Petraeus, justice and Washington’s culture of leaks

Two weeks before David Petraeus resigned as CIA director on Nov. 9, 2012, his fate was already sealed with the FBI. In an interview at his CIA office two weeks earlier, the retired four-star general lied to its investigators.

That is what it says in a damning statement of facts issued Tuesday by the Justice Department and signed by Petraeus as part of a plea agreement under which he faces a $40,000 fine. But viewing the Petraeus case in a vacuum – a powerful and ambitious man falling from grace – misses an important larger point: Leaking confidential and classified information is engrained in our political culture. The enforcement of laws against it is inconsistent, hypocritical and often enables excessive secrecy.

Lying to the FBI is a serious matter. Even some of Petraeus’s staunchest defenders are disappointed in him. Rep. Jason Chaffetz, the Republican chairman of the House Committee on Oversight and Government Reform, told me, “It’s about time it came to a conclusion, but I am disappointed that he broke the law. I would have expected more from him.” Chaffetz was one of the lawmakers who first publicly asked the FBI why it was taking so long in its investigation into the retired general.

Petraeus was wrong not to tell agents that he gave his biographer and lover, Paula Broadwell, eight “black books” of personal notes that contained the identities of covert officers, classified details about war strategy and intelligence capabilities, and even notes from Petraeus’s discussions with President Barack Obama. But the investigation that yielded that lie looks trivial.

For one thing, Broadwell did not end up disclosing any state secrets to the public. When Petraeus resigned, Obama himself said the circumstances of the retired general’s affair did not damage national security. The Justice Department’s own statement of facts says, “no classified information from the aforementioned black books” appeared in Broadwell’s book, “All In: The Education of David Petraeus.” It was even sold in 2012 at the CIA’s bookstore.

Petraeus supporters who spoke to me Tuesday added that giving the black books to Broadwell, who herself had lower-level security clearances, was not that different from the arrangements often reached between senior government officials and Washington’s journalist corps.

“He gave those books to Broadwell so she could check her facts, the dates, that kind of thing,” said Jack Keane, a retired Army general and one of Petraeus’s closest friends. “I don’t see how this is different than when other senior national security figures give notes and material to prominent authors.”

For an FBI that has to enforce the law against the unauthorized disclosure of secrets in this environment, it must be maddening. But it is also part of the fabric of the national security state. Leaks are how the mid-level sends messages to the top level. Leaks are how senior bureaucrats and junior senators press favored policies and carry out grudges. Giving sympathetic authors access to state secrets is also how powerful generals and cabinet secretaries burnish their images.

Case in point: Last summer a federal judge ordered the Obama administration to release a classified memo on the legal justification for its drone attacks because officials had spoken publicly about its contents so often it was no longer a secret.

If the decision of which leakers to investigate and charge seems arbitrary, then the punishments they receive are even more so. While Petraeus is unlikely to spend time behind bars, John Kiriakou, a former CIA employee who pleaded guilty to disclosing the identity of an undercover officer, was sentenced to 30 months in federal prison – even though the employee’s identity was never made public.

Stephen Kim, a federal contractor, went to prison for a year after leaking secrets about North Korea to a Fox News reporter. Jeffrey Sterling, a former CIA officer, is facing a longer prison term for leaking secrets to a New York Times reporter.

Steve Aftergood, director of the project on government secrecy of the Federation of American Scientists, noted the disparity: “Petraeus is getting off much more easily than people who committed similar offenses. In the Kiriakou case, as in the Petraeus case, the identity of an undercover officer was disclosed without becoming public. But the outcomes of the two cases are radically different. Either they should both go to jail or they should pay a fine.”

Rep. Adam Schiff, the ranking Democrat on the House Permanent Select Committee on Intelligence, praised Petraeus’s service. He also told me, “I am reminded every day of the critical importance of safeguarding classified information and all individuals – no matter how senior – must be held to account when they fail in this duty.”

But classified information hasn’t been safe in Washington for some time now. The Petraeus affair is in this sense a small scandal. The much larger one is that some leakers are punished mildly, others are punished harshly and most are not punished at all.

Eli Lake is a Bloomberg View columnist who writes about politics and foreign affairs.