Snowden and Petraeus: lenience for one hasn’t made returning home any more likely for the other

I would love to come home, and would do so if I could get a fair trial, but right now, I can’t.

                ~ Edward Snowden


Okay, so these days we once again hear a lot about how Edward Snowden would like to return to the US. His Russian lawyer, Anatoly Kucherena said at a recent press conference: “He has a desire to go back, and we are doing everything possible to make that happen.”

In contrast to what some of the media make it look like, this isn’t news. Snowden has been saying pretty much since day one that he would like to return to the US. This is confirmed by Jesselyn Radack, the national security and human rights director for the Government Accountability Project, who represents Snowden, as well as whistleblowers John Kiriakou and Thomas Drake. Radack, however, qualifies the statement:

[Snowden] would love nothing more than to return to the United States, but not to face an unfair, heavy-handed, largely secret prosecution under the Espionage Act — a strict liability crime, against which he cannot mount a defense based on his good intentions.

Glenn Greenwald, obviously annoyed that Kucherena’s statement is, once again, misleadingly reported as breaking news, comments on this in the Intercept.


No precedent for Snowden: the case of David Petraeus

What may have sparked renewed interest in Snowden’s wish to return to the US, is the plea deal that the US Department of Justice struck recently with David Petraeus. Petraeus is a former CIA director who passed on classified information to his biographer, Paula Broadwell, with whom he was having an extramarital affair. Petraeus recently pleaded guilty to “a single misdemeanor… for improperly “retaining” classified information, and prosecutors agreed to recommend a sentence of two years probation and no jail time.”

Since then, there has been much discussion in the press about what many see as the US government’s lenient treatment of Petraeus when compared to other leakers such as Edward Snowden, Chelsea Manning or John Kiriakou. Equally, there have been many people making the argument that the cases of Snowden and Petraeus don’t compare because one is a highly decorated ex-army general who “unwittingly” leaked classified information to a single person, while the other is a lowly government contractor who “stole” troves of classified documents and gave them to the public (via journalists).

As such, Debra J. Saunders in the American Spectator calls Petraeus an “American Hero”, arguing that “there are good reasons to spare Petraeus from prison,” not only because of his military prowess but also because his leak, apparently, “never really posed a risk” to national security and the information only made it “as far as” Paula Broadwell. So while “Petraeus was wrong to keep handwritten highly classified notes and even more wrong to hand them over” to his biographer/mistress this is seen as a lot less problematic than the public interest leaks of whistleblowers like Snowden and Manning.  Even though the “Black Books” Petraeus handed over to Broadwell contained

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.

That is exactly the kind of information the US government has been using as an argument to demonise Edward Snowden and the journalists who have been reporting on his documents. US officials keep insisting that details like the names of undercover operatives or cyber operations, which Snowden, in their view, has somehow made vulnerable to terrorists, are precisely what makes his leaks so dangerous to national security. Yet no such detail has ever made it into the public domain. For good reason: Snowden made it an explicit condition of his cooperation with the reporting journalists that such detail must not be disclosed. So rather than making it “gleefully…available to America’s enemies,” as former CIA spokesman Bill Harlow claims, Snowden seems to have taken better care of his material than Petraeus did, who – unintentionally or not – handled top secret information very leniently. And before anyone makes the argument that highly volatile information may be out there somewhere (with trusted journalists) thanks to Snowden and thus potentially at risk, note that:

former Attorney General Alberto Gonzales … [kept] classified information at his house; John Deutch, the former CIA director…[stored] classified documents on a home computer; and former National Security Adviser Sandy Berger…removed classified documents from the National Archives.

None of these people seem to have handled the classified information they were privy to with the diligence it is obviously due, yet none of them have face charges similar to those that Edward Snowden would face upon his return to the US.

It is also interesting how Petraeus’ supporters have been talking down the leak of documents which Pentagon Papers whistleblower Daniel Ellsberg correctly describes as “actually quite spectacular”, as well as the fact that Petraeus lied to the FBI which is a crime in itself. The “misdemeanour” that Petraeus agreed to as part of plea deal was that he had “improperly retained” classified information. Retained – that is kept. That’s not even a euphemism, it’s simply false; retained and “passed on”, as Petraeus did to Paula Broadwell, were quite different things last time I looked in a dictionary. “Retained” may cover that part of the charge which holds that Petraeus “stored” the identities of covert agents…in several unauthorized locations”. It does not, however, cover “disclosing [these identities] to an unauthorized person”.


More likely precedents for Snowden: Drake, Manning, Kiriakou

Retaining, is what NSA whistleblower Thomas Drake did with – as Jesselyn Radack points outunclassified information. Unclassified. Yet, Drake’s was considered an offence worth spending the rest of his life in prison. Drake was lucky; the charges were dropped after he, like Petraeus, pleaded guilty to a misdemeanour. However, the impact of the prosecution on Drake’s life was significant:

I had everybody that I knew turn their back on me. The everyday reality was the crushing possibility that I’d end up in prison no matter what I did.

Prosecution has had similar life-altering effects on other whistleblowers, such as Chelsea Manning, John Kiriakou and, of course, Edward Snowden, all of whom ended up in jail or exile. Petraeus on the other hand, will neither go to jail, nor will he have to leave the US. On the contrary, it is likely that he will be able to “focus on his lucrative post-government career as a partner in a private equity firm and a worldwide speaker on national security issues.”


Double Standards

Blatant double standards of what Peter Maass in the Intercept calls a “two-tier justice system in which senior officials are slapped on the wrist for serious violations while lesser officials are harshly prosecuted for relatively minor infractions” are obvious in the discrepant treatment of conscientious whistleblowers like Edward Snowden and pillow talkers like David Petraeus. However, that’s not going to make either the government or its affiliated media think twice about considering a similar deal with Snowden who – by many of them – is not considered a patriot or whistleblower. Unlike Petraeus, Snowden has been charged under the Espionage Act which means that, if put on trial in the US, he would have no public interest defence and hence no chance for a fair trial:

he would be barred by U.S. courts from even raising his key defense: that the information he revealed to journalists should never have been concealed in the first place and he was thus justified in disclosing it to journalists. In other words, when U.S. political and media figures say Snowden should “man up,” come home and argue to a court that he did nothing wrong, they are deceiving the public, since they have made certain that whistleblowers charged with “espionage” are legally barred from even raising that defense.

The same is true when the media make it sound as if Snowden’s return to the US is imminent – or more likely than it was the various times it was reported before. Sadly, Snowden still cannot – 20 months on – expect the same leniency as David Petraeus. As Jesselyn Radack writes:

The “kind of leniency” extended to Petraeus “is reserved for generals sharing information with their mistress-biographers — not normal Americans trying to expose government wrongdoing.”

Which is the actual problem:

The issue is not whether General Petraeus was dealt with too leniently…” says lawyer Abbe Lowell. “The issue is whether others are dealt with far too severely for conduct that is no different.

Thus, the real issue is, as Trevor Timm writes:

The government had the chance to hold Petreaus out as an example on the same felony Espionage Act charges they’ve leveled (unfairly) against every conscientious whistleblower they’ve indicted. Their answer? Leaking should no longer be a felony. Let’s make sure we hold them to that, and not only for CIA Directors.

Or, as Snowden’s ACLU lawyer Ben Wizner put it:

If Petraeus deserves exceptional treatment because of his service to the nation, then surely the same exception should be offered to Edward Snowden, whose actions have led to a historic global debate that will strengthen free societies.

Once that happens, Edward Snowden might be able to return home, despite what the more ludicrous arguments to the contrary claim. However, this is likely to take a lot longer than it’s currently being made out to be:

I’m very clear with Ed,” [Jesselyn Radack] says. “We are not talking about a one- or two-year resolution. It could be a decade before things significantly change for you. Because people have to calm the fuck down. That could take a long time.”


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