TAMPA (Tribune News Service) — Just three days before he would be lavishly praised in a ceremony honoring his retirement after 37 years in an Army uniform, Gen. David Petraeus did something that would help tarnish his stellar reputation as a military leader.
It was something that, nearly five years later, is still sparking questions.
Sometime around Aug. 28, 2011, Petraeus delivered eight black books to his biographer, Paula Broadwell, an Army Reserve major who was staying at a private residence in Washington, D.C., during a weeklong trip to the nation’s capitol. The black books, according to court documents, contained classified information about the identity of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes, and deliberative discussions from high-level National Security Council meetings, and Petraeus’ discussions with President Barack Obama.
In short, some pretty interesting stuff. But it was material that neither of them should have had in their possession in an unsecured location.
A day after the retirement ceremony, Petraeus retrieved the black books from Broadwell. Five days later, Petraeus was sworn in as director of the Central Intelligence Agency.
The transaction over the black books would likely have remained in the shadows were it not for the fact that Broadwell and Petraeus had an affair. It was discovered after Broadwell began sending emails to Scott Kelley, who along with his wife Jill hosted parties at their big, brick, Bayshore Boulevard manse for Petraeus and other military leaders and diplomats visiting MacDill Air Force Base.
For the major players in this story, the saga continues.
Petraeus, who rose to fame for his role in helping blunt the insurgency in Iraq, later became head of U.S. Central Command, and was in charge of U.S. forces in Afghanistan before retiring and running the CIA, now has a criminal record. On April 23, 2015, he was ordered by a federal judge in Charlotte, North Carolina, to pay $100,000 in fines and serve two years’ probation after pleading guilty to the misdemeanor count of unauthorized removal and retention of classified material.
While Petraeus famously resigned from the CIA over the affair, he is still well-respected for his military acumen and frequently sought out for his advice on matters of great import. But the issue of the black books led to recent stories about a possible retroactive demotion, and with it, a sizable chunk of retirement money (stories that were put to bed Friday, according to USA Today, when the Pentagon told the Senate no such action would be taken).
The case also lives on because Scott and Jill Kelley have an ongoing lawsuit against the FBI and Defense Department over the leak of Jill Kelley’s name to the media. It’s a suit that has ensnared a sitting Cabinet member, former military leaders and several journalists.
Which brings me to Broadwell.
A recent story in the Washington Post provided an inside look at over the way he handled the black books. The story pointed out that the Justice Department opted not to prosecute Broadwell for possessing the classified materials because of her status as a journalist. She received the black books as part of her research into “All In: The Education of General David Petraeus,” which was published in 2012.
When it comes to Broadwell, at least two questions remain.
Should the Justice Department have spent the time and effort it did investigating her? And did she deserve to be treated as a journalist, and thus afforded protection from prosecution by the Justice Department?
Broadwell declined comment, but her lawyer shared the statement he gave to the Post.
“We established that Paula Broadwell was a fully credentialed member of the media and entitled to all the protections under the First Amendment and DOJ policy,” said Bob Muse. “Ultimately the government’s decision is consistent with what the attorney general told Congress and what President Obama stated: Namely, members of the media would not be prosecuted for doing their job.”
But the issue really isn’t that cut and dry, for Paula Broadwell is not your average journalist. She is also an Army officer, who had security clearance and thus signed the required statements vowing to protect classified information.
Other things muddy the water as well. The affair. Setting off the investigation that uncovered the affair, and ultimately, the black books. And emailing Scott Kelley what he and his wife consider threatening emails that resulted in security concerns for a couple of four-star generals and an FBI investigation. The investigation cleared Broadwell of any wrongdoing.
I reached out to First Amendment lawyers, attorneys specializing in military justice and national security issues, and reporter rights groups to get their opinions.
Their answer to whether the government was justified in investigating Broadwell and justified in not seeking prosecution because of her status as a journalist was, by and large, yes and yes.
Given the totality of factors, the government was “absolutely” justified in investigating Broadwell, says Mark Zaid, a Washington D.C.-based lawyer specializing in national security issues.
“She is an officer in the U.S. Army Reserve with security clearance,” says Zaid, “She is talking with a four-star general. He is discussing classified information that he has, that she has to know she shouldn’t have.”
That’s also the view of Charlie Rose, a director of the Center for Excellence in Advocacy and Professor of Excellence in Trial Advocacy at the Stetson University College of Law and a former Army Judge Advocate General officer, military lawyer and Army intelligence officer who retired in 2004 as a major.
Broadwell “violated” Top Secret/Sensitive Compartmented Information rules “you are required to follow when you have access,” says. When she received the black books from Petraeus, Broadwell “received classified information that she is not read on and did not have the right to receive. It was not properly secured.”
Given all that, prosecutors “were cherry-picking statutes to make the case go away,” Rose says, “probably in some combination that they went too far in trying to bring a case against Petraeus and some other national security issue or issues they don’t want out in the public.”
That Broadwell received the information in her capacity as a biographer gave her protection that the experts say is a First Amendment-inflected policy decision by the Justice Department.
“Take out the more scandalous aspects, she was clearly acting as a journalist,” says Gregg Leslie, legal defense director for The Reporters Committee on Freedom of the Press.
“It is the right policy choice” Zaid says. “Prosecuting Broadwell would open a Pandora’s box, because then, how do you distinguish between Paula Broadwell and the New York Times. There is no difference, from a legal standpoint.”
When it comes to prosecuting Broadwell, there’s another thing to consider, says Eugene Fidell, who teaches military justice at Yale University.
“It would be unconscionable really to treat her materially worse than he was treated,” Fidell says. “He got what strikes many as a very lenient outcome.”
Aside from the civilian justice system, Broadwell was at risk for having charges brought against her by the Army. But in December, Cynthia Smith, an Army spokeswoman, told me there is no active investigation against Broadwell. Friday, when I asked her about a Jan. 8 Charlotte Observer story quoting U.S. Attorney Jill Westmoreland Rose saying that the Army’s investigation of Broadwell continues, Smith repeated that there was no active investigation. Rose did not respond to a request for comment and her office could not provide much clarity on the matter.
The Pentagon last week announced the deaths of a soldier and Navy civilian supporting the ant-ISIS campaign Operation Inherent Resolve.
Sgt. Joseph F. Stifter, 30, of Glendale, California, died Jan. 28, at Al Asad Airbase, Al Anbar Province, Iraq, from wounds suffered when his armored HMMWV was involved in a roll-over accident. The incident is under investigation. Stifter was assigned to the 1st Battalion, 7th Field Artillery Regiment, 2nd Brigade Combat Team, 1st Infantry Division, Fort Riley, Kansas.
Blane D. Bussell, 60, of Virginia, died Jan. 26 in Manama, Bahrain, of non-combat related causes. He was assigned to Forward Deployed Regional Maintenance Center Detachment Bahrain at Naval Support Activity Bahrain.
There have been 2,347 U.S. troop deaths in support of Operation Enduring Freedom in Afghanistan, 21 U.S. troop deaths and one civilian Department of Defense employee death in support of the follow-up Operation Freedom’s Sentinel in Afghanistan and 11 troop deaths and one civilian death in support of Operation Inherent Resolve.
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