“There’s classified, and then there’s classified.”
So said President Obama in a recent interview when asked about former Secretary of State Hillary ClintonHillary Diane Rodham ClintonClinton lawyer's indictment reveals 'bag of tricks' Attorney charged in Durham investigation pleads not guilty Attorney indicted on charge of lying to FBI as part of Durham investigation MORE’s use of a private email server. Essentially, the president was saying it was no big deal, despite the findings that classified information was involved.
Yet, the Obama administration has brought more charges under the Espionage Act against officials for allegedly mishandling classified information than all other administrations combined since it was signed into law 99 years ago.
Consider Thomas Drake, a former top NSA official who faced prosecution in 2011 for the “willful retention of national defense information” after communicating unclassified information to The Baltimore Sun regarding illegal surveillance programs at the agency. Eventually, Drake pled guilty to a misdemeanor and the government dropped the espionage charges against him.
Or the case of former CIA agent Jeffrey Sterling, who was convicted for sharing national security documents with a New York Times reporter. Before doing so, Sterling had raised concerns with the Senate Intelligence Committee about a poorly executed CIA operation he was involved with. He is currently serving 42 months in federal prison.
Contrast that with former Defense Secretary Leon Panetta and General David Petraeus, who both leaked classified information with little or no consequences. Panetta disclosed “Top Secret” information and other sensitive details at an event attended by a “Hollywood executive” working on the movie Zero Dark Thirty. Panetta has never been punished and a Project On Government Oversight (POGO) investigation found that the Defense Department’s Inspector General -- who is supposed to act as an independent watchdog -- altered the findings of investigators to clear Panetta of any wrongdoing.
It might be argued that Panetta, or the head of any federal agency, should have the discretion to determine what information truly needs to be classified. But that’s not what the law says. A better solution than allowing Cabinet members to do this is a public interest balancing test. That is, having a court independently evaluate whether the disclosure of classified information best serves the national interest.
The Petraeus case indicates that favorable treatment hasn’t been limited to cabinet secretaries. Despite leaking classified information to his biographer and mistress -- and lying to the FBI unit investigating the lead -- General Petraeus was sentenced to a mere two years’ probation and fined $100,000.
This unequal application of the law politicizes national security and makes the entire process a sham.
The Espionage Act makes no distinction regarding the reasons for disclosing classified information, nor does it distinguish between the levels of classification.
In the same interview in which he said, “There’s classified and then there’s classified,” President Obama said nobody gets treated differently by the Justice Department “because nobody is above the law.”
But the Administration’s arbitrary approach to the classification system and its double standard in prosecuting some individuals but not others, significantly undermines this claim.
As we near the end of this administration, it’s disappointing that President Obama’s 2009 pledge to set a new, higher standard for transparency, accountability, and ethics has gone largely unfulfilled. In March, more than a dozen nonprofit organizations, including ours, sent a letter to the White House urging the administration to take action to correct course on its poor record toward a more open government before it’s too late.
We’re still waiting for a response.
Brian is Project On Government Oversight Executive Director and Hempowicz is Project On Government Oversight Public Policy Associate