Jan. 18, 2017
The celebrations over President Barack Obama’s commutation of Chelsea Manning’s 35-year prison sentence have overshadowed what might be a more consequential development in the government’s long-running war against leakers and whistleblowers: Obama’s pardon of Marine General James Cartwright.
Late last year, Cartwright pled guilty to lying to the FBI about disclosing classified information on the Stuxnet computer virus to reporters from The New York Times and Newsweek. The former general, a vice chairman of the Joint Chiefs of Staff who was known as Obama’s “favorite general,” was due to be sentenced this month on felony charges. Prosecutors were seeking a two-year prison term.
Obama pardoned him yesterday, which means Cartwright will not go to prison.
“It seems to me that the far bigger news from the perspective of policy and precedent-setting is the pardon of General James Cartwright,” wrote Steve Vladeck, a University of Texas law professor who specializes on national security law. Vladeck described the Cartwright pardon as “an interesting denouement” to the controversy over the Obama administration’s war on leakers. While Vladeck stated that he doubted it was the beginning of a trend, he asked, “Is it possible, then, that the Cartwright pardon is a tacit admission on the government’s part that it has been a bit too hard on leakers and those, like General Cartwright, who have interfered with leak investigations?”
The Cartwright pardon constitutes a new precedent in which a well-connected leaker of classified information who lied to the FBI has been spared jail time. In 2015, former general David Petraeus admitted to sharing top secret information with his biographer and girlfriend, Paula Broadwell, and lying to the FBI about it. Petraeus, who resigned from his job as CIA director when the scandal broke, negotiated a deal to plead guilty to a single misdemeanor count, accepted 18 months of probation, and avoided a prison sentence. [In another era, during the George W. Bush presidency, Scooter Libby, who was chief of staff to Vice President Dick Cheney, received a presidential commutation for a 30-month sentence for leaking the name of CIA agent Valerie Plame.]
The Manning case is different from Cartwright’s in significant ways, including the amount of material leaked. Manning leaked a large cache of secret military and diplomatic documents, while Cartwright talked about a single top-secret program to undermine Iran’s nuclear industry (and his conversations with reporters from the New York Times and Newsweek were in the context of making the Obama administration look good, whereas Manning’s leak to Wikileaks exposed government wrongdoing). While Cartwright received a full pardon, Manning only had her sentence commuted, to seven years from the staggering 35 years she received at trial.
At the time of the Petraeus plea deal, lawyers for several convicted leakers expressed outrage that Petraeus was permitted to avoid incarceration for crimes that were arguably far worse than their clients were incarcerated for. Abbe Lowell, the lawyer for Stephen Kim, a State Department official who received a 13-month sentence for talking to a journalist about a single classified report on North Korea, said at the time, “The issue is not whether General Petraeus was dealt with too leniently … The issue is whether others are dealt with far too severely for conduct that is no different. This underscores the random, disparate and often unfair application of the national security laws where higher-ups are treated better than lower-downs.”
The Petraeus deal was cited in pleadings that Lowell and lawyers for another convicted leaker, Jeffrey Sterling, made to their respective judges, arguing that justice had to be meted out equally, and that their clients had received far harsher treatment (the appeals were unsuccessful, though). The Cartwright case adds another data point for future leak cases. There is not just the Petraeus plea deal that can be cited, but the Cartwright pardon, too.
“The clemency and pardons today underscore the uneven enforcement and completely unequal treatment of people accused of leaking classified information,” Lowell told The Intercept after the Cartwright and Manning decisions were announced.
One of the Obama-era leakers who did not receive the generous treatment showered on Cartwright and Petraeus is John Kiriakou, a former CIA officer who pled guilty to sharing the name of a covert operative with a reporter. Even though the operative’s name was never published, Kiriakou was sentenced to 30 months in prison.
“Now we’ve seen it twice,” said Kiriakou, who was released from prison in 2015. “It’s not just the pardon, it’s the sweetheart deal Petraeus got as well. How can a prosecutor prosecute a leak case and with a straight face ask a judge to sentence somebody to 24 years [this is what Sterling faced] when Petraeus got 18 months of unsupervised probation and Cartwright just sat at home and waited for his pardon to come through?”
The contrast was noted by national security reporter Michael Isikoff in a dispatch for Yahoo News yesterday.
Still, the pardon is likely to prove controversial in light of the prison terms — in one case as long as three and a half years — given to other, much lower level government officials prosecuted by the Justice Department in leak-related cases. If nothing else, the move appears to undercut a significant argument made by the office of U.S. attorney for Maryland Rod Rosenstein in a court filing last week, that “when an individual is found to have made unauthorized disclosures, particularly one serving in a senior position, it is critically important” to hold that person accountable.
Of course the Department of Justice under Donald Trump will pursue whatever cases it wants to pursue, and if the latest twists with Cartwright and Manning are politically inconvenient, lawyers for the new administration will try to downplay them. Pardons and commutations do not have the same legal standing as court rulings, and can be portrayed as discretionary and inherently political moves by an outgoing president.
“It’s hard to know the precedental value this will have,” said Jesselyn Raddack, who has represented several prominent leakers and whistleblowers. “Both of these cases were very politicized, for better or worse. We are also moving into a presidency that promises greater secrecy and doesn’t necessarily think secrecy is a bad thing and is reflexively anti-leak when it’s against [Trump], and pro-leak when it serves to smear his enemies.” Referring to the commutation of Manning’s sentence, Raddack added, “I hope it would be encouraging for whistleblowers, but encouraging for what? They could only be put in jail for seven years, and then someone will have mercy on them? It’s hard to read a lot of encouragement in that, because we’re still in such a chilling environment.”