This is not going to end well for the FBI.
We are now entering the second phase of the David Petraeus scandal. The first phase began on Nov. 9 when Petraeus revealed that he had had an affair and resigned as CIA director. For the next week, the press scrambled to keep abreast of every head-spinning new plot twist. General Petraeus slept with whom
? Jill Kelley did what
? Petraeus' biographer/mistress titled her book what
? Phase 1 of any big national scandal ends when the New York tabloids stop writing their laugh-out-loud cover headlines ("Cloak and Shag Her" screamed The New York Post) and relegate the story to the inside pages. That happened Friday.
In Phase 2, people begin to grapple with the scandal's larger meaning, assuming, of course, that it has some larger meaning. The sordid John Edwards affair, for instance, showed that he had never been fit for public office, much less the vice presidency. The Bernie Madoff scandal showed that investors will happily suspend disbelief when their fund manager's returns are too good to be true.
But the Petraeus scandal could well end up teaching some very different lessons. If the most admired military man in a generation can have his email hacked by FBI agents, then none of us are safe from the post-9/11 surveillance machine. And if an affair is all it takes to force such a man from office, then we truly have lost all sense of proportion.
Let's go back to the scene of the so-called crime, to Tampa, Fla., where Kelley, an attractive wannabe socialite, gets some unsettling emails from an anonymous sender. If she had any sense, she would block the email address and be done with it. But because she knows that men will bend the rules for her - after all, high-ranking military officers granted her unfettered access to MacDill Air Force Base - she goes to her (male) FBI friend, who advocates with his superiors for an investigation. They agree - and persuade a judge to issue a search warrant.
But on what grounds? I looked up the cyberstalking statute. It says that a crime has been committed when email "causes substantial emotion distress" or places the victim in "reasonable fear of death or serious bodily injury."
This strikes me as a pretty high standard. It is possible, I suppose, that the anonymous emails Kelley was getting from Paula Broadwell, Petraeus' former mistress, met that standard. And the FBI has worked hard to make Broadwell's emails sound as threatening as possible. But once they leak out, as they surely will, I strongly suspect that we'll see that the law was just a fig leaf.
So, too, with the "classified information" Broadwell is supposed to have. (And didn't you love the FBI's big show of carting away her computers?) Given the government's propensity, since 9/11, to stamp "classified" on every piece of paper short of the paper towels in the commissary, my guess is that this claim is also going to turn out to be less than earth-shattering. Once the FBI learned the truth - that it was just about sex - it needed a high-minded rationale to keep snooping. Broadwell did the FBI a huge favor by leaving "classified" information on her computer.
I understand why Petraeus felt he needed to resign; the affair had violated his own code of honor. I also understand that his propensity for publicity and control made him unpopular among the CIA rank-and-file. But I still wish President Barack Obama had refused his request to resign.
I wish the president had said that although Petraeus had made a mistake in his personal life - an all-too-human mistake, made by millions of people every day - the consequences of that mistake should be dealt with by him, his wife and his former lover. I wish he had said that the affair should not trump his decades of public service, or stop him from continuing to serve. I wish he had said that the Justice Department's inspector general was going to conduct an inquiry into whether the FBI had acted appropriately in handling Kelley's complaint.
On MSNBC on Friday afternoon, Andrea Mitchell spoke to Sen. Roy Blunt, R-Mo., who had just come from a closed-door Intelligence Committee meeting where Petraeus had testified.
"Do you think he had to resign?" she asked.
"Based on what I know, I wouldn't think so," Blunt replied. "Clearly," he added, "this is not someone who is going to be subject to blackmail." Thus did Blunt swat away the one legitimate rationale for forcing Petraeus from his job because of his affair.
In the weeks to come, a lot more people are going to come to the same conclusion - and are going to ask the same questions about the ease with which the government can look at our emails and peep into our bedrooms. Such a rethinking is long overdue.
© 2012, The New York Times News Service