No Harm No Foul: Time to End the Petraeus Saga
Jeff Goodson
It is a tenet of our system of justice that the punishment should fit the crime. Since 2012, the U.S. Justice Department has been investigating whether retired US Army four-star General David Petraeus leaked classified information to his biographer Paula Broadwell, with whom he had an affair after retiring from the military to take the position of CIA Director.
The transgression occurred when Petraeus loaned his personal notebooks from Afghanistan to Broadwell in August 2011. The eight 5”x 8” notebooks included no classification markings, but did contain information that arguably could or should have been classified. Broadwell was in possession of the notebooks for a total of four days before Petraeus recovered them, keeping them at his home near Washington, D.C. (1). Also under investigation has been the ancillary question of whether Petraeus lied to the FBI about loaning her the notebooks, and to the CIA about whether he retained any classified information after he left the Agency.
On February 22nd, Petraeus pled guilty in federal court to a single misdemeanor count of unauthorized removal and retention of classified material. The prosecution recommended a punishment of two years’ probation and a $40,000 fine (2). U.S. Magistrate David Kessler will review the plea when he takes up sentencing in late April.
The Petraeus plea deal, announced in early March, formally validates the position that these events were misdemeanors, rather than high crimes calling for harsher punishment. And it found support across the political spectrum. Even before the announcement, Democratic Senator Diane Feinstein had urged the Justice Department not to pursue criminal charges at all against Petraeus. And Republican Senator John McCain had sent a letter to Attorney General Eric Holder “asking for leniency and a quick disposition.” After the deal was announced, both Senators were quick to endorse it (3)(4).
Others, however, were not. The debate over the fairness of the plea bargain has been heated, both within and outside of the military community. Some in Washington claim a disparity between this sentence and those handed down for similar transgressions to lower government officials. Fox News pointed to the case of CIA Officer John Kriakou who got 30 months in prison in 2012 for “intentionally disclosing the identity of a covert agent to a reporter” (5). Swinging for the bleachers, Jeff Stein of Newsweek pointed to Bradley Manning who in 2013 got 35 years for intentionally giving to Wikileaks the largest volume of classified material ever leaked to the public; former CIA operative Jeffrey Sterling, who awaits sentencing for a January conviction of leaking “details of a failed mission against Iraq to New York Times reported James Risen;” and Edward Snowden, who stole the crown jewels from the NSA, turned them over to media and the Russians, and should be standing in front of a firing squad.
Others say that the sentence is roughly comparable to comparable cases. The Washington Post, for example, reported that in 1996 former CIA Director John Deutch agreed to plead guilty to a misdemeanor and pay a $5,000 fine for storing classified documents on his home computer (7). The New York Times reported that former National Security Advisor Sandy Berger pled guilty in 2005 to a misdemeanor, and paid a $50,000 fine after getting caught slipping classified documents out of the National Archives (8). The Times also reported that Attorney General Alberto Gonzales was not charged at all for keeping information about the NSA’s wiretapping program at his house in 2008.
In examining whether the loan of Petraeus’ personal notebooks to his biographer caused damage to national security, it is first useful to look at how the information was used. The book that Paula Broadwell co-authored with Vernon Loeb (All In; The Education of David Petraeus) was not so much an “adulatory biography” as some media have tried to characterize it, but rather a detailed contextual biography of the man at the center of the evolution of the first US military counterinsurgency doctrine to be articulated in decades. As author Mark Bowden said of Broadwell’s book (9):
“Anyone seeking to understand the nature of American war-fighting in the twenty-first century, how it is both like and utterly unlike that of any previous one, needs to understand Petraeus, his remarkable career, his thinking, and his character. All In is an excellent place to start.”
Paula Broadwell wasn’t some bimbo writing a cheap novel or, worse, some reporter intent on publishing U.S. secrets. Broadwell was a respected military professional in her own right at the time, with her own high-level security clearance. She graduated with honors from West Point, had more than ten years’ military service in the US Army and Army Reserve, and had over fifteen years’ experience with counterterrorism and counterinsurgency, including with the FBI’s Joint Terrorism Task Force. The FBI itself tried to hire her in 2006, an opportunity she passed up to go to Harvard (10). Federal prosecutors found that no classified information was reported in Broadwell’s book (11), moreover, and President Barack Obama himself said that the leak in no way “would have had a negative impact on our national security” (12).
At the end of the day, the best take on the events is that of an unidentified military officer who was recently quoted by Politico (13):
“(T)he government’s two-year investigation ultimately came down to this: Petraeus gave his own personal notes, which were not marked as classified, to someone authorized to view such information, who did not release it…”
In short, no harm no foul.
Judge Kessler will hopefully agree to the plea bargain in April, when he decides what level of punishment fits the specifics of this particular crime. His decision will then hopefully put behind both Petraeus and the American people a saga which has kept one of the most critical national security voices of our era under White House control, at a time when the long-term threat to our national security has risen so dramatically.
End Notes
[1] The Daily Beast. Petraeus Mistress Got Black Books Full of Code Words, Spy Names, and Obama Briefings. 3 March 2015.
[2] New York Times. Petraeus Reaches Plea Deal Over Giving Classified Data to His Lover. Michael S. Schmidt and Matt Apuzzo. 3 March 2015.
[3] Politico. David Petraeus plea could pave way for comeback. Philip Ewing. 3 March 2015.
[4] The Hill. McCain stands by Petraeus after guilty plea. Martin Matishak. 3 March 2015.
[5] Fox News. White House acknowledges Petraeus advising gov’t on ISIS, despite guilty plea. 16 March 2015.
[6] Newsweek. Petraeus Advising White House on ISIS. Jeff Stein. 14 March 2015.
[7] Washington Post. Petraeus reaches deal to plead guilty to misdemeanor; likely won’t face prison. Adam Goldman and Sari Horwitz. 3 March 2015.
[8] New York Times. ibid.
[9] All in: The education of General David Petraeus. Paula Broadwell with Vernon Loeb. Penguin Press, NY. 2012. Mark Bowden cover note.
[10] Wikipedia. Paula Broadwell. 4 March 2015.
[11] Washington Post. ibid.
[12] New York Times. ibid.
[14] Politico. David Petraeus plea could pave way for comeback. Philip Ewing. 3 March 2015.
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Comments
Mr. Goodson,
I have no issue with your article, per say. But it strikes me that you've skimmed over the larger issue.
A woman who is basically a groupie for Generals and Federal Agents, set her sights on General P. There is no suggestion that the General was other than polite to this woman, yet she continued to pursue him, not so aggressively to seriously annoy the General, who was probably used to this sort of attention (surprise surprise! Some Generals are chick magnets!); but to a degree that the Generals Biographer/mistress took offense and sent the women threatening emails to try and get her to stop pestering the General.
Meanwhile, this groupie was having a sordid relationship with an FBI Agent in the Cyber Crimes Division, the details of which have never been fully disclosed, but was at least steamy enough for this FBI Agent to send explicit photos of himself ("Sexting"). Threatening emails from the Generals mistress in hand, the Groupie runs to her FBI Agent Beau, who opens a criminal investigation on the Generals Mistress without ever disclosing his personal relationship with the Groupie.
Whereas normally this sort of weird abuse of authority would go nowhere, General P., then Dir. of the CIA, was engaged in an internal dispute with other very powerful individuals within the Administration, including the Secretary of State and the WH National Security advisors, over the politicalization and misrepresentation of a Terrorist attack and related policy. Moreover, it was an election year, and it seems highly unlikely that General P. would go along with a preposterous, and fictional narrative favored by the WH, that misrepresented the ACTUAL state of U.S. Foreign Affairs and National Security. For reasons that have never been very clear, the Department of Justice gave the green light to the FBI Cyber Crimes Division to use these email exchanges as a pretext to broaden their investigation to include the then HEAD of the CIA.
The CIA has it's own Inspector General, and Special Agents who investigate suspected security clearance breeches. The DoD IG has an Intelligence Inspector General, with CIS Agents, which investigate alleged misconduct all the way up to Joint Chiefs of Staff. The FBI has the National Security Branch, which was formed to handle exactly these sorts of investigations. Moreover, the Attorney General and DoJ do NOT have jurisdiction over the CIA (see the Hamden Decision) Directors office in these classes of suspected misconduct.
Yet the FBI's Cyber Crimes Division somehow was authorized to conduct a RAID on the Director of the CIA based on a catty email his Biographer/mistress sent to a groupie who was having some sort of sexual relationship with the Special Agent who opened the case? As pointed out, the Generals Biographer had a very high grade of security clearance, almost certainly higher than any of the FBI agents who conducted the Raid of the General's home (those FBI Agents certainly weren't cleared to rummage through the Dir. of the CIAs range of documents).
Then for the next two years and counting, the FBI and DoJ basically holds General P. in legal limbo, which reeks to high heaven of a political hatchet job to brow beat General P. into remaining silent over the actual dispute… which now clearly involves a Candidate for President in 2016 as well as the current NSA and others in the Admin. General P.'s second in command at the CIA, an analyst, prevaricates and waffles, but decides to leave the CIA in order to work for… the Former Secretary of State in a private capacity for a very generous salary.
What I think is being overlooked here is context. General P., the architect of a turnaround in Iraq which the current Admin abandoned, was arguably taking a lesser position by accepting the CIA gig. He was, in fact, defending the CIAs own field officers in his dispute within the Administration. A dubious and cynical political decision was adopted with full knowledge that to do so was to value Party over Country or National Interest, something General P. was unlikely to go along with. Personally, I suspect he'd already given informal notice of his intent to resign, and with the cooperation of the FBI, a means was found to insure the General's silence.
The lessons that should be taken from this are a matter of opinion and personal integrity. Personally, I was and am surprised the FBI would stoop so low, or allow the Bureau to become politicized to the extent it's willing to subvert the National Interest. I was a part of the debate that led to the formation of the National Security Branch of the FBI, and frankly, I'm now of the opinion that the NSB failed in its existential mission. I was and am surprised that other, less successful and effective Generals than General P. imagine that they are not every bit as bound by the current Admin's political litmus test as he was. The Oath of Commission is very clear, but that's a matter for those Officers consciences.
There's more, but I'd like to end with this point. Are we now to judge Military Commanders not on their effectiveness, or ability, but rather over the depth of their ambivalence regarding dirty politics and politicians? In the future will the United States Military be commanded by officers who are MORE Golden because they prove they'll be MORE Silent, MORE compliant with regards to the cynical misdeeds of electioneers? If even famous Generals can be denied due process and be held in legal indenture by the FBI and DoJ, is there ANY point at which the Department of Defense will object to interference by domestic Federal law enforcement?? etc.
A. Scott Crawford
Maybe instead of passing judgment on people for being people and not being perfect, we should just get to over our excessive self-righteousness. Ike was critical to winning to WWII, so I don't really care if he had an affair in England, as I'm sure many junior officers and enlisted also had. MacArthur also had a Filipina concubine of sorts when assigned to the Philippines, but that doesn't undercut his ability to lead to lead at the strategic level. GEN Petraeus also was an exceptional leader, who turned the course of the war around in Iraq, and sacrificed years of his life to serve to our nation. Who knew he was actually human and could actually make some mistakes. These issues are family issues that need to be resolved by the family. Instead, we say we're sorry Generals, your exceptional intellect and sacrifice mean little if you have an affair, get a DUI, or any other offense. At that point we break out the eraser and erase everything else about you but the negative event. It is amazing how the piss ants crawl out of the woodwork when a giant falls over a relative minor offense, a minor offense tied to being human. There is a big difference between someone having an affair, getting a DUI, etc., than someone stealing money or selling secrets to enemy, but we can't seem to distinguish the difference anymore. Make no mistake, this shameful self-righteousness impacts everyone, I have seen many good enlisted men destroyed by a personal event that shouldn't have reflected upon their careers.
The Secretary of the Army needs to issue a Letter of Reprimand for adultery before his actual retirement. Since General Petraeus had several assignments as a four-star general, which all required renomination, he should not lose a star as there was no adultery performed as the MNFI Commander or CENTCOM Commander. However, he needs to some form of rebuke as less prestigious officer would receive a General Officer Memorandum of Reprimand and have to be appear before a Show Cause Board to stay in the Army.
Our elders told of a time when my mom's Native American uncle served as a U.S. Army private in World War II. He was killed in action on a forgotten battlefield in Alsace, the Battle of Bitche. After the war, the family became informed of the affair between General Eisenhower and secretary Kay Summersby. This has always disgusted the family: that the general was having a soft time behind the lines with a mistress, while our poor "Miguelito" died on a miserable, snow-laden battlefield.
Really, I don't think the matter is personally relevant to the Jeff Gordons of the world. If our elders could be asked, they would say the determination should come from the families of sons and daughters that were casualties of war during the period of Petraeus' command.