In the still-evolving Greek-tragedy/soap opera of Petraeus-gate, Paula Broadwell and Jill Kelley's lawyers would be well-advised to look at the case of National Security Whistleblower (NSA) whistleblower Thomas Drake. Because, whether or not their clients possessed classified information won't stop the government from claiming that they did, or retroactively classifying information found in their homes or on their computers.
Media reports about what, if any, classified information turned up on Broadwell's computer are conflicting, but the latest is that the FBI searched Broadwell's North Carolina home yesterday. In a parallel weirditude, the FBI is said to have uncovered some 20,000 to 30,000 documents, many of them e-mails between Kelley and Gen. John R. Allen, the top American and NATO commander in Afghanistan. Both Broadwell and Kelley have lawyered-up. (Kelley's lawyer is Abbe Lowell, who is currently defending State Department arms expert Stephen Kim against Espionage Act charges for alleged mishandling of classified information.)
The Justice Department indicted Drake on Espionage Act charges based on allegedly-classified documents found in Drake's home. All of the information seized from Drake's home underwent a "forced classification review," after which NSA experts claimed information was classified. It turned out that none of it was leading to the Espionage Act case against Drake collapsing and the Justice Department dropping all felony charges. Subsequently, former Bush classification czar J. William Leonard filed a complaint against officials who misclassified the documents found in Drake's home, saying he had "never seen a more willful example" of deliberate over-classification. One document at the center of an Espionage Act charge (with up to ten years in prison) was publicly released after the Drake case concluded and was revealed to be completely innocuous, leading the Washington Post editorial board to question if the entire classification system was dysfunctional.
The attorneys for Kelley and Broadwell should learn the twisted lesson of the case against Drake: that the government can charge someone under the Espionage Act based on allegedly-classified documents that may be not only unclassified, but totally innocuous.
With all the attention Broadwell and Kelley are getting - much of it with sexist undertones, such as Broadwell's toned arms and Kelley's little black dresses - the real story should be the conduct of two of the country's top military leaders, Petraeus and Allen, and in particular, what risks to national security these two men decided to take in their contacts with Broadwell and Kelley.
For more on the over-sexualized persona of Broadwell, read Frank Bruni's excellent op-ed in the New York Times:
There are questions of real consequence, such as why the F.B.I. got so thoroughly involved in what has been vaguely described as a case of e-mail harassment, whether the bureau waited too long to tell lawmakers and White House officials about the investigation, and how much classified information Broadwell, by dint of her relationship with Petraeus, was privy to. The answers matter.A more pertinent question than the content of Broadwell's harassing e-mails to Kelley, is whether their respective relationships with Petraeus and Allen gave them inappropriate access to legitimately-kept national security secrets. That's a question that should start with Petraeus and Allen.
[Broadwell's] “expressive green eyes” (The Daily Beast) and “tight shirts” and “form-fitting clothes” (The Washington Post) don’t. And the anecdotes and chatter that implicitly or explicitly wonder at the spidery wiles she must have used to throw the mighty man off his path are laughably ignorant of history, which suggests that mighty men are all too ready to tumble, loins first. Wiles factor less into the equation than proximity.