Does the Obama administration's selective prosecution of those who reveal classified information represent a systemic abuse of national security?
On November 8, the Marine Corps Times reported that seven US Navy SEALs have been punished for revealing classified information related to their work as paid consultants for a video game maker, Electronic Arts. The Redwood City, California-based software company developed the video game, "Medal of Honor: Warfighter," which they released last month. The game is marketed on the company's web site as "written by active US Tier 1 Operators while deployed overseas."
The seven SEALs also were found to be utilizing official gear without required authorization. One was a member of SEAL Team 6, the team that assassinated Osama Bin Laden.
Navy SEALs, both active duty and retired, are privy to highly sensitive and secretive information about tactics and techniques that are central to the success of their dangerous missions overseas. That is why the government forces them to sign nondisclosure agreements when they enter service and when they leave. It is also why the Pentagon claims it enforces these nondisclosure agreements, although enforcement - as we will see - is selective.
In this case, the actions of the seven Navy SEALs violated signed non-disclosure agreements, as well as the articles of the Uniform Code of Military Justice; yet the punishment they received was a simple letter of reprimand and the loss of half a month's pay for a period of two months - basically a fine.
The Case of Bradley Manning and Indicted Whistleblowers
Pivot now to the case of Bradley Manning. The Army private is accused of leaking hundreds of thousands of military and diplomatic documents to the anti-secrecy group WikiLeaks.
One could argue the Navy SEALs' breach of classified, secret information and the Uniform Code of Military Justice is far more serious than the crimes that Bradley Manning is accused of. The seven SEALs basically lifted classified information, and then peddled the information like a commodity to a software corporation for their own personal profit. This use of classified information should be distinguished from the Manning case, where there was no profit motive whatsoever. Nor was one alleged.
So while the SEALs receive a reprimand and a fine, Manning languishes in a federal prison under what some have called unduly harsh - even torturous - conditions - including extended periods of solitary confinement for more than 900 days.
It would seem that Manning is being subjected to selective prosecution and arbitrary and capricious confinement by the government.
The Obama administration's soft touch treatment of the SEALs also raises questions about its prosecution of John Kiriakou, a former CIA counterterrorism operative who was part of the operation that located and captured Abu Zubaydah.
Ironically, less than two months after the US Justice Department announced that it would not charge CIA officials who participated in the brutal interrogation of detainees during the Bush administration, prosecutors on October 23, 2012 convicted Kiriakou for telling a reporter the name of a covert CIA officer involved in the program.
Kiriakou is one of six current or former officials to be charged by the Obama administration with leaking secret classified documents; this is twice the number of cases brought by all previous presidents combined.
But the case of the Navy SEALs who personally profited off of selling classified information to a software company that makes video games obviously doesn't rise to the legal occasion that compelled Kiriakou to plead guilty and face imprisonment for what could be years.
The government's message seems to be clear: It is OK to steal, commodify and sell national security secrets for personal gain and profit, but those who expose misconduct by the government - misconduct that sheds a spotlight on government malfeasance - under long-standing whistleblower statutes - face imprisonment or even death.
Classified Information for Partisan Gain?
Last year administration critics charged that the Obama White House had illegally disclosed classified details about the Osama bin Laden raid for partisan political gain.
Political commentator Glenn Greenwald, writing back in June of 2012, cited "two glaring contradictions" in the Obama administration's approach to classified information and secrecy:
(1) At the very same time that they wage an unprecedented war on whistleblowers, they themselves continuously leak national security secrets exclusively designed to glorify Obama purely for political gain; and (2) At the very same time they insist to federal courts that these programs are too secret even to confirm or deny their existence (thereby shielding them from judicial review or basic disclosure), they run around publicly boasting about their actions.
And this autumn found Pentagon officials expressing consternation after publication of No Easy Day, a first-person account of the bin Laden operation by Matt Bissonnette, another member of SEAL Team Six. Bissonnette looked to make a profit by releasing his narrative in a book he wrote under the pseudonym Mark Owen.
Pentagon officials admit that Bissonnette's book, a New York Times bestseller, contains secret, classified information. Even though they have accused him of violating nondisclosure agreements in publishing the book without submitting it for a security review, they have not - as yet - taken any formal action against him, and he has been allowed to keep the profits.
The Pentagon's general counsel has, however, threatened legal action against Bissonnette and at last report, the Defense Department was still considering its options.
The head of Naval Special Warfare Command, Rear Admiral Sean Pybus, responded to Bissonnette's book by notifying his force that "hawking details about a mission" and putting other information about SEAL training and operations on the market puts them and their families at risk.
If this is not enough, there are questions about the conduct of unidentified Obama aides accused of leaking national security information to strengthen the president's foreign policy credentials in the case of the "Obama kill list." This case of selective leaking - ostensibly for political gain - produced no prosecutions of so-called whistleblowers, nor did it produce any administrative enforcement of the law.
The selective leaking of information has been used not only by politicians trying to garnish undue favor with the public, but - as in the case of former Vice President Dick Cheney aide Stewart Libby - secret classified information was leaked in violation of the law - used as currency - in an attempt to destroy political opponents and provide cover for an illegal war.
In that case, Karl Rove and Richard Armitage, the two George W. Bush cohorts who leaked a covert agent's identity (Valerie Plame) were never indicted.
General Petraeus, Pillow Talk and Leaked Classified Information
Unfortunately, the manure seems to pile even higher as recent news has emerged that former CIA Director David Petraeus, who resigned over his affair with his biographer Paula Broadwell, may have revealed classified information about the attacks in Benghazi, Libya - which raises disturbing questions about the biographer's access to secretive documents and classified information for personal gain.
According to the FBI, the bureau opened its investigation into the relationship between Paula Broadwell and Petraeus this summer, following clues they claimed hinted that someone may have hacked into the director of the CIA's email account. More importantly, the FBI also found classified documents on Broadwell's personal computer, according to The Wall Street Journal. Will the federal government prosecute anyone over this bit of commodified classified information?
It's not clear how inappropriate Broadwell's access was. One thing we do know is that, as an Army reservist with a background in counterintelligence, Broadwell certainly had a high-level security clearance - which raises further questions about the commodification of intelligence and the potential use of classified information for her biography of the former CIA head.
It is clear that secret classified information has been offered for sale to for-profit corporations by Navy SEALs and others, directly profiting off inside information.
What is not clear is how those who have served their country as courageous whistleblowers - people like Bradley Manning and John Kiriakou, to name just two - can be placed under lock and key and - in the case of Manning - put in deplorable conditions for serving the public interest and the public's right to know.
The decision to prosecute someone under federal law has created, in the words of Mark Amsterdam a former staff attorney for the Center for Constitutional Rights, "a prosecutorial monopoly" by the Justice Department "as an agent of the Executive branch."
Amsterdam is right. This is most obvious in the selective enforcement of the law and the targeting of public interest whistleblowers by the Obama administration - the selective prosecutions that occur even as self-serving commodifiers of classified information and politicians use leaks for their own personal advantage and profit and are subsequently let off the prosecutorial hook.
On November 15, 2012 three Nobel laureates penned a letter demanding a cessation to the political persecution of Manning. Three Nobel Peace Prize winners - Desmond Tutu, Mairead Maguire and Adolfo Perez Esquivel, say the US Army private actually deserves gratitude, not persecution. Manning himself was nominated for the Nobel in 2012.
Our president is both a constitutional law scholar and a Nobel laureate. It is time he heeds the advice of these other Nobel laureates and respects the rule of law, ceasing the persecution of Bradley Manning and ending the war on whistleblowers.