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Earlier this month, a federal judge sentenced Jeffrey Sterling, a former CIA analyst convicted of leaking information about a secret anti-Iran plot, to three-and-half years in prison. It was a strikingly heavy sentence. If it were part of a serious crackdown on all government employees who violate their oaths, it might be justifiable. Instead, it is something quite different: further evidence of the wildly different ways leakers are treated, depending on who they are.

Sterling was sentenced less than a month after General David Petraeus was let off with a $100,000 fine for leak-related crimes, a punishment he can easily bear, given his quick transition from soldier to private-equity fund manager. Petraeus gave his biographer, who was also his mistress, the names of covert operatives. He later lied to the FBI about his actions. By law he could have been sentenced to years in prison. Instead he was given a sweetheart plea deal. Prosecutors did not charge him with perjury or violating the Espionage Act, but instead with mishandling classified information — a misdemeanor.

General Petraeus is a former CIA director with a dense web of high-level connections in Washington. He remains a consultant to the National Security Council. His security clearance is intact. He may travel on foreign missions with permission from a probation officer.

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Sterling, by contrast, was a mid-level CIA analyst when he told a reporter for The New York Times about a botched American cyberattack on Iran’s nuclear program. He revealed no names and was never charged with lying to investigators. In 2013, another CIA operative, John Kiriakou — who revealed the agency’s practice of “waterboarding” terror suspects — was sentenced to 30 months in prison.

These sentences pale beside the 35-year term given to Chelsea Manning, who as an Army analyst shared a trove of secret documents with WikiLeaks. The editor of WikiLeaks, Julian Assange, is holed up at the Ecuadorian embassy in London, fearful that if he steps out, Americans will seize him and give him a comparably harsh sentence. The world’s most famous leaker, Edward Snowden, late of the National Security Agency, wants to return home from Moscow but could expect similar treatment.

Jeffrey Sterling was sentenced to three-and-half years for leaking information.
Jeffrey Sterling was sentenced to three-and-half years for leaking information.AP/Associated Press

Debate over how to treat these violators is endless. There are good reasons to consider them heroes or villains. What the Petraeus plea deal shows, however, is that national security lawbreakers are prosecuted in a two-tier justice system. Those with power and influence escape with gentle wrist-slaps, while those who embarrass the government face draconian punishment. Some are not charged at all. Low-level soldiers were punished for abuses at the Abu Ghraib prison in Iraq, for example, but those who created the abuse system were never prosecuted.

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One thing ties these cases together. All are products of the wild environment that followed the 9/11 attacks. During this extraordinary period, the United States fought two major wars, opened secret prisons, conducted torture, and carried out kidnappings in foreign countries. This was all done under the legal authority of, among others, President George W. Bush, Vice President Dick Cheney, and Secretary of Defense Donald Rumsfeld. As with the trio on the other side — Assange, Manning, and Snowden — there is ample room to debate their actions. Depending on one’s perspective, they are patriots or war criminals.

There is reason to place all of these miscreants in the same category. The crimes they committed or revealed were products of a hyper-tense era. If justice were truly blind, all would be treated equally and punished according to the scope of their offenses. Since justice is clearly being administered prejudicially, however, a larger solution is necessary.

There is a way to resolve these cases with one stroke of the pen: a blanket presidential pardon for all present and former government employees who committed security-related crimes in the years since 9/11. Six names should be at the top of the list: Assange, Manning, and Snowden, along with Bush, Cheney and Rumsfeld. Others could include leakers like Jeffrey Sterling and John Kiriakou, along with enablers of illegal Bush-era policies like David Addington, who was Cheney’s chief of staff, and John Yoo, who wrote infamous memos justifying “enhanced interrogation methods.” For good measure, it might also apply to General James Clapper, the director of national intelligence, who remains in his job despite lying to a Congressional committee under oath about surveillance programs he directed.

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A far-reaching pardon like this would satisfy no one, but it is the best hope for justice in these tangled cases. It would cover those who committed the original post-9/11 crimes as well as those who broke the law by revealing them. All were caught up in the madness that overtook the United States after 2001. Our judicial system has not treated them fairly. Blanket pardon would be a more balanced form of justice.

Stephen Kinzer is a visiting fellow at the Watson Institute for International Studies at Brown University. Follow him on Twitter @stephenkinzer.

Related:

Alan M. Dershowitz: Surveillance and privacy

Editorial: Eric Holder’s crackdown on leaks chills free speech

Editorial: Who sought leniency for David Petraeus?

Jeff Jacoby: Patriot Act’s most controversial section fades to black

2013 | James Carroll: US security — too big not to fail

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