriend was not a realistic security risk, and I have no doubt whatsoever that if push came to shove he'd be able to do something similar.

    Like North, I suspect Petraeus would happily be a martyr to the law if that brought stupid laws into such disrepute that those who harassed him were execrated by the patriotic public. In other words, never mind the dirt he could dig up; just standing before the Senate, waiting for the blow, would vindicate him in the eyes of voters.

  33. Smut Clyde says

    Whatever else Petraeus was, he was a very effective commander in that theatre of operations

    Imagine the state Iraq would be in today if Petraeus had put as much effort into fighting a war as he put into impressing journalists, boffing biographers, and generally burnishing his reputation.

  34. bkd69 says

    Just as an editorial aside, I should like to see the phrase "while carrying a gun" (and similar statements) replaced with "exercising his second amendment rights," as that phrase, for a large part of the right, is semiotically equal to the phrase "exercising his first amendment rights" to a large part of the left. Of course there're exceptions in both cases, but it is, for the most part, true. And I'm not speaking for here in particular, necessarily, but all over the place.

    Likewise I'd also like to see appropriate statements from police chiefs and police union reps accompanied by an image of Judge Dredd.

  35. Nathan says

    @LynnFoster

    "1 – I agree that generally “Justice is what you can afford” but there are no comparable cases of poor people being hit with these charges because access to TS/SCI information is confined to the powerful or those working directly for them. "

    It really isn't. TS/SCI classification stuff is handled by 19 year old E-3s all the damn time.

  36. En Passant says

    Joe Blow March 3, 2015 at 7:30 pm wrote:

    … If it were otherwise, half the cabinet secretaries and agencies heads involved in national security activities over the last 25 years would be in jail.

    You say that as if the result would be a bad thing.

  37. Nicholas weaver says

    I'm trying to understand what CIA head recently has had good operational security?

    In this case, the simple presence of Petraeus's black books (presumably for the same reason that high-end escorts keep black books, to both remember and to blackmail) in an unsecured location were a disaster waiting to happen.

    High up on the list of "people foreign intelligence would love to black bag", taking advantage of "the police are 10 minutes away" response time would be a former head of the CIA who just had his personal SCIF removed. These black books contained the names of undercover agents, if a foreign intelligence agency got them, heads would literally roll.

    But then again, why should we be surprised? Different rules for the bosses is far too common.

    One example: One of the most damaging leaks in the past few years was "Stuxnet was a US/Israeli operation". You know, the malcode that destroyed Iranian centrifuges in a cyber attack?

    This didn't just provide attribution for an otherwise unattributable attack [1], but also set some very dangerous precedents which may be used against us (if its kosher for the US to sabotage with a cyber attack, its kosher for others to do unto us), and also acted as the attribution key for a whole host of other NSA activities, including targets hit by Flame, evidence that the Equation Group is the NSA, etc…

    It was far more of a disaster to US interests that the cables leaked by Manning.

    But as the "Stuxnet was the US" leak probably came from General Cartwright, and made the administration look good, he got an even milder slap on the wrist: the poor general no longer has a security clearance.

    [1] Lets face it, although the US and Israel were the prime suspects, there were others. France, for example, would have the skill and motive. Heck, Russia could have done it. Russia may love the Iranian nuclear program as a distraction, but damn the Russians wouldn't want those crazies with a bomb: Moscow is only 1700 miles as the missile flies from Tehran, and any nuclear missile which could hit Tel Aviv could hit plenty of targets in Russia.

  38. albert says

    @Smut Clyde
    @Terry Cole
    "…Whatever else Petraeus was, he was a very effective commander in that theatre of operations…"
    "…Imagine the state Iraq would be in today…"
    .
    Exactly the same state it's in now. Iraq is FUBARd now for political reasons, not military ones. I'm no militarist, but our military does the best it can, given the situations they are thrown into. No other organization applies more study and thought to their profession.
    Whether Bush/Cheney, Obama, it doesn't matter. They're all douchebag politicos who shouldn't be allowed anywhere near the military.
    .
    God help us if Hillary gets elected. Actually, it should be apparent now to anyone with at least two brain cells connected together, that it doesn't matter who's in the White House, or inCongruous, we're always gonna have wars. Wars are non-partisan operations, orchestrated by psychos.
    ….

  39. LTMG says

    Maybe I missed it, but I'm watching for what charges the girlfriend will get. After all, she is said to be subject to the UCMJ. All I've read is that her promotion to lieutenant colonel is on hold. While Petraeus may incur 2 years Federal probation, Mrs. Petraeus has put hubby in the doghouse for life.

  40. I Was Anonymous says

    Maybe Snowden can use this in his negotiations with the US.gov and ask for a misdemeanor as well.

  41. albert says

    @I Was Anonymous
    "…Maybe Snowden can use this in his negotiations with the US.gov and ask for a misdemeanor as well…." :)
    .
    Depends on what he's got on 'em. Snowden is a popular whipping boy right now, as evidenced by the number of douchebags calling for his execution. His value as a 'traitor' might outweigh any damaging information he may have. OTOH, he may already have reached an 'agreement' with his 'enemies'; we'll have to wait and see what else he releases.
    .
    Petraeus may have 'played' in hold card already; wonder if Snowden has one?

  42. albert says

    @Ken
    Am I correct in assuming that Petraeus lawyers would have approached the Feds before they had a chance to charge him? How does this work?

  43. says

    @Albert: yes. At least in federal white-collar investigations, it is common to approach the government to negotiate in advance of them making a charging decision.

  44. MrBill says

    @LTMG – as best I can tell, MAJ Broadwell is now Ms. Broadwell. I tried to look her up in Army Knowledge Online using the people search and she's nowhere to be found. The article I saw referred to her as a former Army Reserve officer. So, she's out of the service altogether, most likely. I don't think she had enough qualifying years to retire. My guess is that she resigned her commission – possibly with the understanding that if she did not, there were worse things that could happen to her. Whether UCMJ action was one of those things would depend on whether she was in a military status when she did any of the bad stuff.

  45. jb says

    And now Hillary.
    Will she take the misdemeanor, or try to wait out a statute of limitations ala
    Starr whitewater papers or FBI files on congresssmen?
    Maybe the Clitons can have Sandy Burglar eat the bytes.

  46. says

    Sensitive to classified emails off the Government servers and sex scandals- Are we talking about David Petraeus or Hillary Clinton?

  47. Marcus T. says

    Notwithstanding allusions to seedy theater and intrigue, there are several differences as it involves Ms. Broadwell. She was not some Russian honeypot. Ms. Broadwell is a West Point graduate, officer in the U.S. military and counterterrorism/COIN specialist. She also has experience with the JTTF, JSOC and presumably the clearances to go with that.

    With respect to General Petraeus, whom you casually compare to a "25 year-old musician/drug-dealer"- well do I really need to repeat his resume and accomplishments? His sacrifices and contribution to our country?

    We call these stubborn things facts or at a minimum extenuating circumstances and considerations. Maybe, maybe, even "perspective" that would at least temper, or cause one to cogitate on their remarks.

    Now, don't take this to mean I agree with what was done. Both General Petraeus and Ms. Broadwell broke trust, personal codes, probably UCMJ Article 134, common sense, decency and are obviously liable under USC. But spare me the rants and hand-wringing over the sentencing.

  48. jfb says

    @Nathan:

    TS/SCI classification stuff is handled by 19 year old E-3s all the damn time.

    And if any of those19-year-old E-3s take that stuff home with them, or loan it to their girlfriends, and then lie about it to federal investigators, they won't get off with anything near as light as a misdemeanor and probation. That's Ken's point. Because of his position and influence, Petraeus can negotiate a deal that those E-3s cannot, and thus receive much lighter treatment than they would as a result.

    That's what's so damned infuriating about this. I've sat through multiple briefings explaining just how fucked I would be if I simply lost classified information, never mind passing it around deliberately. This sentence is a goddamned joke.

  49. Nathan says

    @jfb

    Right. I think Ken's dead on here. I was disputing Lynn's assertion that the only people who get to touch TS/SCI stuff is generals or their personal aides or something. It just ain't so.

  50. I Was Anonymous says

    What @jfb said.

    When I held a clearance, we were informed of major nasty consequences if we simply left classified materials unattended… in a secure classified area; much less removing them and providing them to people who were not authorized to see them.

    And it was emphasised that "major nasty consequences" could include such fun things as an all-expenses paid "vacation" at Ft. Leavenworth.

  51. jfb says

    @Nathan – Ah, got it. I have trouble reading for comprehension sometimes, especially on subjects like this where my objectivity goes out right out the window.

  52. says

    It's fairly ridiculous he was charged at all. This is not Sandy Berger sneaking out damaging information in his pants, this not Hillary Clinton completely flouting the record requirements that go back 70 years, this is not even even Scooter Wilson *not* leaking the fact non-covert CIA agent Valerie Plame sent her husband to Nigeria (but disagreeing on his recollections of some conversation with a reporter, which was apparently enough).

    All he did was let a biographer see some information that is frankly not important at all and only considered secret for bureaucratic reasons. This falls under "lapse in judgment with no security implications."

  53. jfb says

    @Marcus T:

    She also has experience with the JTTF, JSOC and presumably the clearances to go with that.

    Clearance is necessary but not sufficient. Unless she had a "need to know", he should not have granted her access to that information.

    His sacrifices and contribution to our country?

    …do not give him a free pass. He could have personally liberated Baghdad and single-handedly crushed al Queda and I'd still demand that he be nailed to the wall over this. Especially because, as a senior military officer and head of an intelligence agency, HE SHOULD GODDAMNED KNOW BETTER.

    Punishment should be determined by what you did, not who you are.

  54. Marcus T. says

    @jfb

    I suspect we mostly agree. He broke a code and violated the law. My point was not that the General should get a "free pass". It is that his accomplishments are a consideration in sentencing (by the way, that applies if he was a damn E-2). That is partially what "guidelines" are meant for.

    This is not some oaf who sat in his mom's basement, got stoned every weekend, had some brushes with the law and made no contribution to society. Quite the contrary, he spent a life in service to others and that should be considered.

    I'm just growing a little tired of the "one size fits all" deflection and illusions to how "the little guy" always gets screwed.

  55. TNG says

    Sure, he has accomplished a lot, but is his standing and experience not all the more reason to hold him accountable? Sailors in prototype (part of the nuclear training pipeline) are censured far more than this for a lot less than passing along books of compartmentalized information.

  56. Cromwell Descendant says

    Actually, she was shadowing him as a biographer in an official capacity and with clearance.

    Obviously the lying to investigators part would be handled differently if he was not a popular public figure, but I don't think that has any relation to money (he isn't known to be rich) or "connections." He's a bigger public figure than whoever his "connections" would be. And this whole escapade had a somewhat political start, and they did find something to come at him with in the end. At the same time, actually sending him to prison as the result of an investigation widely perceived as politically-motivated would be problematic, considering his popularity.

    But the actual leaking stuff is not clear at all. She had access to most of that data while in Afghanistan shadowing him. They would have had to prove for each specific thing that she didn't have official access to it already while in Afghanistan. That would be almost impossible, because she was in the room when this stuff was out and being worked on, in an official capacity. And any conspiracy charge would be therefor fall; even if you think you can prove she never had access to some of it, how can you show that they knew it? If most of it she did have prior access to, (with clearance) which is the case, then it is hard to find what they were conspiring to do. This wasn't a private biographer doing an after-hours project, this was somebody with a clearance who was officially shadowing him, in Afghanistan, in the room during the time that the notes covered. That is why she was accessing them later, to double-check the times and dates in her own notes.

    So if they wanted to send him to prison, the improper storage in his house is the only one that is related to the secret stuff, and that would only get him a year or two anyways. The lying to investigators is a bigger charge, but that might be hard to convict a popular man on. It may be that it is unclear to him that he is even allowed to admit to the existence of compartmentalized information to the FBI agents, who have no need to know. That may or may not be a good legal defense, but it is enough for a jury when it is somebody popular and regarded as a national hero. So even that might be a total bust at trial.

    It seems instead that Patraeus accepts an end to his political career, the prosecutor gets to mark it as a victory, and the nation is spared an absurd trial that almost nobody wants and would probably end in acquittal and embarrassment for all.