The Sexy-Time Exception to Retaining Classified Information

Last night, WaPo reported that the FBI is still trying to figure out how Paula Broadwell got classified information they found on her computer and–it looks like–in her home.

The FBI is making a new push to determine how a woman who had an affair with retired Gen. David H. Petraeus when he was CIA director obtained classified files, part of an expanding series of investigations in a scandal that also threatens the career of the United States’ top military commander in Afghanistan.

Senior law enforcement officials said that a late-night seizure on Monday of boxes of material from the North Carolina home of Paula Broadwell, a Petraeus biographer whose affair with him led to his resignation last week, marks a renewed focus by investigators on sensitive material found in her possession.

“The issue of national security is still on the table,” one U.S. law enforcement official said. Both Petraeus and Broadwell have denied to investigators that he was the source of any classified information, officials said.

The surprise move by the FBI follows assertions by U.S. officials that the investigation had turned up no evidence of a security breach — a factor that was cited as a reason the Justice Department did not notify the White House before last week that the CIA director had been ensnared in an e-mail inquiry.

As the WaPo correctly points out, this new investigative push is surprising, because the FBI has already been blabbing for several days that no charges would be filed.

Which is why I find it strange that Matthew Miller made this claim in a column arguing the FBI has handled the Petraeus investigation properly:

In this case, it appears the Department of Justice and Federal Bureau of Investigation handled the matter entirely in keeping with those rules and precedents. And, importantly, they passed the most crucial test faced whenever the department investigates a senior member of the existing administration: They conducted the entire investigation without playing favorites and without a hint of political interference.

While it’s not the central thrust of Miller’s piece (whether or not Congress should have been informed is), it’s too soon to know whether DOJ is playing favorites or not. But up until this latest report from WaPo, it appeared they were playing favorites.

After all, DOJ charged people–like Thomas Drake–for retaining unclassified information, information he had been directed by the Inspector General to retain. DOD charged Bradley Manning with retaining classified information.

Retaining classified information improperly is a crime, even if you have clearance to view the information.

Sure, it’s usually used as a proxy for other crimes for which no evidence exists. Or, in the case of Drake, in an effort to get him to plead guilty to other crimes.

But if DOJ is going to use it as a tool to persecute leakers, there is no reason it should exempt General Petraeus’ one-time mistress.

I’m not saying I want Broadwell to be charged, nor am I saying I think DOJ’s use of such charges in the past is proper. But that’s the problem with witch hunts, isn’t it? They either stick out as arbitrary political prosecutions, or they set a standard that few in the national security establishment could meet.

Update: Ut oh. Broadwell might get herself in trouble after all.

A computer used by Paula Broadwell, the woman whose affair with CIA director General David Petraeus led to his resignation, contained substantial classified information that should have been stored under more secure conditions, law enforcement and national security officials said on Wednesday.

The contents of the classified material and how Broadwell acquired it remain under investigation, said the officials. They spoke on condition of anonymity because they are not authorized to comment publicly.

But the quantity of classified material found on the computer was significant enough to warrant a continuing investigation, the officials told Reuters.

Though it sounds like they’re only contemplating stripping her security clearance.

Law enforcement officials also have said that they believe the continuing FBI probe into the matter is likely to end without criminal charges. If Broadwell is found to have mishandled classified information, she could face action under administrative security regulations.

Which would mean they’re striking a middle ground between treating her as they’ve treated others and retaliating against her for getting the sainted Petraeus in trouble (because of course grown men never get themselves in trouble).

Update: CNN now reporting that Broadwell has had her security clearance revoked.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

41 replies
  1. SpanishInquisition says:

    Actually this from Miller seems crazy given what has already leaked out:
    “They conducted the entire investigation without playing favorites and without a hint of political interference.”
    Per the Mueller leakers, they’re saying this wouldn’t have gone to Clapper if Cantor didn’t ask if Petraeus was under investigation, which makes no sense. I think the WH is tying themselves up in knots with trying to explain away the CIA Annex, not notifying Congress, etc.

    I think we’re just hearing about this now because the WH wanted to get the news cycle going on how there was no national security at issue as a reason why Congress wasn’t notified. Now that the WH has put it through that spin cycle, now they’re saying there’s national security involved afterall. I think the FBI – at the behest of the WH – has acted totally inappropriately in not having notified the relevant committees in Congress months ago about the investigation.

    However, I’m concerned about the Doublemint Twins in that I see them as more of a national security threat than All In. Given their financial situation and potential exposure to classified information, it would seem to make them a risk for foreign governments to get information from them either knowingly or unknowingly. I notice there’s a big campaign going on for General Allen by trying to excuse it away about talk about parties, but foreign governments would love to know the travel plans of high ranking military leaders.

  2. Jim White says:

    What I find most frustrating about the FBI’s behavior and the chattering class parroting their conclusions without question is that the FBI has admitted that they only have the word of Petraeus and Broadwell that she didn’t get the classified info from him. But they freely admit they don’t know how she got it. Until they have proof of her getting it from another source, wouldn’t proper investigative technique say the FBI should at least formally remain open to the possibility that P&B are lying?

    And now after the house search, we most likely have two different sets of classified info in Broadwell’s possession. The material from the house needs a fresh start on the process of determining how she got it.

  3. Richard Shindledecer says:

    Welcome to our new multi-tiered, multi-faceted criminal justice system. It’s only a crime if it’s commited by someone you don’t like. The people you like/need can do anything up to and including torture and we’ll look forward.

    Disgusting.

  4. DonS says:

    I still think Obama needs to appoint someone to oversee this growing scandal (And tell us about it, since this is supposed to be the most transparent administration evah.) Afterall, so far, we know the CIA, The DOD, the FBI, and Congress members are all involved. All, with the exception of Congress members, for which Obama has direct supervisory responsibility. Politics are already involved. So when the pols begin to start slinging political charges directly and heavily, is Obama going to stay above the fray? Who is he going to back, assume he can’t run his own coverup? His absence so far hasn’t meant too much. But at some point, and the sooner the better, this is one time the American people deserve him to step up an act like the ‘bipartisan’ adult in the room.

  5. scribe says:

    Y’know, EW, now that you’re getting 3 or more posts a day out of that Ass-Kissing Chickenshit, I think it’s time to send him a thank you present.

    I think a fruit basket would be appropriate.

  6. Jim White says:

    @scribe: That’s ass-kissing LITTLE chickenshit. And Marcy already pointed out that he insists on fresh pineapple daily.

    I’m thinking the “little” bit, and compensation for it, gave us both Petreaus’ upward career path and its eventual downfall.

  7. SpanishInquisition says:

    @Jim White: I expect Holder has been controlling this for months despite claims of the WH that it didn’t know anything about it until after the election. I think this is entirely political being stage managed by Holder, so I don’t expect proper procedure to be done. If it came out that Petraeus lied it would hurt the Obama administration, so they’re not going to look for evidence that he lied. It might come out at some future date that he lied, but it will be in some Friday news dump much later…just like how for the previous news cycles it was claimed national security wasn’t an issue being purely about “human drama” so that’s why Congress wasn’t informed.

  8. marksb says:

    I suggest a gift certificate to Running Warehouse. I think he’s going to have plenty of time for long, solo runs over the next few years. Unless he gets a consulting gig at GE or lobbying job or a slot at Fox.

  9. Mick Savage says:

    Please, pineapple only in that fruit basket – and smile when u say that pardnuh.

    It makes them even more studly :)

  10. greengiant says:

    Why is anyone going after Holder now? Is Holder about to investigate or prosecute anyone for financial crimes? or mortgage service fraud? or voter disenfranchisement? or FauxNews US cellphone spying or investigate Rove, the Koch brothers, or Peterson? or investigate anyone for overseas bank accounts? or is Holder going to drop charges against whistle blowers or leakers of NSA multi billion dollar boondoggles or Gitmo torture/killings?

    Maybe Benghazi gate has more to do with October surprise crimes than situation room rumors.

  11. Frank33 says:

    And we have a very messy divorce, with a young child which is a Big Sad. Here are a few more pieces to add to Spy Fall Pie.

    Jill owes child support, and lawyer fees. She said Irak War Profiteer Wolfe pushed her down the stairs in the Kelley Mansion. Natalie lives there. Although they may have to move because of all the lurkers.

    Jill also testified for her sister and it was unbelievable.

    Kelley testified that her sister was holding the couple’s baby in one hand and “somehow was able to stand her ground on the staircase” as Wolfe, “who is substantially larger and stronger … pushed Ms. Khawam from above with both hands and all of his might.”

    Wolfe is not the perfect father, but he probably knows one or more of the Cheney’s. Anyone have the URL for FriendFinder?

    Judge Kravitz has not given Wolfe a free pass. He wrote in the Nov. 9, 2011 ruling that Wolfe “does not possess an entirely healthy psychological make-up.” And he noted that Wolfe had taken “questionable deductions” on his tax returns and “may have been less than fully candid in his testimony about contacts he may have had with the FriendFinder online dating service.

    I suppose I now have to get on the CIA Google Mchine to look at Sandra Wilcof, Wolfe’s lawyer and Khawam’s lawyer, Greg Jacob, with the law firm of O’Melveny & Myers. And there is this. Natalie owes $300,00 to another lawyer, a D Fundraiser.

  12. klynn says:

    Here’s what stinks…If this is “human drama” then the whole show and distraction stinks. If it is an intel op against some of our highest in the military and our intel shops, it stinks. There are elements here that smell like intel ops. Either way, we are “played” as a nation.

    I still do not buy the whole Abbe Lowell “friend of family” representation crap. So, I am still asking, on the heels of his “other” spook trials, “Why Lowell?” If he is a family friend, “How? Friends for how long?” Should he even be representing her?” None of it “washes” as a clean narrative.

  13. FrankProbst says:

    I think Broadwell has to have some sort of immunity deal at this point. She lawyered up, and THEN voluntarily allowed the FBI to search her house. I can’t imagine any lawyer allowing that to happen without some sort of deal in place. And I can’t imagine that the FBI would make a deal with her unless she had some sort of trump card.

    Contrast her with Jill Kelley, who’s REALLY lawyered up and isn’t talking. I really don’t know what the hell is going on at this point, but it seems like there’s something big going on behind the scenes, and I think it’s even more than the other other woman and the other general.

  14. KM says:

    klynn @ 16,

    I wonder how much of a discount on that $1 million retainer fee being a family friend of Abbe’s gets you.

  15. KM says:

    I’m not sure about referring to the treatment of classified information in this case as a “sexy-time exception”. Strikes me that it just entrenches the unproven assumption that this relationship — and by extension the Kelley-Allen relationship — was simply about sex. Plus the idea that Blackwell’s possession of the classified information was essentially innocent, if technically improper.

    (Just using it for my dissertation! Forgot to return it after I got my book contract! Need to know stuff if I’m going to act as lover-boy’s public spokesperson, or play-act at being Condi Rice at speaker’s engagements!)

  16. Frank33 says:

    Oops, it is Natalie who owes child support and lawyer fees. It is hard to know which twin is which. And it is the NSA Google Machine.

    Apparently, Gerald T Harrington, a Rhode Island attorney was engaged to Natalie and loaned her unsecured $300,000. I have some advice for Gerald, if he sees Natalie/Jill. Run, run as fast as you can, do not look back, and let her keep the ring.

  17. smoke says:

    Pat Lang posts a cultural background – of Lebanon, of Lebanese expatriates along the Gulf (of Mexico) coast, of civilian-military relations around big mil bases.

    People in the US and in many other places shy away from the idea of cultural generalizations but I do not, with caveats, sometimes…

    Lebanese society circles in the larger cities, especially Beirut, are centers of intense social and political intrigue at all levels. Both Christian and Muslim communities are devoted and obsessed with conspiracy as a way of life. “Plotting” is to the Lebanese as Sunday TV football is to most “gringo” Americans. There are circles with circles within circles….

  18. jerryy says:

    It is a bit remarkable as well that how the information leading to P&B was obtained is being shifterd away from scrutiny.

    I mentioned a day or so ago how to do IP tracing along with some implications of how the FBI would have to get around some restrictions (my reacting to the headline tabloid style of the news being reported). I mentioned that to go beyond the geographical limitations imposed by the trace, you would have get a court order to have the ISP turn over their records and to an extent even the turned over info is limited. That is true, you do an i do, need a court order, but the fallout from the Patriot Act and FISA debacle now allows law enforcement folks to get this info with only a subpoena which they issue themselves.

    The reports on the FBI’s methods only makes matters worse. They are supposed to have used hotel stay information (corresponding to the ISP information) to narrow the list of possible suspects to just a few, the Venn Diagram approach — and some folks think they will never use mathematics after they get out of school — and with Ms. Broadwell’s name popping out, they (the FBI’s cyber-team) then moved forward.

    This makes things worse than before. This means a whole lot of resources were used on fishing expeditions to gather up info on a lot of citizens activities, their travel, lodging, payment transactions, internet usage, etc. all to investigate emails with no more of a reported threat than ‘stay away from him’. Whether this was done via a lot of subpoenas or NSLs has not been talked about, but this goes into a lot of power being used to ruin lives.

    So why are there not more resignations coming out from the investigative side? After all, Gov, Rick Perry has, almost on a routine basis, went beyond any putative threat made by Ms. B., yet he is still head of the State of Texas.

  19. P J Evans says:

    @jerryy:
    Well, there was the whole thing with her in Afghanistan too. It seems likely to me that anything they had going on there would have been much more discreet. And I’ve read that she was sitting in on Davy’s meetings where they were discussing information above her classification level, which might explain some of that material. (Remember, Broadwell was also a Pointer with a clearance.)

  20. joanneleon says:

    First there were no national security issues, no leaks, no problems with disclosing classified information. It was all just “human drama”. Case was going to be closed. Petraeus was assured no charges were going to be filed against him. Presumably the same goes for Broadwell. All of this was reported many times in various news articles.

    Then, suddenly they are searching Broadwell’s house and it looks like there was some kind of a problem. What changed? Was the initial reporting inaccurate?

    If it was true that the White House and the Congressional committees were the last tot know about all of this (I don’t really believe that anyway) did they step in and demand a more thorough investigation?

    It’s not like they didn’t have enough time to investigate this thoroughly though. This had been going on for months.

    Did something new happen during the past week or so, and that was the problem that caused renewed investigation?

  21. KM says:

    joanneleon @30,

    Principals in the affair pushing back against a human-drama cover-up (or, at least, public cover story)?

  22. orionatl says:

    @smoke:

    thanks for the cite.

    lang knows his arab society pretty damn well.

    specificity to the level of american gulf coast?

    amazing.

  23. orionatl says:

    what i want to see are the specific classified documents by title or at leadt simply by classification.

    don’t tell me if Power twisted the fbi’s toe just a bit, theybi wouldn’t claim internet-available documents from fourty years ago were “classified” and an authoritarian right-wing judge would agree.

    there are levels of classified documents. i got a number of security citations from the night crew for not putting the 4.5′ bar thru my file cabinets. there was not a document there that would have intetested either the kgb or the nyt – or for that matter the agency officials to whom they were addressed :)

    so, what classified docs are we dealing with?

    the tightly-held plans for american – excuse me, coalition – withdrawal from afghanistan?

    or the list of dod officials/officers currently serving in afghanistan?

  24. readerOfTeaLeaves says:

    @joanneleon:

    Did something new happen during the past week or so, and that was the problem that caused renewed investigation?

    Assuming that Abbe Lowell was hired this week, it’s looking like it.

  25. ryan says:

    @klynn: Lang is a friggin’ ditz. If he wants to be taken seriously in his insinuations about “Paula Krantz Broadwell”, he should try Google first. Of course, to do so, he’d have to spell her name correctly (it’s Kranz), which may have been the problem. Her mom is a facebook friend of an evangelical group. The connection Lang is trying to make ain’t there, making the insinuation pretty offensive. The guy seems to have a CIA connection. Is it common in the CIA to fail in your research on a target because you couldn’t spell their name? He’s got some other guy commenting who clinches the insinuation, only he’s got her maiden name as Ganz. Blind leading the blind over there.

  26. Kathleen says:

    @SpanishInquisition: Micheal Isikoff and David Corn were on Chris Matthews Hardball the other night talking about, well snickering about the sex Petraeus issue. Really yucking it up. Like guys in a locker room. Nothing here. Move on. Just no possibility that either of these two women could be involved with any foreign intelligence operations. Neither of those two fellas seem like they will do any in depth reporting on this issue.

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