Three months after news broke of the arrest of a former NSA contractor (no, not that NSA contractor) for stealing classified documents, the Department of Justice finally indicted Harold T. Martin III on February 8, 2017. Martin was charged under the Espionage Act with twenty counts of willful retention of national defense information, including classified documents from at least three different agencies dating as far back as 1996.
Martin conceivably faces a prison sentence that would span the rest of his life (and then some). However, Martin would be well-advised to use whatever leverage can be derived from the precedent of the prosecution of General David Petraeus to move for a far less severe punishment than that which he currently faces.
{mosads}The situations surrounding the unauthorized removal and storage of national defense information by Martin and Petraeus are far more similar compared to the actions of Chelsea Manning, John Kiriakou, or Edward Snowden, to name a few. Unlike the latter three, Martin did not disseminate any of the classified documents that he had stolen to unauthorized third parties.
Unless there comes a point in the prosecution of Martin where the government unveils a more sinister aspect to the case, possibly involving selling the documents (or at least the information contained in them) to foreign entities or countries, it appears he effectively was “hoarding” – for lack of a better term – all of the documents at issue but never showed them to anyone else.
That could not be more different from what was done by Manning, Kiriakou, and Snowden. Manning leaked entire databases worth of classified documentation to WikiLeaks, which published them for the world to see.
Kiriakou disclosed the covert identity of a CIA official to a private defense attorney, who later relied upon that information in a separate criminal proceeding. Snowden leaked tens of thousands of classified documents to journalists who have gone on to publish countless stories detailing the information in those documents, as well as publishing for viewing the documents themselves. Manning served 7 years of a 35-year prison sentence before President Obama commuted most of the remainder of her sentence. Kiriakou served nearly two years in jail. Snowden remains in exile in Russia in order to avoid criminal charges.
General Petraeus, on the other hand, who lied to the FBI, improperly removed and stored classified documents at his private residence, and later shared some of those documents with his biographer, did not serve a single day in prison. He paid a middling fine and received probation.
But with Petraeus, there was a clear distinction between how the information and documentation was disseminated compared to Manning, Kiriakou, or Snowden. Paula Broadwell, the biographer in question, never published any of the information from the documents Petraeus gave to her.
Petraeus could have credibly (although not necessarily successfully) argued at trial that he retained the necessary authority as an Original Classification Authority to provide Broadwell – who maintained a security clearance in her own right – with the specific documents at issue. Those factors no doubt played a role in the decision by prosecutors to cut a deal with Petraeus in order to secure a guilty plea with such a reduced penalty.
For Martin, he can claim that he did not ever even give the documents to anyone, cleared or otherwise. He is not accused of lying to the FBI, like Petraeus and Kiriakou were so accused. The documents he stole are not available online for every terrorist organization and foreign adversary to view at their convenience, unlike the documents Manning and Snowden leaked.
Martin clearly broke the law, and clearly violated the sacred trust and privilege of maintaining access to classified information. He clearly should not be entrusted with a security clearance again and, assuming the accusations in the Indictment are true and accurate, he should absolutely receive criminal punishment.
If the legacy of Petraeus’ prosecution means anything, though, it is that Martin should not be given such a severe punishment. To hold otherwise would only reinforce the well-founded belief within the intelligence community that rules are only for the little people and that senior officials will never get anything other than a slap on the wrist for similar misconduct.
Bradley P. Moss is a partner at the Washington, D.C. Law Office of Mark S. Zaid, P.C., where he has represented countless individuals (including whistleblowers) serving within the intelligence community, and is deputy executive director of the James Madison Project, through which he has represented media outlets such as Politico, Gawker, Daily Caller, and the Daily Beast in FOIA lawsuits against the Bush, Obama and Trump administrations.
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