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OVERCLASSIFIED: Throwing the Book at Petraeus and Tossing Out the PGP Key

If Washington’s top officials can’t keep a secret, maybe there’s something wrong with the system.

Zu Guttenberg Meets With ISAF Commander General Petraeus
BERLIN - NOVEMBER 23: ISAF Commander General David Petraeus speaks to the media after talks with German Defense Minister Karl-Theodor zu Guttenberg on November 23, 2010 in Berlin, Germany. Petraeus is in Berlin to discuss the current situation in Afghanistan and the recently-announced decision by NATO to pull its troops out by 2014. Germany has approximately 4,500 Bundeswehr soldiers serving in Afghanistan. (Photo by Sean Gallup/Getty Images)

If an excess of schadenfreude could kill, half the Washington press corps would be dead right now.

In November 2012, the resignation of then-CIA Director David Petraeus over an affair induced a first gleeful media round of “How the mighty have fallen!” Over the next two years, the glee subsided to a low simmer, then bubbled up again in January 2015 with rumors that Petraeus might face criminal indictment for sharing classified information with Paula Broadwell, his biographer and partner in extramarital misdeeds.

This week, the schadenfreude quotient boiled over. “David H. Petraeus, the best-known military commander of his generation, has reached a plea deal with the Justice Department and admitted providing his highly classified journals to a mistress when he was the director of the C.I.A.,” the New York Times intoned solemnly. “[This] completes a spectacular fall for Mr. Petraeus, a retired four-star general who was once discussed as a possible candidate for vice president or even president.”

The Los Angeles Times dubbed the plea deal “the final chapter in the dramatic disgrace of a modern military hero,” while Vanity Fair opined cheerfully that though “embarrassing for Petraeus, who was among the most respected military leaders in recent history,” the deal might save him the additional “humiliation” of a trial.

Schadenfreude should be resisted. It’s unbecoming. Remember how your mother used to warn you not to make faces, because your face might stick that way? The same applies here. But in the case of Petraeus, there’s yet another reason to avoid schadenfreude: It tempts us to draw the wrong lessons. After all, it’s only a baby step from “How the mighty have fallen!” to self-righteous cries of “How unfair it is that when the mighty fall, it’s merely a misdemeanor, while the un-mighty fall straight into prison!”

This is already emerging as the main secondary narrative in L’Affaire Petraeus. “Does [the] Petraeus deal show a double standard?” wondered CNN.

Well, duh, yes. Where have you been, CNN? You only just noticed that the poor and obscure tend to fare worse in our legal system than the powerful and affluent?

Of course, there’s a double standard. (See also: too big to fail; crack versus powder cocaine; Ferguson, “affluenza,” etc.) David Petraeus gets what the Government Accountability Project asserts is a “cushy plea deal” with no jail time for allegedly sharing classified information with Paula Broadwell, while former mid-level CIA officer John Kiriakou gets 30 months in prison for revealing details about the CIA’s use of waterboarding to the press. Retired Vice Chairman of the Joint Chiefs of Staff General James Cartwright only loses his security clearance for allegedly leaking details of U.S. cyberattacks on Iran to the New York Times, while former mid-level State Department contractor Steven Kim is locked up for discussing a classified report on North Korea with a reporter from Fox News.

The existence of what looks like a double standard tempts us to take the apparent next step in the syllogism, and conclude that any injustice caused by a system in which the powerful get more lenient sentences than the powerless can be cured by — you guessed it — simply locking up those powerful malefactors in the same prison cells as the lower-status wrongdoers.

But if this is the lesson schadenfreude tempts us to draw, we’re missing the more important point: Our legal framework for classifying information and dealing with its disclosure is all messed up.

Our government massively overclassifies innocuous information, then demands that employees with security clearances abide by a confusing, arbitrary, and ridiculously cumbersome set of rules to safeguard classified material. The underlying goal is the prevention of damage to U.S. national security interests, but the rules are so incoherent that even the most conscientious employees tend to fall afoul of them at one time or another.

Yes, you with the TS/SCI clearance: I’m talking to you. Search your conscience. Can you swear that you never discussed classified information outside of a Sensitive Compartmented Information Facility, or never, ever wandered out of a meeting held at a classified level with some notes you really shouldn’t have taken jotted down on your totally unclassified legal pad? Can you swear that you never sat down at home to draft an outline of a memo on classified issues because you were struck by an important insight at 10 p.m. and feared you might forget it, but didn’t want to go all the way back to the office to write it down? That you never discussed an interesting issue with a colleague who had a clearance but probably no real “need to know”? Or that you never scribbled your randomly generated 18-character computer password on a Post-It because you just could not seem to commit it to memory, no matter how hard you tried?

(Note to the Justice Department: For the record, I’m not suggesting that I ever did any of these things. Go bother someone else, okay?)

I remember a particularly surreal period during my 2009-2011 stint at the Defense Department. When the first WikiLeaks cables became public, every media outlet in the world began quoting from the leaked documents. At the Pentagon, however, we were all warned not to even read any of those stories quoting leaked documents, because classified documents remain classified even if they’re splashed all over the front page of the New York Times. Thus, anyone who read media quotes from any leaked classified documents above his or her clearance level was accessing unauthorized information. Even those who had clearances higher than those needed to see any secret cables (most of which were, at the time, easily accessible on classified networks to anyone with a secret-level clearance) were forbidden from reading the media reports online, because if the news reports did contain any classified information, looking at them would constitute the unauthorized downloading of classified material onto unclassified government or private computers.

This was a head-scratcher, particularly for anyone charged with dealing in any way with the media or the public. It forced the frequent use of bizarre circumlocutions to avoid accidentally messing up: “If it is the case that classified information is contained in a Washington Post article, a fact I can neither confirm nor deny, that would be a security breach, and we certainly wish people would not read or discuss any such material that might or might not be genuine and might or might not be classified.”

But back to David Petraeus, who, I’m told, has done one or two important things on behalf of his country over the years. Notwithstanding his past achievements, I’d be the first to agree that he needs more than a slap on the wrist if, say, he was found to have sold U.S. nuclear secrets to Iran, or even just negligently left a file full of top-secret materials lying around long enough for a North Korean spy to spirit them all back to Pyongyang. But he didn’t do any of these things. He gave his biographer — an Army reserve officer who herself possessed a security clearance — temporary access to his personal notebooks, despite his awareness that the notebooks contained some classified information.

This was poor judgment (particularly because he was also having an affair with said biographer, and because said biographer turned out to be the kind of person apt to send anonymous stalkerish emails to complete strangers). But it lacked any malign intent, and did no harm whatsoever to U.S. national security. Whatever her flaws, Paula Broadwell was not a North Korean spy. And — alas for the reading public — she neglected to pass along any classified tidbits in her subsequent biography of Petraeus. In fact, the plea agreement between Petraeus and the government stipulates that Broadwell’s biography, All In, contains no classified information.

Having read All In, I’d go further, and attest that the book contains no interesting information of any kind — no mean feat for a book about someone with a life as interesting as that of David Petraeus. (Disclosure/Note 2 to the Justice Department: I know David Petraeus, and he has never told me anything classified! At least, not as far as I know…. Though, as I said, since so much innocuous material is overclassified, who can ever be entirely sure they’re not inadvertently spilling “secrets”?)

Petraeus is far from the first high-level official to find himself investigated for revealing or mishandling classified information. There was former CIA director John Deutch, who lost his security clearance in 1999 after an investigation found that he had kept classified documents on a government-issued computer in his home. There was former Vice Chairman of the Joint Chiefs of Staff Gen. James Cartwright, who lost his clearance in 2013 over an alleged media leak, although he surely assumed he was doing precisely what the White House wanted him to do.

There was former Attorney General Alberto Gonzales, who was publicly rebuked in 2008 after an internal investigation found that he had kept classified documents in an improperly secured area of his home — including his own handwritten notes about an emergency White House meeting about NSA wiretapping. (The Justice Department decided not to prosecute Gonzales.) To this list, we may soon be able to add former Secretary of State Hillary Clinton, currently in political hot water for using her personal email account rather than an official State Department account for government correspondence.

We can look at this list and cluck our tongues over spectacular falls from grace or prosecutorial double standards, but to me, there’s a different lesson here: If the rules concerning the proper treatment of classified information are so confusing, burdensome, and arbitrary that even four-star generals, CIA directors, and the attorney general frequently seem to run afoul of them — despite a lack of criminal intent and lack of negative national security consequences — maybe it’s time to radically overhaul our system for classifying and protecting sensitive national security information.

The details of such an overhaul are an issue for another time, and one I have written about on previous occasions. But here’s a short to-do list:

  1. Adopt better policies to prevent overclassification, rapidly declassify innocuous materials, and develop more flexible and efficient mechanisms for sharing classified information with allies, partners, and others when needed.
  2. Ensure that no one — powerful or powerless — will face loss of security clearances or criminal penalties for one-time or minor lapses that do no damage to national security.
  3. Ensure that criminal penalties are reserved for those who disclose information with the knowledge or intention that the disclosure will damage national security, and those who cause actual, demonstrable damage by negligently or recklessly disclosing classified information.
  4. Improve protections for genuine whistleblowers and for those who disclose classified information in the good-faith belief that doing so has been authorized.

“Suave, mari magno turbantibus aequora ventis, e terra magnum alterius spectare laborem,” wrote Lucretius. (Loosely: “It is pleasant to watch from the land the great struggle of someone else in a sea rendered great by turbulent winds.”) True, no doubt, but recall also Schopenhauer’s words: “To feel envy is human, to savor schadenfreude is devilish.”

And you never know: Your face might stick that way.

Sean Gallup/Getty Images

 

About the Author

Rosa Brooks is a law professor at Georgetown University and a senior fellow with the New America/Arizona State University Future of War Project. She served as a counselor to the U.S. defense undersecretary for policy from 2009 to 2011 and previously served as a senior advisor at the U.S. State Department. Her most recent book is How Everything Became War and the Military Became Everything.

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