Former CIA Director David Petraeus is not the only one in potential legal jeopardy for the reported discovery of classified information on his former paramour’s computer.
Unauthorized recipients of classified information, too, can be prosecuted along with alleged leakers. And though these sorts of prosecutions are exceedingly rare and difficult to win, even their remote possibility might merit close tending now by Charlotte, N.C., resident Paula Broadwell.
“It would be very complicated,” Mark S. Zaid, a Washington-based attorney specializing in national security issues, said Monday, “and I doubt the government would want to go there.”
At the same time, Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, noted Monday that “the government takes the position that the unauthorized receipt and possession of classified information can be a violation of the law.”
It is, Aftergood stressed, a “contentious area.”
It’s also a shadowy area that’s back in the spotlight, amid reports that Justice Department prosecutors have recommended bringing charges against Petraeus. The New York Times, citing anonymous “officials,” first reported last Friday that prosecutors have recommended that the retired Army general face charges.
The decision whether to prosecute Petraeus, with its potential ripple effects on Broadwell, will be made at the “highest levels,” Attorney General Eric Holder said Sunday.
“The determination has yet to be made and we will just see how things play out before any final decision is made,” Holder said on NBC.
Broadwell’s attorney, Robert Muse of Washington, declined to comment Monday.
Broadwell co-authored a highly sympathetic biography of Petraeus, with whom she was subsequently revealed to have been romantically involved. In December 2012, federal prosecutors said they would not pursue cyberstalking charges against her, following an investigation into e-mails allegedly sent by Broadwell to another woman.
“As federal prosecutors, we are guided in the discharge of our responsibilities by considerations of fairness and justice,” William Daniels, spokesman for Tampa-based U.S. Attorney for the Middle District of Florida Robert E. O’Neill, said at the time.
The prosecutors’ December 2012 statement did not deal with the separate issue of classified information. News reports from 2012, citing anonymous sources, recounted that FBI agents, in the course of their alleged cyberstalking investigation, had found classified documents on Broadwell’s computer.
In previous news accounts, Petraeus has been quoted as denying that he provided classified information to Broadwell. Broadwell also previously has denied getting classified documents from Petraeus.
What law, or laws, might theoretically apply to any recipient of classified documents could turn on several questions, including the jobs of those who hold the information.
“Yes, there is potential liability, on paper,” Zaid said, “but there are lots of laws on the books that are never enforced.”
One federal law governs those who are an “officer, employee, contractor or consultant” for the U.S. government. Such an individual who “becomes possessed” of classified documents, “knowingly removes” them without authority and retains them at an “unauthorized location” can face a prison term of up to one year.
Broadwell, a West Point graduate, was a major in the Army Reserves at the time the Petraeus scandal became public. She had a security clearance, a point that Zaid cautioned “could change the dynamic” by increasing her legal liability.
Stricter penalties, including a prison term of up to 10 years, come with violating the Espionage Act’s prohibition against the gathering, transmitting or receipt of defense information with the intent or reason to believe the information will be used against the United States.
But that charge would be difficult to pursue.
“Although reporters frequently gain access to classified information, there has never been a non-espionage case in which a person has actually been charged with unauthorized receipt of classified information,” Aftergood said.
In 2005, Justice Department prosecutors brought charges against two former officials with the American Israel Political Action Committee. The men were accused of receiving classified information and transmitting it to lobbyists, journalists and diplomats.
But four years later, underscoring the courtroom complications, prosecutors dropped all charges against the two men. The trial judge had set a high bar for conviction, saying prosecutors would have to prove the defendants knew distributing the information would harm the United States.
“It was wrong to apply the Espionage Act to people who clearly were not spies,” defense attorneys Abbe Lowell, John Nassikas and Baruch Weiss said in a statement at the time.
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