Former NSA contractor Edward Snowden has thrust himself back into the limelight one last time as the sun begins to set on the Obama Administration, apparently hoping against hope to secure a measure of reprieve prior to President-Elect Trump taking the oath of office. In his attempt to do so, Snowden only made himself look foolish.
In an interview with Yahoo News’ Katie Couric, Snowden invoked the case of retired Gen. David Petraeus as evidence that he (Snowden) should be afforded some type of leniency. Petraeus, of course, pled guilty to a misdemeanor charge in 2015 for unauthorized removal of classified information, and in his plea deal he admitted to making false statements to FBI investigating officials about his unauthorized dissemination of that classified information to Paula Broadwell.
{mosads}Snowden raised the specter of the possible revival of Petraeus’ career in order to serve as secretary of state in a Trump administration to argue that there is a “two-tiered system of justice” for the well connected and everyone else. To an extent, he has a point, and in my ten years representing individual government employees, defense contractors and members of our Armed Forces I have certainly been witness to the disparity in how justice is meted out. Those at the senior level, as well as those with high-level connections, often receive far more lenient punishments than the rank and file, and if Snowden had left it at that we would likely be in an agreement in our criticism of Petraeus.
Where Snowden’s analysis goes horribly off-track, however, is when he tries to contrast the severity of information at issue in his case from that of Petraeus. “Perhaps the best-known case in recent history here is Petraeus — who shared information that was far more highly classified than I ever did with journalists,” he said.
“And he shared this information not with the public for their benefit, but with his biographer and lover for personal benefit — conversations that had information, detailed information, about military special-access programs, that’s classified above top secret, conversations with the president and so on,” he added.
The idea that the information Snowden exposed was any less sensitive is simply absurd. Time and time again, the documents leaked by Snowden and published for the world to see turned out not only to be classified at the Top Secret level but also implicated foreign intelligence collection operations that were just as sensitive as the information Petraeus exposed.
The documents exposing Operation MYSTIC, a program that collected the contents of phone calls in several foreign countries, were classified Top Secret. The documents exposing the technical details of a Navy vessel that intercepted foreign communications from various spots around the globe were classified Top Secret. The documents exposing the operational details of Program Olympia, which targeted the phone calls and emails of the Brazilian Energy Ministry, were classified Top Secret. The list goes on and on.
Nor is there any such thing as information being classified “above top secret.” That’s a common misconception by many in Hollywood, the media and the political pundit class, but not usually by defense contractors who should have been paying attention during their security awareness training. Executive Order 13526, issued by President Obama in 2009 and which renewed prior Executive Order classification criteria, sets forth only three levels of classification: Confidential, Secret, and Top Secret. Information classified as “Top Secret” is information the unauthorized disclosure of which “reasonably could be expected to cause exceptionally grave damage to the national security” of the United States. There are no other levels of classification, no matter what you might hear on scripted television network dramas.
Snowden’s particular focus on the fact the information exposed by Petraeus involved special access programs (“SAP”) is little more than a red herring meant to confuse the public. SAPs are referenced in Executive Order 13526 but only in terms of authority to create them and recommendations on the number of individuals who should be accessed to them. SAPs are not, contrary to Snowden’s suggestion, a higher level of classification. A SAP can be classified at any of the three levels of classification.
Snowden’s claim that Petraeus shared information that was more highly classified does not hold water. The information exposed by Snowden was no less sensitive. Both men exposed information that could cause exceptionally grave damage to national security. Snowden faces a life of exile in an authoritarian Russia, as well he should so long as he refuses to face the consequences of his actions.
Petraeus received far too lenient a punishment for his crimes, but at least he did face the consequences. However, in my humble opinion, he should not be entrusted with the position of this Nation’s most senior diplomat. It would be a slap in the face to countless clients of mine who served under his supervision during his Government career and whose careers were ended for inadvertent mistakes that pale in comparison to his deliberate actions.
Trying to split hairs over who exposed more sensitive information, however, is nothing short of childish by Snowden.
Bradley P. Moss is a Washington, D.C. national security attorney and Partner at the Law Office of Mark S. Zaid, PC.
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