Petraeus Committed Felonies, FBI Finds

David Petraeus provided highly classified secrets to his mistress. Will he be charged?

david-petraeus-paula-broadwell

A Justice Department investigation finds that former CIA director David Petraeus illegally provided highly classified secrets to his mistress.

NYT (“F.B.I. and Justice Dept. Said to Seek Charges for Petraeus“):

The F.B.I. and Justice Department prosecutors have recommended bringing felony charges against David H. Petraeus, contending that he provided classified information to a lover while he was director of the C.I.A., officials said, leaving Attorney General Eric H. Holder Jr. to decide whether to seek an indictment that could send the pre-eminent military officer of his generation to prison.

The Justice Department investigation stems from an affair Mr. Petraeus had with Paula Broadwell, an Army Reserve officer who was writing his biography, and focuses on whether he gave her access to his C.I.A. email account and other highly classified information.

F.B.I. agents discovered classified documents on her computer after Mr. Petraeus resigned from the C.I.A. in 2012 when the affair became public.

Mr. Petraeus, a retired four-star general who served as commander of American forces in both Iraq and Afghanistan, has said he never provided classified information to Ms. Broadwell, and has indicated to the Justice Department that he has no interest in a plea deal that would spare him an embarrassing trial. A lawyer for Mr. Petraeus, Robert B. Barnett, said Friday he had no comment.

The officials who said that charges had been recommended were briefed on the investigation but asked for anonymity because they were not authorized to discuss it.

Mr. Holder was expected to decide by the end of last year whether to bring charges against Mr. Petraeus, but he has not indicated how he plans to proceed. The delay has frustrated some Justice Department and F.B.I. officials and investigators who have questioned whether Mr. Petraeus has received special treatment at a time Mr. Holder has led a crackdown on government officials who reveal secrets to journalists.

Of course Petraeus is getting special treatment; almost anyone else would have been charged and imprisoned long ago. But while the “we wouldn’t hesitate a moment to charge a private soldier who’d committed the same transgressions” argument is powerful, it’s not dispositive.

First, Petraeus was a national hero and served, to the best of my knowledge, quite honorably for more than four decades until his ignominious fall. The attorney general and president quite naturally have to decide whether his transgressions here merit prosecution given his long history of service. Additionally, especially for a Democratic president who never served in the armed forces, there’s the issue of the public backlash that would follow charging arguably the most famous American general of the postwar era.

My instinct is that people in the highest positions of public trust ought indeed to be prosecuted when they violate that trust. Putting the sainted David Petraeus on trial would send a powerful signal that no one is above the law and that we take safeguarding our secrets seriously. This wasn’t, after all, a situation where he skirted the law in misguided pursuit of the nation’s security; he did so for the most selfish reasons. To the extent that his long history of service to the nation counterbalances his transgressions here, it can be weighed at sentencing.

At the same time, however, there is the question of harm: How much actual damage was done in sharing the information he shared with Broadwell? It’s one I can’t answer.  While I can’t condone his violating his duty to share sensitive compartmented information only with those with the proper clearance and a mission critical need to know, Petraueus operated for years at the highest levels of the national security apparatus and was able to see the big picture. As a Reserve officer, Broadwell had a security clearance. Without knowing what sort of information he shared and how he expected her to use it, I simply don’t know whether the violations in question were merely technical—lots of information that’s publicly known or that would cause no damage if released to the average American is highly classified for various reasons—or egregious.

Speaking of politics:

The protracted process has also frustrated Mr. Petraeus’s friends and political allies, who say it is unfair to keep the matter hanging over his head. Senator John McCain, Republican of Arizona, wrote to Mr. Holder last month that the investigation had deprived the nation of wisdom from one of its most experienced leaders.

“At this critical moment in our nation’s security,” he wrote, “Congress and the American people cannot afford to have his voice silenced or curtailed by the shadow of a long-running, unresolved investigation marked by leaks from anonymous sources.”

While I concur with McCain that Petraeus deserves to be either charged or not, I’m bemused at the notion that Petraeus is some sort of indispensable man. He’s bright, highly educated, and very experienced. But you can’t swing a dead cat in DC without hitting national security professionals. The Republic will survive Petraeus’ sidelining.

Washington Monthly‘s David Atkins goes too far in implying that MoveOn.org’s infamous “Betray Us” ad has been vindicated. But he’s right that the fiasco highlights the dangers of hero worship. Then again, I was warning against Petraeus fetishism and overhyping Petraeus way back in 2007.

FILED UNDER: Crime, Intelligence, Law and the Courts, Military Affairs, National Security,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. OzarkHillbilly says:

    Meanwhile, water is wet, winter is cold, and the sun still rises in the East.

    Then again, I was warning against Petraeus fetishism and overhyping Petraeus way back in 2007.

    Every time I see that picture, I get the heebee jeebies from the look on her face.

  2. DC Loser says:

    At the same time, however, there is the question of harm: How much actual damage was done in sharing the information he shared with Broadwell? It’s one I can’t answer. While I can’t condone his violating his duty to share sensitive compartmented information only with those with the proper clearance and a mission critical need to know, Petraueus operated for years at the highest levels of the national security apparatus and was able to see the big picture. As a Reserve officer, Broadwell had a security clearance. Without knowing what sort of information he shared and how he expected her to use it, I simply don’t know whether the violations in question were merely technical—lots of information that’s publicly known or that would cause no damage if released to the average American is highly classified for various reasons—or egregious.

    Anyone who’s held a security clearance knows that’s BS. You signed an agreement to abide by all laws and regulations regarding controlling classified information, and only discussing classified information with those who have the clearance and need to know. The second part is important. Just having a clearance does not entitle one to classified information if it is not required in the performance of official duties. Petraeus is not an idiot. He knowingly violated US laws. He knows what the consequences are.

  3. Pinky says:

    I have to admit when I’m wrong. I had Petraeus pegged for a great political future, a potential Eisenhower. Of course, I don’t know him, and that’s the risk you run trying to judge character from a distance.

  4. OzarkHillbilly says:

    @Pinky: They don’t make them like Eisenhower any more.

  5. Another Mike says:

    The language here gives me the idea that he has already been convicted. Seems to me that we are dealing with allegations of criminal conduct.

    The fact that secret documents were found on her computer is not in itself proof that she obtained them by way of Petraeus. Even if it can be shown that the documents were downloaded though Petraeus’s account, it does not mean he had any part in it. It might be that he is guilty of failing to secure his password or leaving his computer logged on while unattended.

    It is not at all certain that the government will get a conviction.

  6. Butch Bracknell says:

    If this had happened when he was still on active duty I certainly would be more inclined to buy James’ argument about a sliding scale that should exist for people who have served so long so well and so honorably. And we just saw that dynamic applied by the federal judge who cut Gov. McDonnell a break on sentencing the cause of his military and public service. But Petraeus allegedly maybe these offenses when he was Director of Central Intelligence. Arguably more than any one else in the world he has a duty to protect properly classified information. And if I were the Atty. Gen. that is the factor that would cause me to seek an indictment.

  7. Tony W says:

    My instinct is that people in the highest positions of public trust ought indeed to be prosecuted when they violate that trust.

    Does that apply to the Bush administration, or just military officials?

  8. Butch Bracknell says:

    Apologize for typos using my voice recognition on my phone

  9. michael reynolds says:

    Eisenhower was not a great fighting general but he was perhaps the best political general ever.

    I am not a big fan of throwing people in prison for non-violent offenses. I think we should be using prison more sparingly, in situations where lives and safety simply must be protected by removing a perpetrator from society. I don’t think anyone’s shivering in their bed for fear of David Petraeus.

    But I don’t see how we avoid prosecution without just admitting that justice is only for the poor and powerless. If he’s convicted I would hope for leniency at sentencing.

  10. Rafer Janders says:

    My instinct is that people in the highest positions of public trust ought indeed to be prosecuted when they violate that trust.

    Well that’s mighty generous of you.

  11. Rafer Janders says:

    My instinct is that people in the highest positions of public trust ought indeed to be prosecuted when they violate that trust.

    It’s a shame this instinct doesn’t apply to people in the highest positions of public trust who violated that trust by engaging in a years-long illegal conspiracy to run a kidnapping, rape, torture and murder gulag.

    But then again, James has proved that there’s no behavior, no matter how vile, that he won’t excuse if it’s done by a powerful Republican.

  12. Pinky says:

    @OzarkHillbilly: It’s more that we don’t make Eisenhowers any more. We look for the political resume, the law degree, the hair. There’s no doubt that Petraeus has turned out to be a flawed man, and there’s a chance he committed gross violations of the law. But we don’t give enough respect to men like what he appeared to be.

  13. michael reynolds says:

    @Pinky:

    There’s an argument to be made that we are often way too deferential to generals. There’s a long list of generals who needed to be overruled or sacked. Historically politicians have on many occasions been right about the conduct of a war where generals were wrong – Lincoln and everyone up to Grant being the obvious go-to case.

    French and British generals in WW1 were highly respected professionals but also brain-dead butchers who clearly did not understand their trade. Would that politicians had stepped on more of their toes earlier on. And American generals early in WW2 had the deeply stupid idea that we should dispense with North Africa and go straight for France. But what Kasserine showed was that we were in no way, shape or form, ready to fight the Germans. Our army needed a hell of a lot more experience, and thankfully the politicians prevailed.

  14. Gustopher says:

    @michael reynolds:

    But I don’t see how we avoid prosecution without just admitting that justice is only for the poor and powerless. If he’s convicted I would hope for leniency at sentencing.

    The poor and the powerless wouldn’t get leniency in sentencing. And, this administration has gone after leakers with an unprecedented viciousness, so it would be unseemly to let one of the top guys off the hook at all.

    Passing on classified information to his mistress is actually a pretty serious offense. If he is convicted, they should perhaps not throw the book at him, but toss it lightly in his direction. Middle of the range in the sentencing guidelines.

    I don’t think I would be deeply offended if he was pardoned after that, but he definitely needs to be prosecuted and sentenced appropriately.

  15. HarvardLaw92 says:

    @Another Mike:

    You need to read 18 U.S.C. § 793(f) – it doesn’t matter if he intended to convey the information to her. Intent is not required for a conviction.

  16. gVOR08 says:

    But while the “we wouldn’t hesitate a moment to charge a private soldier who’d committed the same transgressions” argument is powerful, it’s not dispositive.

    No, it isn’t. But it should be.

  17. Another Mike says:

    @HarvardLaw92:

    You need to read 18 U.S.C. § 793(f) – it doesn’t matter if he intended to convey the information to her. Intent is not required for a conviction.

    I defer to you knowledge of the law as I am not a professional anything. It seems that the government has to prove that it was through his gross negligence that she came into possession of these secret files. Is that correct? Note that this is just for sake of argument as there is no charge sheet at this point.

  18. Slugger says:

    I have long thought that we need a national bordello under the aegis of a PimpMaster General or National Madam. People who achieve positions of great responsibility do not lose their libidos on the assumption of high office. People being people this will lead to unwise liasons. We should establish a mechanism for the discharge of their libidos. The official PMG/NM would be approved with the advice and consent of the Senate and be charged with recruiting a cadre of discreet patriotic sex workers. I would think that 40-50 females and 5-10 males should be able to handle the needs of our leadership class, but I admit that my tastes are pretty plain vanilla and maybe a larger crews are needed. Of course, the workers would be bound by NDA’s. The nation’s work would proceed with a lot less distractions.

  19. HarvardLaw92 says:

    @Another Mike:

    Correct – the burden of proof is always on the prosecution in a criminal trial. Petraeus would be presumed innocent until proven guilty, like any other criminal defendant.

    That said, assuming he were to be charged under 793(f), the bar is pretty low in that regard. Given the nature of the material, there’s no realistic alternative means by which she could have obtained it other than though his provenance or his negligence.

  20. C. Clavin says:

    @Pinky

    “…we don’t give enough respect to men like what he appeared to be…”

    WTF does that mean?

  21. OzarkHillbilly says:

    @Pinky:

    But we don’t give enough respect to men like what he appeared to be.

    Could not disagree with this part more. In 1945 Eisenhower was still just a man. In 2008 Petreaus was worshiped as a God. By some anyway. And in today’s viral world***, that is all it takes.

    ***On the internet, any public figure can find someone to tell him he is a God. Yeah, sure, anyone can find someone who will call him a complete idiot, but when was the last time you conversed with such an individual??? 🙂

    For the record, I too had high hopes for the man’s political future.

  22. DrDaveT says:

    But while the “we wouldn’t hesitate a moment to charge a private soldier who’d committed the same transgressions” argument is powerful, it’s not dispositive.

    Why the hell not? Criminal prosecutions are not lifetime achievement awards. You get judged on whether or not you committed this crime. Plus, with great power comes great responsibility. To me, it’s obvious that a 4-star general who flouts the rules on transmission of classified material is much more culpable than a lowly corporal who commits the same offence.

  23. anjin-san says:

    @Pinky:

    “…we don’t give enough respect to men like what he appeared to be…”

    That’s just what America needs in the year 2015 – an ever larger military fetish.

  24. ernieyeball says:

    @Slugger:.. a cadre of discreet patriotic sex workers.

    Or we could use Replicants.
    Ridley Scott’s 1982 vision of Blade Runner Los Angeles is only 4 years away.
    https://www.youtube.com/watch?v=-RVxkQJtqus

  25. ernieyeball says:

    @ernieyeball: …4 years away.

    Where are those flying cars?

  26. Rafer Janders says:

    But while the “we wouldn’t hesitate a moment to charge a private soldier who’d committed the same transgressions” argument is powerful, it’s not dispositive.

    Yes, why don’t we ever talk about all the other secrets that Petraeus DIDN’T betray? Why isn’t that taken into account…?

  27. Butch Bracknell says:

    @Rafer Janders: this would be true of anyone who ever committed the offense of unlawfully communicating classified information. He was the Director of Central Intelligence. That was his JOB.

  28. Just Me says:

    Michael Reynolds while I agree that it would be nice to see the US Justice system as a whole rely less on prison for non violent offenses, I can see prison as a viable option where state secrets are being shared (IMO depends a lot on what the secrets were) since some secrets can put people at risk.

    If Petraus committed the crime and is convicted then he should receive whatever punishment is handed out.

  29. Pinky says:

    @OzarkHillbilly:

    On the internet, any public figure can find someone to tell him he is a God. Yeah, sure, anyone can find someone who will call him a complete idiot, but when was the last time you conversed with such an individual???

    Seriously?

    The guy had people who didn’t know him taking out full-page ads accusing him of lying before he even spoke, because they had a hunch he might say something they wouldn’t like.

  30. Mikey says:

    While I can’t condone his violating his duty to share sensitive compartmented information only with those with the proper clearance and a mission critical need to know, Petraueus operated for years at the highest levels of the national security apparatus and was able to see the big picture. As a Reserve officer, Broadwell had a security clearance. Without knowing what sort of information he shared and how he expected her to use it, I simply don’t know whether the violations in question were merely technical—lots of information that’s publicly known or that would cause no damage if released to the average American is highly classified for various reasons—or egregious.

    It doesn’t matter where he worked or how much of the “big picture” he thinks he sees. He doesn’t get to make that decision, even as DCI. Even the Director isn’t briefed on the details of every single program. He can’t arbitrarily decide what’s “merely technical.” And by definition the revealing of information classified Top Secret could cause exceptionally grave damage to national security. That’s why there are detailed procedures to which everyone, even the Director, must adhere when dealing with it. And he has an extra obligation, because as the head of the organization one of his responsibilities is setting the example. He set a damn poor one, and now it’s even worse.

  31. gVOR08 says:

    @Pinky:

    The guy had people who didn’t know him taking out full-page ads accusing him of lying before he even spoke

    IIRC the line was “Petraeus – Betray Us”. I felt at the time that was over the top. Seems to be turning out, at least in a small way, they were right.

  32. gVOR08 says:

    I had a fair amount of respect for Petraeus until I read his much touted book on counterinsurgency. A load of 30,000 foot level philosophizing with a lot of pop sociology and psychology. I read it asking the question: If I were a newly appointed battalion intelligence officer in Iraq, what would I do first. Never found anything useful.

  33. michael reynolds says:

    @Just Me:

    I want a clearer set of priorities. For me job #1 for the criminal justice system is violent crime, (murder, rape, armed robbery) followed by large-scale fraud and theft sufficient to actually harm the system (the banks come to mind), followed by everything else.

    I judge a crime by the harm. No one seems to think there’s harm done, here, and I don’t want to throw Petraeus in prison any more than I want to throw a pot dealer or a first time car thief in prison. I have an instinctive aversion to symbolic prosecutions, prosecutions based solely on, “Well, the law says. . .” When the clearance rate for murder, rape, arson, armed robbery, battery, and so on approaches zero, then I’ll be for spending police and court time on the prosecution of lesser stuff.

    To me it’s a matter of resources and priorities. Showing some secret papers to your adoring girlfriend is a “meh” crime. I suppose we have to prosecute pour encourager les autres, but I see no reason why taxpayers should be paying to cage someone who represents no threat and has done no actual damage.

  34. Mikey says:

    @michael reynolds:

    Showing some secret papers to your adoring girlfriend is a “meh” crime.

    It most definitely is not. It is exceptionally serious for a couple reasons.

    First, classified documents are tracked every time they move, because a clear chain of custody must be maintained. Once they make it to Adoring Girlfriend, that chain of custody is irrevocably broken. We have no idea after that where they ended up, who saw them, who had access (authorized or not) to Adoring Girlfriend’s computer(s)…it’s a nightmare.

    Second, people in positions of high responsibility who are granted access to material of high classification have a clear responsibility to set a proper example in safeguarding that material, because the safeguards are a pain in the ass and if the DCI slacks, it trickles down through the rest of the organization. People will be more likely to cut corners and the risk of exposure increases.

    I know this stuff because I work with classified material and information daily, as part of my profession. When it comes to passing classified to an unauthorized recipient, it is never “meh.”

  35. DrDaveT says:

    @michael reynolds:

    I judge a crime by the harm. No one seems to think there’s harm done, here

    Like Mikey, I beg to differ.

    The classification means, by definition, that if this gets out US interests suffer grievous harm. So there are two possibilities:

    1. The classification is not merited. That’s a serious offense by itself, and the originating classification authority should be disciplined.
    2. The classification is merited, and Petraeus is willing to let his Johnson do the thinking for him when it comes to potential grievous harm.

    Those who live with these rules every day are held to an extremely rigid standard. Forgetting to lock a safe one night, if it held those documents, would get you in trouble — even if the chances of someone taking advantage of that were nearly zero. To knowingly pass those documents to someone with no clearance, never mind no “need to know”, would be the end of a career. At best.

    Again, Petraeus should know this better than anyone, and set an example. It’s like having the Fire Marshall pouring kerosene on oily rags and tossing matches into them for kicks. It’s like having your doctor handing out cigarettes to elementary school kids.

  36. wr says:

    @Pinky: “The guy had people who didn’t know him taking out full-page ads accusing him of lying before he even spoke, because they had a hunch he might say something they wouldn’t like.”

    And what do you know — he turned out to be a lying scumbag. Move On was right, and all the members of congress who wet their pants rushing to condemn them for telling the truth look like idiots.