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Could Petraeus Face a Court-Martial?

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BRENDAN SMIALOWSKI / AFP/ Getty Images

Petraeus, shown here testifying before a Senate panel as the top commander in Afghanistan in March 2011, is unlikely to face a court-martial in connection with his acknowledged affair.

U.S. military officers – even retired ones like former CIA director David Petraeus – can be brought up on charges of adultery under the Uniformed Code of Military Justice.

“It’s not going to happen, but that’s what the Manual for Courts-Martial provides,” says Yale Law professor Eugene Fidell, a military-law scholar and former president of the National Institute of Military Justice.

Maximum punishment of someone found guilty of adultery is a dismissal from the service, forfeiture of all benefits, including pensions, and imprisonment for up to a year, Fidell says. Petraeus is entitled to a pension of about $200,000 annually.

Petraeus stepped down from his CIA post Friday, following a storied 37-year career that had him running the U.S.-initiated wars in Iraq and Afghanistan in their bleakest hours.

He bowed out after acknowledging an affair, which people close to the retired four-star officer was with his biographer, fellow West Point graduate (he, Class of ’74; she, Class of ’95) Paula Broadwell. She visited him in Afghanistan when he was running the war there in 2010 and 2011, before retiring from the service on Aug. 31, 2011.

(MORE: Petraeus Scandal: Are We Guilty of a Double Standard?)

Friends who have spoken with Petraeus, who acknowledged the affair in a public statement Friday – without naming Broadwell – say he has told them that the affair began after Petraeus left the Army.

Said one fellow retired general who says he spoke to him:

There may have been some interest going on in Afghanistan but I don’t think anything took place until he left the Army. I believe him. It would have been pretty damn impossible [to have an affair in secret] given that setup he had there.

But that doesn’t make any difference.

“Retired regulars who draw pay are subject to the UCMJ, for life,” Fidell says, referring to regularly-comissioned officers (i.e., not reservists) and the Uniformed Code of Military Justice.

The UCMJ defines adultery as a service member who:

wrongfully had sexual intercourse with a certain person…That, at the time, the accused or the other person was married to someone else; and…That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

The UCMJ elaborates:

Adultery is clearly unacceptable conduct, and it reflects adversely on the service record of the military member…To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting…Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem. While adulterous conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances, it may be determined to be conduct prejudicial to good order and discipline.

It continues, with the following particulars being relevant to the Petraeus case:

Commanders should consider all relevant circumstances, including but not limited to the following factors, when determining whether adulterous acts are prejudicial to good order and discipline or are of a nature to bring discredit upon the armed forces:
(a) The accused’s marital status, military rank, grade, or position;
(b) The co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces…
(e) The misuse, if any, of government time and resources to facilitate the commission of the conduct…
(i) Whether the adulterous misconduct involves an ongoing or recent relationship or is remote in time.

More important than all this legal mumbo-jumbo, Fidell says, is the cues the Army – with whom the decision on whether or not to prosecute Petraeus rests – takes from the White House.

“If it’s true that the President tried to persuade him not to quit [as some news reports have said], that suggests to me that the Pentagon or the Army – which has the decision on this – will not exert itself” and bring Petraeus to a court-martial,” Fidell says.

But there are other cases that could complicate the Army’s decision, Fidell suggested.

Former four-star Army General William “Kip” Ward has been cooling his heels for more than 18 months as a two-star major general awaiting a decision by the Pentagon on possible punishment for “multiple forms of misconduct” he allegedly committed while serving as the first head of U.S. Africa Command. Because three and four-star billets require congressional approval, Ward has been demoted to two-star rank while awaiting adjudication and retirement.

In 1999, retired two-star Army major general David Hale was recalled and admitted during his court-martial that he had committed adultery with the wives of four subordinates while on active duty. He was reprimanded and fined but not jailed.

“When you retire, are you really walking through the looking glass, or does it continue to be an issue of concern that like cases be treated in like fashion?” Fidell asks. “Are you going to hammer Ward, but not Petraeus?”

MORE: Resignation at the CIA: Why Petraeus Had to Go

48 comments
jwellman
jwellman

I'm writing to you about the mis-handling of Retired General Petraeus actions while on active duty and as the Director of the CIA.The five year probation and $40,000 fine is a slap in the face to all of our military members who have and are protecting our Nation's Secrets.

I'm a retired an Army Senior Non-Commissioned Officer and I protected our Nation's secrets for the 22 years I served and still do.I took my oath seriously to protect our Nation from our Enemies Foreign and Domestic:The same oath Retired General Petraeus took when he was commissioned as a Second Lieutenant.

Senior Leaders in the Military are held to the highest standards as they are the example for all junior officers and enlisted to follow.During my 22 years I have seen many Officers and NCOs face courts martial for various offenses from Conduct Unbecoming, Abuse of Rank and Authority, adultery, and failure to properly protect and safeguard classified documents.

I feel it is absolutely necessary to recall General Petraeus back to active duty and face charges of adultery, willful disclosure of classified information to his mistress, and conduct unbecoming an officer as a minimum of charges.Failure to hold him responsible and accountable for his actions is not acceptable and cannot be tolerated.The same standards need to be applied to all ranks otherwise it will cause tremendous moral problems.

This cannot be ignored and "swept under the rug" just because he is a retired four star General:On the contrary it needs to be properly investigated and if he is found guilty the proper punishment for the crime(s) he committed.Otherwise, the Congress is condoning his actions, doing a total disservice to all of the military members who protect our Nation's secrets and telling all of the military it is okay to commit these crimes as the Congress and Military will not prosecute.

I formally request a UCMJ Article 31 be conducted on Retired General Petreaus

Respectfully Submitted:
Sergeant First Class (Ret, USA)
William J. Wellman

A_COL
A_COL

He could be recalled to active duty and subjected to Court Martial although that would be highly unlikely but if it were proven that he committed adultery while on active duty, there is recent precedent for how to dispose of the case. Congress should immediately act to re-confirm Petraeus on the Retired List in the reduced rank of three-star Lieutenant General for any UCMJ Adultery Violation that occurred while he was still on active duty. This was the precedent set the last time a decorated 4-Star General had an “inappropriate relationship” although that time that general had been separated from his wife for over a year at the time, was finalizing a divorce, she was an unmarried civilian and no attempt was made to hid it. He was fired, demoted to 3-Star General and unceremoniously retired. He was GEN Kevin Byrnes, his divorce finalized the day he was fired – 8 Aug 2005.

The first thing every young officer learns is he or she is “always on parade.” That is their conduct is always being watched and the higher one rises, the more this is true. By the time an officer reaches field grade (major), they are constantly under scrutiny and everytransgression sets a new standard of conduct, higher or lower, for their subordinates. Petraeus’ conduct was disgraceful and besmirch the honor of every Military officer. While we’re at it, don't forget Broadwell. Not only did she commit adultery but this “nut case” had a Top-Secret-Clearance that was just suspended - it should be immediately revoked! also, we don't need an "unstable" reserve lieutenant colonel; Broadwell should be immediately cashiered out of the Army.

For a full treatment of this disgraceful episode check out my Blog: http://old-soldier-colonel.blogspot.com/ 

JasonWilliams
JasonWilliams

How, exactly, do we try a person who is now a civilian in a military court, for a UCMJ violation?  Seems like this one is a moot point, since he's retired.The real question should be, will Broadwell be charged, since she is still a LTC in the reserves?

AfGuy
AfGuy

If he is, it will be for PUBLICLY "screwing the pooch" (so to speak).

Too many have been allowed to retire (quietly) as long at their "indiscressions" were kept out of the news.

Too late for him...

formerlyjames
formerlyjames

Forget it.  President Obama won't allow it, unless it gets much worse than what we know now. 

Real-PA-Voter
Real-PA-Voter

throw the book at him and take away all his misbegotten medals and pension. A year in the brig should do him very well.

Real-PA-Voter
Real-PA-Voter

Don't do the crime...if you can't do the time!!!!!!!!!!!!!!

Marky_D_Sodd
Marky_D_Sodd

And the surprise is...????  Both Petraeus and Allen are Red Americans.  If its Secret Service men can be fired for playing with prostitutes, why shouldn't Petraeus and Allen be held to the same standard.

Oh, yeah I already answered that:  they are both Red Americans.

forgottenlord
forgottenlord

“Are you going to hammer Ward, but not Petraeus?”

Petraeus didn't sleep with the wives of active members of the armed forces.  Any possible dereliction of duty happened while in his duty to the CIA and not the Army.  Charging Hale is a method of defending their own.  Charging Ward is about possible dereliction of duty.  Charging Petraeus... seems rather ridiculous.

phillipanderer
phillipanderer

One would have thought that a top ranking military man would have been better at hiding his extra-marital manoeuvres. He made the cardinal error of conducting his affair too close to home. It is so easy to meet a stranger to have an affair with nowadays what with dating sites like Undercover Lovers and Gleeden expressly for the purpose.

ironyman2
ironyman2

CBS News is showing a photo of  Petraeus, his wife and Mrs. Broadwell at his confirmation hearing to command the Afghan War in July 2010. Proof that his affair dates back many months, prior to his becoming CIA Director? No. It does show that Ms. Broadwell was in his close circle, sitting there on the front row, behind the general, with his wife. The Senate Intelligence Committee was off its game when it vetted the general.

There have also been persistent runors about his affair with Braodwell - and possibly one or two before her. This is a man so drunk with power and self-importance, he thought he could get away with anything. He has totally lost the trust of many Americans, people like me who paid his salary.

jason024
jason024

The GOP conspiracy theorists are ridiculous. He resigned out of embarrassment and that is it. He IS going to be called to testify about Benghazi no matter what. What would have been worrying if someone tried to cover up the affair for him. But that is NOT the case. 

Do you guys live in reality or have you joined the 9/11 conspiracy crowd?

Piacevole
Piacevole

If General Petraeus were stripped of his military benefits, it would adversely affect his wife, who has had enough grief from this situation.  That would merely compound the injustice.  If there is anyone looking this situation who fails to ge tthe message, any further punishment of Petraeus probably wouldn't get it across, either.

ZipReeper
ZipReeper

he should be made an example of, being a general.

wprout31756
wprout31756

IMHO, I find it really hard to believe that the General made such a stupid mistake, am willing to bet that he decided to go this route because he's protecting someone or something far greater then his status !

And I bet that we'll never know the truth because he'll take it with him to his grave, now that's a fact !

Anyone care to wager any money that their might be a hint (even a slight hint ) of a Military Coup ?

Kiwipolitico6
Kiwipolitico6

Well well...given the 'letter of the law' required for the actual offence relating to sexual misconduct under the UMCJ, maybe we'll see Patraeus use the same ex post facto justification used by the venerable Bill Clinton after being caught with his pants down with a congressional intern:  "I did not have SEXUAL RELATIONS with that woman"!

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