Why Secrecy Rules Apply to Everyone

Federal agencies relentlessly pursue suspected whistleblowers, while self-serving politicians escape punishment.

Starting with Hammurabi, rulers have frequently appreciated that their subjects would be more acquiescent to being governed if they had at least a minimal appreciation that they were being treated fairly. That understanding has led to the development of law codes along the lines of the Roman Republic's laws of the Twelve Tables, which were inscribed in bronze and posted prominently in the Forum so everyone would know what the rules were. In the Middle Ages statues of Justice erected in the Italian republics often had her blindfolded and with a scale in one hand and a sword in the other, indicating that guilt would be weighed fairly and punishment, if merited, would be delivered inexorably. For modern democracies the rule of law has often been translated into the expression "equal justice under law."

Of course everyone knows that there is no such thing as equal justice. Certain infractions are rarely prosecuted while other crimes are pursued rigorously. Expensive lawyers reduce the risk of there being any serious consequences for the wealthy even when one is caught out. Employees of the state are rarely punished even when their felonies cost the taxpayers millions of dollars because no one wants to look closely at corruption in government.

But there is nevertheless the impression that the law exists to serve everyone equally, which is why the recent comments by President Obama regarding Hillary Clinton's personal email account, which included 22 emails classified top secret, are so incredible. Obama made two statements regarding Hillary's private email server while she was secretary of state. His first comment was that he would do nothing to impede the investigation and possible filing of charges against Clinton if the facts should warrant that kind of action, elaborating "That is institutionally how we have always operated: I do not talk to the attorney general about pending investigations. I do not talk to FBI directors about pending investigations. We have a strict line." And then he followed up by stating that "There's carelessness in terms of managing emails, that she has owned, and she recognizes. I continue to believe that she has not jeopardized America's national security."

Anyone who has ever handled classified material, which presumably includes the president, knows that there are a number of things that you do not do. You do not take it home with you, you do not copy it and share it with anyone who does not have a clearance or a need to know, and you do not transfer it to another email account that is not protected on a government server. If you have a secured government computer, that means that what is on the computer stays on the computer. This is not a matter of debate or subject to interpretation. It is how one safeguards classified information even if one believes that the material should not be classified. That the classification might be unnecessary is not your decision to make.

Obama is, of course, lying when he says that he will allow an investigation to proceed unimpeded. The attorney general and FBI director work for him, and he is keenly aware of what is going on. He doesn't have to say anything at all for Loretta Lynch to understand that it might be in the administration's interest to slow down or kill the process. As Obama has one major legacy issue in the waning days of his presidency, to make sure that the Democratic Party holds onto the White House, to torpedo Hillary Clinton through prosecution over mishandling classified information would be unthinkable for him and the people around him. He does not have to send a signed presidential memo or have an off the record conversation to make sure that his associates appreciate that point.

And second, when Obama claims that there was no breach of security, his assessment is irrelevant, in part because he may not know that to be true. The government was not controlling the private server in Chappaqua and numerous messages both there and in Washington have reportedly been erased. Besides, the accusation being made against Hillary is that she mishandled classified information, not that she gave it to some foreign power. She clearly is guilty as messages were cut and pasted minus their classification caveats. The question should be not whether she is guilty -- she is -- but rather what form of punishment is appropriate. But Obama has sent a clear message that he has considered the matter and there will be no punishment.

And then there is the somewhat similar case of General David Petraeus. While CIA director, Petraeus shared classified information with his lover Paula Broadwell, who was his official biographer. He eventually plea bargained guilty to giving Broadwell eight notebooks that he was insecurely storing in his home, including classified information recorded while he was serving as commander of U.S. forces in Afghanistan.

The notebooks held some of the most sensitive kinds of military and intelligence secrets, including names of undercover officers, intelligence resources, paraphrases from high-level meetings of the National Security Council, and even some comments about Petraeus's discussions with the president. It has been argued that Broadwell had a security clearance and was writing an official biography, but she had no need to know the highly sensitive information contained in the notebooks and should not have had access to them.

Petraeus was placed on probation for two years and was fined $100,000, which he could easily afford. Proposals to demote him in rank and so diminish his pension were rejected. Some argued that he was protected by his rank and status and that his punishment had he been an enlisted man or junior officer would almost certainly have been much greater. But it is precisely due to his rank and status that the punishment was more severe than it seemed. He went from being a highly respected military officer and head of the CIA to being a man in disgrace who furthermore had his extramarital affair exposed to the nation. Some might plausibly argue that he should have also done jail time, but it is not unreasonable to maintain that the punishment hurt him in the area where he was most vulnerable -- his reputation. In reality the penalty might be considered to be at least somewhat proportionate to the crime.

And then we come to Jeffrey Sterling, who is currently serving a three-and-a-half year prison term for allegedly leaking information to New York Times journalist James Risen. Sterling first came to the media's attention when in 2003 he blew the whistle on a botched CIA operation called Operation Merlin, telling the Senate Intelligence Committee staff that the CIA had mistakenly sent nuclear secrets to Iran.

So it was perhaps inevitable that in 2006, when James Risen published a book that inter alia discussed the botched Operation Merlin, the Department of Justice focused on Sterling as the suspected source. In court the federal prosecutors relied almost entirely on Risen's phone and email logs, which reportedly demonstrated that the two men had been in contact up until 2005. But the prosecutors did not provide the content of those communications even though the FBI was listening in on some of them. Risen has claimed that he had multiple sources on Operation Merlin, and Sterling has always denied being involved. No evidence was ever produced in court demonstrating that any classified information ever passed between them.

Jeffrey Sterling could not even testify in the trial on his own behalf because he would have had to discuss Operation Merlin, which was and is still classified, meaning he could not reveal any details about it even if they were already known through the Risen book. Indeed, some of the information in Risen's book relating to Merlin could not have been known by Sterling as he was no longer associated with the operation after mid-2000, a detail that could also not be presented as it too was considered classified. The jury convicted Sterling based on "suspicion," a verdict that defense witness Colonel Pat Lang, former head of the Defense Intelligence Agency's clandestine program, described as a "travesty."

After conviction, Sterling was sent to prison in Colorado -- 900 miles from his family's home in St. Louis. According to his wife Holly, legal fees have wiped out the couple's finances, leading some to believe that the government deliberately set out to make an example of Sterling. John Kiriakou, another CIA whistleblower who was also imprisoned, observed that "The point wasn't just to imprison Jeffrey. It was to ruin him. Utterly ruin him. The point was to demonize him. And frighten any other would-be whistleblowers."

So much for equal justice under law. The politically best connected abuser of classified information walks, the next one down the ladder in terms of political importance is fined but not otherwise punished, and the least institutionally protected individual goes to jail.