Lawyers for Jeffrey Sterling, a former CIA official convicted earlier this year of leaking classified information to a New York Times reporter, have requested a reconsideration of his conviction because two former generals, David Petraeus and James Cartwright, have received far more lenient treatment for what they call similar offenses.
“The principal difference between Mr. Sterling and Generals Petraeus and Cartwright are their respective races and rank,” the new filing states. “Like General Cartwright, General Petraeus is a white, high ranking official … The government must explain why the justice meted out to white generals is so different from what Mr. Sterling faced.”
In January, Sterling was convicted by a jury on nine criminal counts, including violations of the Espionage Act, for leaking classified information to Times reporter James Risen about a CIA effort to undermine Iran’s nuclear program. Sterling is to be sentenced in April and faces a maximum sentence of decades in jail. In a statement after the verdict was announced, Attorney General Eric Holder called the guilty verdict a “just and appropriate outcome.”
But the government is coming under increasing criticism for its uneven prosecution of leakers.
Earlier this month, Petraeus, who led U.S. forces in Iraq and Afghanistan and was the director of the CIA, reached an agreement with prosecutors in which he pleaded guilty to a single misdemeanor charge of mishandling classified information when he gave his lover and authorized biographer, Paula Broadwell, eight notebooks filled with highly classified information about military plans and secret programs, covert agent names, and confidential discussions he had with senior officials including President Obama. Petraeus, who resigned from the CIA when his affair with Broadwell was revealed, also admitted to lying to the FBI, but he was not charged for that. The plea agreement calls for two years probation and a $40,000 fine but no jail time.
No charges have been filed against Cartwright even though it has been reported that federal prosecutors believe he leaked highly classified information to Times reporter David Sanger about a joint effort by the U.S. and Israel to cripple Iran’s nuclear centrifuges through a cyberattack with a computer worm called Stuxnet. According to The Washington Post, the FBI has interviewed Cartwright on at least two occasions but has stopped short of indicting him.
“The charges faced by General Cartwright could not be more similar to what Mr. Sterling faced,” stated the five-page motion filed yesterday by Sterling’s lawyers, Edward MacMahon Jr. and Barry Pollack. “The only difference between the two cases — aside from the minor detail that the Stuxnet story was published by a different New York Times writer than Mr. Risen — is that General Cartwright is a white high-ranking official and Jeffrey Sterling is an African American man who became an outcast at the CIA following his publically-filed employment discrimination claim.” The motion described the case against Sterling as an instance of “selective prosecution.”
These cases are part of the Obama administration’s controversial crackdown on leakers and whistleblowers. The Department of Justice has used the draconian Espionage Act to charge more officials for leaking to journalists than all previous administrations combined. These prosecutions have targeted journalists as well as their government sources, with the FBI secretly obtaining phone records and emails of reporters from the Times, the Associated Press and Fox News. News organizations have accused the Obama Administration of violating First Amendment protections for a free press.
The Petraeus plea agreement has drawn a significant amount of scrutiny. Earlier this week, the lawyer for Stephen Kim, a former State Department official who pleaded guilty in July to violating the Espionage Act for talking about a classified report on North Korea with a Fox News reporter, released a strongly worded letter to the Department of Justice in which he demanded the immediate release of Kim, who is serving a 13-month sentence. Kim’s lawyer, Abbe Lowell, accused the government of “a profound double standard” in its treatment of leakers — making the same argument as Sterling’s lawyer about high-level officials getting wrist slaps for offenses that less-powerful officials are jailed for.
The new motion by Sterling’s lawyers focuses on another volatile issue that the Department of Justice is accused of considering in its decisions to prosecute or not prosecute leakers: race. Sterling, as his lawyers noted, is African American. Kim is Korean-American. Although Lowell has not raised the race issue as directly as Sterling’s lawyers, one of Lowell’s briefs accused FBI agents of making a racial slur against Kim during their search of his house in 2010 (the government subsequently denied any slur had been made). In a much-earlier earlier case that involved allegations of espionage and race, the Taiwanese-born scientist Wen Ho Lee was suspected of stealing secrets from a U.S. nuclear weapons lab in 1999 and was indicted on 59 counts and jailed, but later released after all but one minor charge was dropped.
Previous Intercept stories on leak prosecutions: