Petraeus won’t serve a day in jail for his leaks. Edward Snowden shouldn’t either.

By Trevor Timm

The sweetheart deal the Justice Department gave to former CIA director David Petraeus for leaking top secret information compared to the stiff jail sentences other low-level leakers have received under the Obama administration has led to renewed calls for leniency for NSA whistleblower Edward Snowden. And no one makes the case better than famed whistleblower Daniel Ellsberg.

Ellsberg, the first person ever charged under the Espionage Act or any other statute for leaking the Pentagon Papers to Congress and seventeen newspapers, told me on Thursday: “The factual charges against [Edward Snowden] are not more serious, as violations of the classification regulations and non-disclosure agreements, than those Petraeus has admitted to, which are actually quite spectacular.”

It’s hard to overstate the shocking nature of the government’s case against Petraeus. The information that he gave Paula Broadwell, his friendly biographer with whom he was then having an extramarital affair, was among the most sensitive in the US government. According to the indictment, Petraeus gave Broadwell eight black books containing “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 – and he admitted in his plea to lying to the FBI about his leaks, knowing that doing so was a crime in itself.

Despite the gravity of Petreaus’ actions, he agreed to a single misdemeanor guilty plea for improperly “retaining” classified information, and prosecutors agreed to recommend a sentence of two years probation and no jail time.

Unequal Treatment

Compare that to the actions of Chelsea Manning, who is serving 35 years for leaking classified information. As Ellsberg noted: “Chelsea Manning had access to SCI every day… where she worked in Iraq. She chose to disclose none of it, nothing higher than Secret.”

Or there’s John Kiriakou, the former CIA officer, who passed on to an investigator the names of two covert agents whose names were also never published. He received thirty months in jail and a felony conviction 2013. (As CIA director, Petreaus praised Kiriakou’s conviction just days before lying to the FBI about his own leak.) And Ellsberg himself faced 115 years for his leaks: “The Pentagon Papers I disclosed were all Top Secret. I’d been cleared for SCI too, but disclosed none of it, unlike Petraeus.”

Jeffrey Sterling, a former CIA officer, was also just convicted of leaking classified information to New York Times journalist James Risen last month, “having first revealed it to Congress, as I did”, according to Ellsberg. Sterling was convicted of felony counts under the Espionage Act, and faces sentencing at the end of April. Ellsberg says Sterling’s “violations of security regulations were in no way more serious than what Petraeus has now admitted to,” and that, while it’s too late to do anything about his conviction, the judge should take the Petraeus plea bargain into account at his sentencing.

Snowden Deserves Equal Treatment

“If disclosing the identities of covert agents to an unauthorized person and storing them in several unauthorized locations deserves a charge with a maximum sentence of one year,” Ellsberg said, “then Edward Snowden should face not more than that same one count.”

Snowden’s US lawyer Ben Wizner made a similar point on Thursday to US News and World Report. “If Petraeus deserves ex ceptional treatment because of his service to the nation,” he said, “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.”

Ellsberg told me: “Although I’m in no way authorized to negotiate on his behalf – only his lawyers can do that – I feel certain Snowden would come back tomorrow if he got the same deal as Petraeus. What he said to me when I visited him in Russia a few months ago is he wanted one or two years at most.” Snowden’s main concern? “He doesn’t want to discourage other whistleblowers by accepting more prison time than that, compared to the option of exile,” according to Ellsberg.

Two-tiered System

Critics have long claimed there’s a two-tiered system of justice for leakers: low-level officials get prosecuted like spies under the Espionage Act, while the powerful like Petraeus can leak with abandon and don’t have to worry about any charges at all. The CIA directors that immediately preceded and followed Petraeus leaked top secret classified information to reporters: Leon Panetta leaked secret details of the Osama bin Laden raid to the Zero Dark Thirty filmmakers; and John Brennan told reporters about a double agent that disrupted a bomb plot in Yemen. While another low level official went to jail for that story, John Brennan not only was spared from punishment, but eventually was rewarded with a promotion.

A third CIA director provides an even more direct precedent to the Petraeus case: after he resigned as director in 1996, John M. Deutch was found to have stored on his uncleared personal home computer – which he used for internet access – information as sensitive as Petraeus’, including covert agent identities. He was given misdemeanor plea bargain exactly like Petraeus’, which he was about to sign when he was preemptively pardoned by President Clinton.

Petraeus is apparently an exception only because his leaks came to the attention of the FBI inadvertently, and they involved a large volume of exceptionally sensitive information.)

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.Φ

Trevor Timm is a Guardian US columnist and executive director of the Freedom of the Press Foundation, a non-profit that supports and defends journalism dedicated to transparency and accountability. Follow him on Twitter: @TrevorTimm. Note: Daniel Ellsberg sits on the board of directors of Freedom of the Press Foundation along with Edward Snowden, where the author works.