DOJ Claims Grossly Disparate Treatment Will ‘Promote Respect for the Law’

On Thursday, David Petraeus will be sentenced in North Carolina. If all goes as his lawyers and the government have arranged, he will get a year of probation for leaking some of this country’s most sensitive secrets to his mistress.

On May 11 (the date has been postponed from this week), Jeffrey Sterling will be sentenced for – the jury decided – leaking details of the Merlin program, a CIA effort to deal flawed nuclear blueprints to Iran. In a sentencing memorandum, the government argues Sterling should be sentenced for 235 to 293 months – upwards of 19 years – for exposing CIA’s Merlin (the government argues he exposed a program that might have thwarted Iran’s nuclear ambitions, ignoring the evidence they themselves submitted showing it was poorly managed).

The same DOJ that recommends Petraeus should go virtually unpunished for sharing far more sensitive information with Paula Broadwell says that Sterling should go to prison for decades to set an example.

In addition, imposing a substantial prison sentence in this case is necessary to promote respect for the law and afford adequate deterrence to criminal conduct. 18 U.S.C. § 3553(a)(2)(A) & (a)(2)(B). The importance of these factors cannot be overstated. A substantial sentence in this case would send an appropriate and much needed message to all persons entrusted with the handling of classified information, i.e., that intentional breaches of the laws governing the safeguarding of national defense information will be pursued aggressively, and those who violate the law in this manner will be tried, convicted, and punished accordingly.

Now, DOJ isn’t making quite as ridiculous an argument as this first appears. It goes on to list several things that might distinguish Sterling – who leaked to expose CIA dysfunction rather than fluff his own ego – from David Petraeus. First, Sterling – who never got the option of a plea deal offering probation – went to trial.

Most importantly for sentencing-disparity purposes, the defendant exercised his right to a jury trial.

And for that, the government argues, he should get a much harsher punishment.

Then, in a squishy paragraph invoking harm that it did not prove (and then backing off that to “potential harm”), the government argues Sterling’s behavior is far worse than any other Espionage Act case that has been prosecuted recently.

Moreover, the degree of harm at issue here further separates the defendant’s conduct from other individuals who communicated national defense information to the public through the media. Cf. Abu Ali, 528 F.3d at 263 (finding that the harm contemplated by Ali was much broader in scope and more devastating in terms of its potential impact than the harm contemplated by John Walker Lindh, whose sentence the district court had used for comparison purposes). Here, the potential harm caused by the defendant is far greater in scope than the harm contemplated or caused by a defendant in any recent § 793 prosecutions.

They can make this argument, of course, because they’re not prosecuting James Cartwright (at least not yet), even though he allegedly leaked details of the effort to thwart Iran’s nuclear program using StuxNet. There’s almost no conceivable way to suggest the Merlin story is a more harmful leak than the StuxNet one; they just haven’t chosen to prosecute the latter.

Finally, they misrepresent the trial record to claim they’ve proved that Sterling leaked this information out of spite and self-interest.

People act in response to all manner of motivation, some more commendable than others. Here, the evidence established that the defendant communicated national defense information for purely selfish and vindictive purposes. It is exactly because this enormous decision-making responsibility cannot be left to the whims of the individual employee that the same secrecy agreement the defendant signed in 1993 made clear that, if he had concerns regarding classified information, he had appropriate, independent outlets through which to address such concerns, including the House and Senate intelligence committees and the CIA’s Inspector General.

Earlier in the filing, the government dismissed Sterling’s effort to bring his concerns to the Senate Intelligence Committee by falsely claiming he had never expressed concerns before and therefore suggesting his doing so in March 2003 had nothing to do with the Iraq war – which is what SSCI’s own documents and witness testimony indicated – but instead had to do with spite. But Sterling had raised concerns before. As the government’s own witness, the Russian scientist Merlin, testified, Sterling had raised concerns immediately with Bob S, only to be told to “shut up.”

In other words, the government is still struggling to explain why Sterling should go to prison for decades when David Petraeus and (thus far) James Cartwright go free, the latter for a very similar kind of alleged crime as Sterling was found guilty of.

Yet they claim – with no apparent intended irony – that such a sentence would “promote respect for the law.”

Investigative journalist Marcy Wheeler writes the “Right to Know” column for ExposeFacts. She is best known for providing in-depth analysis of legal documents related to “war on terrorism” programs and civil liberties. Wheeler blogs at emptywheel.net and publishes at outlets including the Guardian, Salon, and the Progressive. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy. Wheeler won the 2009 Hillman Award for blog.

Reprinted with permission from ExposeFacts.