Politics & Policy

Petraeus Is Protected by a Politicized Justice Department

(Getty Images)
He committed several felony violations but is permitted to plead guilty only to a misdemeanor.

David Petraeus, the former top U.S. military commander and CIA director, is reportedly being permitted by the Obama Justice Department to plead guilty to a misdemeanor in order to end the criminal investigation into his mishandling of highly classified information. It is just another example of Obama’s hyper-politicized administration of justice: One set of rules for government insiders like Petraeus, another set for most Americans, and a third — law as a weapon — for use against Obama’s political detractors and scapegoats.

General Petraeus committed several serious felony violations of federal law. And not in a one-off lapse of judgment; this was a series of offenses committed over an extended period of time. Clearly, Petraeus believed he was a law unto himself. A notorious publicity seeker, he treated journals chronicling his highly classified activities as if they were his own property, to be maintained and exhibited as he saw fit — mainly, for use in burnishing his carefully cultivated image — rather than as federal law dictates. Even after he was caught, he continued to lie, obstruct justice, and put the government that had so elevated him to additional burdens to recover the records he was illegally hoarding.

Had he not negotiated a plea, Petraeus should have been charged in a multi-count indictment. If he wanted to dispose of the case without a trial that would have further disgraced him, he should have been required to plead guilty to at least one felony count and to have admitted his lies to government officials — misrepresentations that, under the sentencing guidelines that apply to people who don’t get special treatment, instruct judges to impose a term of incarceration.

Petraeus, instead, will get a slap on the wrist. The New York Times reports that he will be permitted to plead guilty to a single misdemeanor count of unauthorized removal and retention of classified information. Moreover, while that charge carries a potential punishment of one year’s imprisonment, the Justice Department has agreed to recommend a sentence of just two years’ probation plus a $40,000 fine.

In connection with the disposition of the criminal case, the U.S. attorney for the western district of North Carolina (in Charlotte) has filed a document outlining the factual basis for the guilty plea — i.e., what prosecutors would be in a position to prove were Petraeus to exercise his right to a trial. It explains that, in his tenure as commander of the U.S. and coalition forces in Afghanistan, Petraeus maintained journals: five-by-eight-inch notebooks that contained his daily schedule and notes he took regarding matters that were discussed in meetings and briefings. Eventually, there were eight journals in all, and they were known as Petraeus’s “black books.”

As he well knew, the black books contained extremely sensitive classified information, including, according to the prosecution’s outline, “the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and defendant DAVID HOWELL PETRAEUS’s discussions with the President of the United States of America.”

As is now widely known, Petraeus had an extramarital affair with his biographer, Paula Broadwell, a former Army reserve officer who interviewed him during 2011 for her fawning book, All In: The Education of General David Petraeus.

On August 4, 2011, after he returned to the U.S. from Afghanistan but a few weeks before he took over as CIA director, Petraeus submitted to a tape-recorded interview in which Broadwell asked him about the black books, noting that she and Petraeus had never gone through them together. Petraeus replied, “Umm, well, they’re really — I mean they are highly classified, some of them. . . . I mean, there’s code-word stuff in there.”

“Code word” is a designation for extremely high-level classified information. Even officials with top-secret clearances are generally not eligible to be “read in” on national-defense secrets categorized as “code word.” Access is tightly restricted to officials with a “need to know” the information in order to perform their highly sensitive — and often deadly dangerous — responsibilities

Nevertheless, about three weeks later, on August 27, Petraeus agreed in an e-mail to provide the black books to his mistress/biographer. He delivered them to her the next day at a private residence where she was staying during a one-week trip to Washington.

Needless to say, that residence was not approved for storage of classified information. Such storage areas are equipped with various protections, and access to them is tightly controlled, as is appropriate for national defense secrets. Yet Petraeus permitted Broadwell to keep the black books for three days.

The provision of such classified information to a person not entitled to receive it is a felony violation of the Espionage Act, punishable by up to ten years’ imprisonment. Moreover, specifically with respect to revelations about covert agents, it is a felony violation of the Intelligence Identities Protection Act (IIPA) for a government official, intentionally and without authorization, to disclose information that identifies a covert agent whose identity the government is trying to conceal. IIPA offenses are punishable by up to 15 years’ imprisonment,  

Obama administration officials and the general’s apologists stress that there is no indication Petraeus harmed the United States or helped a foreign government by disclosing the nation’s most closely held secrets. That is a straw man. Other provisions of federal law cover that kind of treasonous behavior.

By contrast, the statutes that Petraeus violated do not require proof that harm was done — or even intended. Rather, because of the significance of the information to national security — coupled with the fact that, to acquire the information, our government must often promise to keep it secret and secure — Congress has made its mere unauthorized transmission a felony. At most, the lack of actual or intended harm to the United States is a sentencing issue, calling for a term of years at the lower end of the ten- or 15-year statutory range. It is not a defense.

None of that was news to Petraeus. After he took the helm at CIA — i.e., a few months after he had illegally provided classified information to Broadwell — he personally issued an admonition to all CIA employees that “unauthorized disclosures of any sort . . . betray the public trust, our country and our colleagues.” “We swore to safeguard classified information,” he added, and “those oaths stay with us for life.”

In mid 2012, Broadwell bizarrely harassed an acquaintance of Petraeus’s in Florida. Owing to a resulting investigation, which included examination of Broadwell’s computer, the FBI learned about the affair and the likelihood that Petraeus had mishandled classified information. Though not a target of the investigation at the start, Petraeus was interviewed several times and acknowledged that he understood it was a felony to make false statements to FBI agents conducting an investigation.

That, of course, is common knowledge, especially among government officials. As CIA director, though, Petraeus was more well aware than most. As he knew, the feds were then wrapping up an investigation of John Kiriakou, a former CIA agent who had disclosed the identity of a covert agent to a reporter. Kiriakou was originally charged with violating the IIPA and the Espionage Act, as well as making false statements to the FBI — again, all felonies.

The Obama Justice Department required Kiriakou to plead guilty to the IIPA felony and serve two and a half years in prison. Only in exchange for that were the other two charges dropped. Even that short-changed the misconduct, at least according to the sentencing judge, who said she’d have imposed a much harsher sentence were it not for the plea agreement. Petraeus cheered Kiriakou’s prosecution in an announcement to all CIA employees on October 23, 2012, asserting: “Oaths do matter, and there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.”

Three days after Kiriakou pled guilty, Petraeus was interviewed by FBI agents. As the prosecution’s outline recounts:

The [FBI] agents questioned DAVID HOWELL PETRAEUS about the mishandling of classified information. In response to those questions, defendant DAVID HOWELL PETRAEUS stated that (a) he had never provided any classified information to his biographer, and (b) he had never facilitated the provision of classified information to his biographer.

As the outline elaborates, these statements were false: Petraeus was patently aware that he had shared his black books with Broadwell. And given that Petraeus knew the FBI had been investigating Broadwell for months, it is astonishing that he would tell such foolish lies.

Yet, he was far from done lying.

Once President Obama’s reelection was secured in November 2012, Petraeus’s affair became public and he resigned from the CIA in disgrace. In a public statement, Petraeus expressed remorse, calling his behavior “unacceptable, both as a husband and as the leader of an organization such as ours.”

About two weeks after his resignation, however, at his CIA exit interview on November 26, when he was formally read out of various classified programs, Petraeus made the following representation: “I give my assurance that there is no classified material in my possession, custody, or control at this time.” But Petraeus was still retaining the black books.

He continued to hoard them even after the secured facility for classified information that had been installed in his home was closed and de-accredited in early 2013. In the end, unable to trust Petraeus’s assurances, the FBI had to get a court-authorized search warrant (on showing probable cause of Petraeus’s criminality) to recover the classified information. On April 5, 2013, agents searched the Petraeus residence and found the books in an unlocked desk drawer in his first-floor study.

When Dinesh D’Souza, a conservative Obama critic, committed a technical campaign violation, the Obama Justice Department not only refused to let him settle the matter with a fine, as is routine; it indicted him on not one but two felony counts — adding a false-statements charge (with a possible five-year jail term) because the felony that Congress had tailored for the offense had only a two-year penalty. The Justice Department also aggressively sought a prison sentence of well over a year for D’Souza — which the court refused to impose, recognizing it as overkill.

On September 12, 2012, the al-Qaeda terrorists Obama was claiming on the campaign trail to have “decimated” murdered four Americans in Benghazi. The president and his minions quickly decided to falsely portray the terrorist attack as a “spontaneous protest” in response to an anti-Muslim video. The Justice Department did its part, trumping up a prosecution to scapegoat the video producer (under the guise of a parole violation). In effect, he was jailed for several months for nothing more than exercising his constitutional right to free expression.

Let’s compare David Petraeus. He committed serious violations of national-security law. He gave repeated false assurances that he was not concealing classified information. He lied to FBI agents about disclosing that information — at the same time he was hypocritically warning subordinates to honor their secrecy oaths, and was praising the Justice Department’s felony prosecution of a CIA agent who was guilty of the same kinds of offenses that Petraeus himself was then committing. So untrustworthy was he that the government was put to the burden of going to court for permission to search his home to recover classified information Petraeus should never have taken and was obliged to return on request. And there they found the black books — secrets of the most sensitive nature that he cavalierly kept in an unsecured desk.

General Petraeus served his country with courage and distinction. That record certainly should have weighed in his favor . . . at sentencing. His deliberate and reprehensible criminal conduct, however, cried out for a felony prosecution. That it was treated instead as a trifling misdemeanor is another shameful chapter in the Obama legacy of politicized justice.

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