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Since the beginning of the Petraeus-Broadwell scandal, all sides have been adamant about one thing: protecting Petraeus.

The latest effort at insulation is this: blaming Petraeus staff:

This is just the latest magical-thinking rationalization to preserve a powerful and much-beloved military icon.  All paths lead to Petraeus.

EXCUSE #1: During the FBI investigation that led to the discovery of the affair between Petraeus and Broadwell, both of them denied that Petraeus had supplied her with any classified information and the FBI accepted those explanations. The FBI usually does not accept the word of a subject or target of an investigation, especially when what ensnared them in the investigation was their deceit about the very issue that most logically would have laid (no pun intended) the groundwork for an exchange of high-level information.

ESCUSE #2:When the scandal was in its infancy, in his first press conference after being re-elected, Obama came out swinging in defense of Petraeus:

I have no evidence at this point from what I've seen that classified information was disclosed that in any way would have had a negative impact on our national security.
In one fell swoop (even though the FBI investigation is ongoing, and Broadwell's house had not yet been searched), the President of the United States conveniently knocked out three prongs of the Espionage Act, an admittedly bad law that has been used in a vicious campaign against whistleblowers who allegedly mishandled classified information: 1) no national defense information was involved, 2) nor was it disclosed, and 3) there's been no harm to the U.S. This may have been lost on most people, but my clients, including NSA whistleblower Tom Drake and CIA whistleblower John Kiriakou, both faced prosecution for violating this very law--one of the most serious charges that can be leveled against an American.

EXCUSE #3: Now that we are told Broadwell possessed numerous classified records, but that the FBI is focusing on whether Petraeus' staff is the culprit.

The FBI investigation (and MSM reports about it) have for weeks focused myopically on Broadwell's possible possession of classified information--without addressing the elephant in the room of how she would have obtained it, especially given her unprecedented and unilateral "access" to Petraeus. After all, Broadwell is not some crack investigative reporter. She was a grad student working on a dissertation-cum-book fawning over Petraeus.

What the media (and apparently the FBI) seems to miss is that if Petraeus tasked aides and other high-ranking military officials to provide military records and other documents to Broadwell, this does not absolve him of responsibility; actually, it makes it worse because he turned others into accessories who could also face criminal liability. (BTW, despite media obfuscation on this point, it is legally irrelevant whether such disclosure occurred when Petraeus was head of Centcom or when he was a commander in Afghanistan.) This is not just an "ethics scandal" (as the linked Washington Post article says). An unintended consequence of the Administration's heavy-handed war on whistleblowers is that (if laws are applied equally) it is now a "criminal scandal." Or should be.  

Do I think Petraeus and Broadwell should face Espionage Act charges? Actually, no, because, like my clients, they are not spies. But I do think they should be held to account under other laws meant to go after the unauthorized disclosure of classified information. And, as with my own clients, I think, given the government's propensity for over-classification and deliberate retroactive classification (see Tom Drake) that they should challenge whether the information at issue should have been classified in the first place.

But none of this will happen.  Just as it's magical thinking on the government's part to think that Petraeus is not involved in trafficking in high-level secret documents with his girlfriend, it is magical thinking on my part of believe that the government would actually apply law equally. The government only goes after people whose revelations it does not like--Drake for exposing NSA secret domestic surveillance and Kiriakou for exposing and condemning torture--not after a beloved general and his mistress.

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