Petraeus Must Be Prosecuted
The New York Times disclosed over the weekend that federal prosecutors have recommended that the Justice Department should bring charges against former general and C.I.A. director David Petraeus. Unless President Barack Obama and Attorney General Eric Holder (or his successor) want to be seen as flaming hypocrites, Petraeus must now be prosecuted.
Another president might have had some leeway. If this revelation had been made two weeks after President Hillary Clinton or President Jeb Bush got sworn in, they'd have a range of options to plausibly consider, which would include refusing to prosecute. Obama, as a result of his own administration's actions, doesn't really have this option available to him.
What Petraeus is accused of is leaking classified documents to a journalist. That's a very specific crime, under the Espionage Act of 1917. Since its passage almost a century ago, a total of eleven people have been prosecuted for doing exactly the same thing that Petraeus is accused of. Of those eleven, seven have been prosecuted by the Obama administration. In the first ninety-two years of the law, in other words, four people were charged, but since 2009 seven more have faced (and received, in some cases) jail time for leaking classified documents to journalists.
Many disagree with the priorities the Obama administration has set on this issue. Overzealously prosecuting leaks to reporters skates uncomfortably close to infringing on the freedom of the press. Some of the cases the Obama administration has pursued are well-known to most of the public. Chelsea (formerly Bradley) Manning and WikiLeaks, or Edward Snowden's disclosure of N.S.A. files. Others are not so well-known. But the common thread through all of them is that the Obama administration is waging a sort of war on leakers that no other president has fought quite so strenuously. Whether you agree with Obama's prosecutorial discretion or not is beside the point -- the record shows that Obama has championed the issue unlike any of his predecessors.
General Petraeus is, of course, innocent until proven guilty in a court of law. He is accused of leaking classified documents to the journalist he was having an affair with (who was writing his biography), which were found on her computer. The affair itself destroyed Petraeus's career (although it is entirely possible he'll make a political-style comeback at some point). He says he wasn't the source of the documents, and that he is innocent of wrongdoing.
There are only two possibilities here. The first is that Petraeus is right, and his mistress obtained the documents elsewhere. This is entirely plausible, since good journalists get source material from a number of people. She was researching Petraeus, so she could have gotten some info on him that he knew nothing about. The second possibility is that Petraeus is lying and trying to cover up his mistake. This is also entirely plausible, since he may have been helping her get material she could use in her book, thinking there was nothing wrong with doing so. This is why we have court cases -- to determine the facts. One of these is true, and one is not. In one scenario, a crime has been committed by Petraeus, in the other scenario, that crime was committed by someone else and Petraeus has been falsely accused.
The only way we're going to determine the facts of the case, however, is in a courtroom. And the Obama administration's history of vigorously prosecuting exactly the same crime demands that Petraeus be treated no differently by the Justice Department. The only other option really open to President Obama is to pardon Petraeus and avoid the court case altogether. Obama could do this whether Petraeus agreed to the plan or not -- the pardon power of the president is absolute.
Without such a pardon, there is no believable reason for Obama's Justice Department not to prosecute Petraeus. Many politicians are right now calling for Petraeus to get some sort of pass, due to his previous service to the country. This is nothing short of naked elitism -- one law for politically powerful people, and one law for everyone else. Shamefully, even some politicians who have ardently supported going after the likes of Manning and Snowden are now calling for Petraeus to walk away scot-free from the exact same crime. Dianne Feinstein took the hypocrisy prize for saying she thought Petraeus had "suffered enough," while still calling for the book to be thrown at Edward Snowden. John McCain and Lindsey Graham took the prize in the unintended irony category, though, by issuing a letter that denounced the leak to the New York Times about the status of the Petraeus investigation. They spoke out in support of a leaker, but condemned the leak of the status of his case? Hoo boy -- that takes some major-league doublethink!
Personally, I think that the Obama administration has been downright Draconian in its prosecution of leakers. I am no doubt biased, considering the work I do. Without Snowden's leaks, we as a country simply would not have had a conversation about the excesses of the N.S.A., and I consider that a valuable service to the country. I also support what John Kiriakou and Thomas Drake did, and all the others who didn't achieve the notoriety of Manning and Snowden. I don't have much of a problem with what Petraeus is accused of, either, even if I assume that the info he may have leaked might have been somewhat self-serving, seeing as how the journalist was writing a Petraeus bio at the time.
But given how the Obama administration has set its priorities -- whether I agree with them or not -- it would now be nothing short of flaming hypocrisy for them to overturn a recommendation from federal prosecutors to charge and try Petraeus. Politically, it would be a lot easier to give Petraeus a walk, since he is still a popular figure. Astonishingly, The Guardian reports that Petraeus still "retains his security clearance, which permits him access to classified and sensitive information." This, despite clear Pentagon regulations which state a security clearance should be at least suspended "when there exists information raising a serious question as to the individual's ability or intent to protect classified information." It is impossible to see how Petraeus doesn't now fall into that category, in fact.
Barack Obama's Justice Department has brought more than twice as many prosecutions for the crime of leaking confidential information to journalists as the combined total of all presidents back to Woodrow Wilson. Having set this record, there are now only two choices for President Obama and Eric Holder (or his successor). Either pardon Petraeus for any and all leaks, or prosecute him to the full extent of the law, in exactly the same way as the other seven were treated. Anything else would be indefensible hypocrisy and elitism, at this point -- no matter whether you agree with Obama's track record of such prosecutions or not.
-- Chris Weigant
Cross-posted at The Huffington Post
Follow Chris on Twitter: @ChrisWeigant
That would be great fun on Faux News, but I'm not going to hold my breathe.
Personally, I think that the Obama administration has been downright Draconian in its prosecution of leakers.
Amen. Baraconian? Heheh.
-David
The Guardian reports that Petraeus still "retains his security clearance, which permits him access to classified and sensitive information."
While I agree with the overall point of the article, it is not that astonishing that Petraeus still holds his clearance. The quote as you have published from the Guardian makes it sound like nothing was done to his clearance when in fact it is quite possible his clearance has been restricted to access to information prior to the commencement of an investigation or adjudication of a clearance issue. While denying access to any new or current information.
It is important to remember that the higher the security clearance the more compartmentalization is possible and required. In order for the Justice Department and DISCO to complete an investigation Petraeus must hold a level of clearance that enables him to discuss the information with other people (in this case investigators) that have access to the information or the information must be declassified to allow the investigators to discuss the matter with a non cleared person.
Unfortunately we will probably never know as who holds what clearance is not a matter of public record.
I think that you are correct in the fact that the administration has left little latitude for not prosecuting Petraeus without furthering the point that many have of the Imperial Obama picking and choosing laws to enforce. it is equally important to recognize the spin for the spin.
Well, while we're calling for prosecutions, why hasn't there been any proceedings against torturers and their enablers?
If there aren't any prosecutions for that, then it's very hard to take seriously calls for the prosecution of General Petraeus. As far as I know, he's against the use of torture.
Torture is a pretty specific crime, too.
"why hasn't there been any proceedings against torturers and their enablers?"
Because it hasn't stopped.
David!!!
Glad ta see ya around..
http://www.chrisweigant.com/2015/01/07/what-to-expect-from-the-114th-congress/#comment-55910
Thought ya might get a kick out of this, if ya hadn't already seen it. :D
Michale
There is a LOT of political machinations going on behind the scenes over the Patraeus issue.. The forefront of which is what the General can tell the world about Benghazi...
It will be interesting to see how these political overtones play out...
My guess is that Patraeus will cut a deal.
His silence on Benghazi for no prosecution..
Michale
David!!!
Glad ta see ya around..
"Yer hair?? Yer here!!!"
-Steve Gutenberg, IT TAKES TWO
:D
Michale
My guess is that Patraeus will cut a deal.
His silence on Benghazi for no prosecution..
And Obama will have to deal with the political fallout of being a flaming hypocrite..
Apparently, it's never bothered him in the past..
I doubt one more time will make any difference..
Michale
You know, JFC, it surprises me how much hatred there is on display at this blog for your country.
Hatred and cynicism and ...
How do you know torture is still being practiced by the US government?
JFC,
When I say 'torture', I'm talking about a detainee in a room being interrogated by US officials, in the US or abroad, engaged in torture.
If you insist that this is still happening under the Obama administration, I want to know how you know about it. What are your sources?
When I say 'torture', I'm talking about ...
Given that you're questioning his claim that torture is continuing, isn't it more relevant what he's talking about when he says "torture"?
dsws,
Yes, you are absolutely right about that and, maybe he will.
I just wanted to be clear about where I'm coming from on this issue. Many will equate war, including drone strikes, with torture. I have a big problem with this administration's drone and war policy but I don't equate it with torturing a detainee.
Do you think the US is still torturing detainees, in the US or elsewhere?
I'm working on the assumption, naïve or imbecilic as it may be, that the US is not currently engaging in the torture of its detainees, here or anywhere else, and I hope it never will again. Because, I guess, I still believe in that quaint little thing called the promise of America.
"Dianne Feinstein took the hypocrisy prize for saying she thought Petraeus had "suffered enough,""
The "suffered enough" spin is greatly diminished by the multinational private equity firm KKR & Co. L.P hiring Patreaus as director of their Global Institute (2013) AND making him a partner in 2014. With KKR total assets slightly north of 4 billion, that's a golden parachute any airborne soldier would envy. :)
TheStig:
One would think that airborne soldiers would want to avoid golden parachutes, as such a thing would be excessively heavy and almost certainly ineffective.
One would think that airborne soldiers would want to avoid golden parachutes, as such a thing would be excessively heavy and almost certainly ineffective.
Baa daa da...
:D
Michale
Thought ya might get a kick out of this, if ya hadn't already seen it. :D
Heheh. Congratulations, Michale!!!
I have to say I am honored indeed though I can't claim to have been the first to have said this it is a piece of advice I've tried to take to heart in my own marriage.
Sometimes I even succeed! :)
-David
Yea, it's been a godsend for me.. :D Being right is not nearly as rewarding as being happy...
Well, except in Weigantia.. :D hehehehehehehe
Michale
Do you think the US is still torturing detainees, in the US or elsewhere?
I don't know. Sad to say, I wouldn't be terribly surprised if the next round of leaks showed that we are. An aircraft carrier can have a pretty big turning radius. But I'm not jumping to accuse us of it either.
Why have laws if they are not to be enforced?
Ooops. Silly me. Laws are just for us common folk.
I had only one year of law school (as it was in Georgia, it likely doesn't count). I was under the impression that someone could only be pardoned from a conviction of a crime. When Nixon was pardoned without conviction, for any and everything, even ones that may not then be known, I had a suspicion that old Gerald has gone several steps beyond his power. To this day no one has been able to justify to me a pardon prior to conviction, as a person is presumed not to have committed a crime until that point. How and why would you pardon a legally innocent person?
I had only one year of law school (as it was in Georgia, it likely doesn't count). I was under the impression that someone could only be pardoned from a conviction of a crime. When Nixon was pardoned without conviction, for any and everything, even ones that may not then be known, I had a suspicion that old Gerald has gone several steps beyond his power. To this day no one has been able to justify to me a pardon prior to conviction, as a person is presumed not to have committed a crime until that point. How and why would you pardon a legally innocent person?
That is a damn good point!
By the bi...
"Welcome to the party, pal!!!!"
-John McClane, DIE HARD
Been a while since I done did that.. :D
Michale
One would think that airborne soldiers would want to avoid golden parachutes, as such a thing would be excessively heavy and almost certainly ineffective.
I don't know. Gold can be hammered very thin. I emailed What If (the xkcd guy's column for scientific answers to silly questions).
Michale,
Which was the good point, that law school in Georgia probably doesn't count?
Why have laws if they are not to be enforced?
The way I think of laws is that they define the limits of what government is authorized to do. If you haven't been convicted of violating any laws, then government has no business imposing criminal penalties on you. Likewise down the spectrum of severity of offenses and stringency of standards of proof.
You can't make government enforce laws, without running into trouble as you try to force the people to do their jobs who are supposed to force the enforcers to enforce. (Even saying it turns into word-spaghetti, although not word-salad.) At best you can set it up so that government is likely to enforce laws fairly thoroughly and fairly impartially most of the time.
4C,
Which was the good point, that law school in Georgia probably doesn't count?
No, the point you made about how can one pardon a person who is innocent of any crime??
While Georgia is our northern neighbor, I don't know much about it.. I don't get out much.... Anymore.. :D
Michale
LizM,
I'm talking about "extraordinary rendition". I can't see how you can draw a line between US officials doing hands-on work and farming it out. What difference does that make?
Two quick responses, then I've got to get today's article ready...
Bleyd [15] -
OK, now THAT was funny!
:-)
4Crawford [20] -
Before I give my own take on your excellent question, wanted to toss this out there for you to comment on: what do you think of Jimmy Carter's "blanket pardon" of draft dodgers? Can a pardon not name who is being pardoned?
OK, I've got to go look up Catholic "indulgences" to really form my answer to your comment. Be back later...
:-)
-CW
JFC,
I'm talking about "extraordinary rendition". I can't see how you can draw a line between US officials doing hands-on work and farming it out. What difference does that make?
It makes no difference, whatsoever. I thought my references to "in the US or elsewhere" and " in the US or abroad" were self-explanatory references to extraordinary rendition, Gitmo, etc.
But, you're right, I left out an important reference - 'US officials or their proxies' - because I make no distinction between "hands on work" and "farming it out".
And, so ... how do you know that extraordinary rendition, where the US government is farming the torture out to other entities, is still going on under the Obama administration?
I have in mind that it's a matter of public record that the rendition itself is still done -- just supposedly not for purposes of torture now.
As for indulgences, the way I remember it is that you have to be saved by the sacrament but then you go to Purgatory (made up out of whole cloth by the Catholics, no scriptural basis). Indulgences just cut out your time in Purgatory for an offense. You still have to confess it and repent for it.
So, the US is not torturing, still ... whew! And I mean that, sincerely.
As for indulgences ... I don't know anything about that. :)
"how do you know that extraordinary rendition, where the US government is farming the torture out to other entities, is still going on under the Obama administration?"
I don't know this, but that stuff is classified after all. I believe what Jeremy Scahill reported.
Do you want me to look up what this guy reported or can you just give me the gist of it?
He reports that secret prisons and rendition continue to be used.
http://blog.amnestyusa.org/africa/obamas-alleged-link-to-secret-prisons-and-extraordinary-rendition/
"When I say 'torture', I'm talking about a detainee in a room being interrogated by US officials, in the US or abroad, engaged in torture."
That's really kind of circular. I'll just go with the definition in the United Nations Convention against Torture.
http://www.un.org/documents/ga/res/39/a39r046.htm
He reports that secret prisons and rendition are still in use.
http://blog.amnestyusa.org/africa/obamas-alleged-link-to-secret-prisons-and-extraordinary-rendition/
"When I say 'torture', I'm talking about a detainee in a room being interrogated by US officials, in the US or abroad, engaged in torture."
That's really kind of circular. I'll just go with the definition in the UN convention against torture (Part 1 article 1).
http://www.un.org/documents/ga/res/39/a39r046.htm
Thanks, JFC ... I read the article in the link and the Scahill, piece as well.
I didn't get a good sense, though, of what is happening in the interrogation rooms in Mogadishu. But, there was no implication that torture had been used by US or Somali officials ...
Of course, you know that I wasn't attempting to define what torture is - just whether you were talking about actual interrogation of detainees when you said that torture is still happening.
Incidentally, the definition of torture as outlined in the UN Convention against torture is a sound one, needless to say.
"You know, JFC, it surprises me how much hatred there is on display at this blog for your country."
You know, LizM, I'm not the thought police, so you can interpret my comments that way if you please, but it's actually pretty meaningless and very Bush era.
Besides, you keep asking why there have been no prosecutions. What is your theory? I've offered one explanation that makes good sense and is backed up by a respected reporter and human rights organizations.
We know that our intelligence officials lied to congress and they tried to smear Feinstein. Obama did not intervene. They lie all the time about drone strikes when they talk about them at all. There's really no good reason to believe that we're getting any accurate info from them about torture and secret dungeons.
JFC,
"You know, JFC, it surprises me how much hatred there is on display at this blog for your country."
Hey, I apologized for that little outburst, you know ... well, sort of. :)
Besides, you keep asking why there have been no prosecutions. What is your theory?
I chalk most of it up to political cowardice.
"I didn't get a good sense, though, of what is happening in the interrogation rooms in Mogadishu."
Solitary confinement in a small, windowless, bug-infested cell in a basement dungeon in Mogadishu for months on end w/o charges or contact with any outsiders. I'll bet they're partying down there! Seriously, w/o knowing anything else, this fits the UN Convention.
Yeah, I'd have to agree with that.
As I have said, there is quite a lot about what this administration is doing with respect to counter-terrorism that I think is morally wrong and strategically ineffective.
Hey, I apologized for that little outburst, you know ... well, sort of. :) ...
... over on the Barbara Boxer piece ...
John From Censornati -
Just to remind you, if you post more than one link per comment, it gets held for my approval. Post a single link per comment, and it'll go through...
:-)
-CW
LizM and JFC -
I'd be interested in hearing what you both think about an article from my year-end link dump:
http://www.nytimes.com/2014/12/09/opinion/pardon-bush-and-those-who-tortured.html?_r=2
It's by an ACLU guy who reluctantly has decided that pardons for torturers are the best option left to have some sort of legal accountability.
Like I said, it's germane to your discussion, and I'd be interested to hear both your feedback.
-CW
"Post a single link per comment, and it'll go through..."
Thanks. I was pretty sure that was what I'd done wrong.
"It's by an ACLU guy who reluctantly has decided that pardons for torturers are the best option left to have some sort of legal accountability."
I read that when it was first published and I'm conflicted. He makes a good argument, but I think pardons would be very divisive domestically and a total disaster internationally.
Unfortunately, torture and drone strikes are popular with Americans as long as they don't have to hear the details. I think this and all future presidents will continue to grant that head in the sand wish as we conduct our war without end.
CW - 44
I wasn't impressed by Romero's OP-ED. I found his logic tortured, which makes for good irony but bad policy.
The first 6 paragraphs summarize the facts, which are well established. The 7th introduces the concept of a "Tacit Pardon" which is just another term for "Declining to Prosecute."
Paragraph 8 notes that tacit pardons "open the very real possibility that officials will resurrect the torture policies in the future." Well, yeah, that's obvious enough, and Romero gives obvious examples of the hazard. Five paragraphs left, and point wise, Romero is beginning to look like Peyton Manning did last Sunday. I'm waiting for the magic to happen......
Paragraph 9, Obama could still prosecute, yeah, yeah.
Paragraph 10 is where Romero tosses the long bomb. "If the choice is between a tacit pardon and a formal one, a formal one is better."
Why?
"An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted." This is crazy. The law is the marker showing future offenders could be prosecuted. Romero's notion of Obama "taking ownership" lays down the marker that prosecution is not very likely because it's politically unpalatable. It's a tell signaling that we are a government of men more so than laws.
Romero's Civil War precedent ignores the facts that 1: the South was subject to military occupation and 2: the constitutional law of the land was changed.
Pardons churn my stomach because:
The facts are already well established,
and
a more parsimonious logic says signaling low risk of prosecution increases the likelihood of future Tenets, Rumsfelds, Woos, Bybees, Cheneys and Bush's will opt to torture as they deem fit.
"It's by an ACLU guy who reluctantly has decided that pardons for torturers are the best option left to have some sort of legal accountability."
I have concluded that there will be no prosecutions for the use of torture, its justification, condoning and enabling by the US government under the Bush administration. I think President Obama will live to regret that decision and will find himself, ironically, spending far more time looking backward than looking forward on this issue.
And, so, I think that explicit - VERY explicit - pardons are the only way left to go.
But, I would hope that those pardons would be structured in a way which would, for all intents and purposes, practically guarantee that any future act of torture by any US official or its proxy, within the US or abroad, be prosecuted for the criminal act that it is, from the torturer him- or herself right on up the chain of command, as far as it may go.