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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

44 comments
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"!

AfGuy
AfGuy

There's no "neat" way to clean this up without leaving a bad taste in someone's mouth about how it was handled.

Enough cliches (and innuendos) in the above to keep everyone going for at least a week...

wprout31756
wprout31756

@Real-PA-Voter 

What, exactly, should we do to you if the shoe was on the other foot ?

Unless, I missed something by not reading correctly, NOTHING, about this said anything about a PHYSICAL TYPE OF RELATIONSHIP, it's nothing more then passing sweetheart notes in a classroom !

You don't get to become a GENERAL or the Director of the CIA by dipping your wick without knowing the consequences of one's actions !    

wprout31756
wprout31756

@ironyman2 

Sure wish there were more stupid people like you !

Tell me something, When did you actually become such an AUTHORITY on trust ? How about LOYALTY ?

I would think that if you pit Obama against Petraeus, based on what the other had contributed to the American People and this Nation....................................I bet PETRAEUS, would come out smelling like a ROSE then a dead Dandelion like Obama !  

Petraeus, didn't ABANDON his troops like Obama ! Until it's been proven in the coming investigation, Petraeus, didn't disclosed State secrets, like OBAMA ! 

jason024
jason024

Cantor also knew about it BEFORE the election and said nothing so complaining about the timing of making it public is useless. 

ironyman2
ironyman2

@Piacevole True. But I think his wife should get the best attorney in the country and negotiate her way out of his life ASAP, before anything else comes down about him. He apparently did lie to the Senate Intelligence Committee. This will make them look incompetent by letting him pass, but it's bound to come out that this is what happened.

chupkar
chupkar

Yeah, he is going to destroy an entire CAREER as the most distinguished general in 50 years for someone. Riiiiight.

ironyman2
ironyman2

@wprout31756  I have talked to people in the military and did not work with Petraeus. But rumors of this affair, and possibly others, are not new. WEe really do need a few heroes in this country, but I am afraid the self-serving David Petraeus is not one of them.

Piacevole
Piacevole

No "military coup" in the offing.   This doesn't have enough traction to even qualify as a "non-srarter."

Fla4Me
Fla4Me

@wprout31756 Yeah, I'll wager a case of whatever you  drink that even Fox News never even mentions a slight hint of a Military Coup.  Good?

Think_again
Think_again

@wprout31756 If we'll "never know the truth," then you can't claim that it's a "fact."

Glad to know the conspiracy theorists have moved on from Romney and the election, though.

formerlyjames
formerlyjames

@Kiwipolitico6 

America is obviously over it.  Were you asleep during the Democratic Convention?  Kenneth Starr is president of Baylor University now.   Try to meet him for coffee or cokes or water and cry on each other's shoulder and pray over it all.  It could be done, Waco is a small place, whose history includes the religious fanatic David Koresh.   Go pray.

wprout31756
wprout31756

@Kiwipolitico6 

And you think Obama is a SAINT ? I got a year's wages that might prove that their are at least 1 Secret Service agent on the POTUS security detail that might be convinced to sell his LOYALTY, for a price ?

ironyman2
ironyman2

@wprout31756 @ironyman2 

Hmmm ... I thought this conversation was about Petraeus. Obama won the election. He is still president. Petraeus, through his own stupidity, carelessness and a willing willy, just lost his big job. He has no job. No, I remember now. We were talking about Petareus. He is the loser.

wprout31756
wprout31756

@ironyman2 

That's right, You talked to people and now your an AUTHORITY on this subject, right ? You come here and post your comment and in the hopes that your voice is LOUDER then mine, your right huh ? Your only knowledge of the General is what you read about and now you can point the Blame Finger, right ? YOUR A MORON !

wprout31756
wprout31756

@Piacevole 

I sure wish I'd be around when you find out otherwise ! Have any proof that there isn't ? Didn't think so, MORON !

wprout31756
wprout31756

@Fla4Me @wprout31756 

Glad to hear that you believe everything the media shoves in your face, there moron !

Maybe, you should do some follow-up research beginning from the timeline where McCrystal got railroaded, maybe even a little earlier.

A Military coup that needs to be successful needs Long-Term planning and critical timing in it's implementation.

SORRY, YOU FAILED !

TyPollard
TyPollard

@wprout31756 @Kiwipolitico6 

Please give us a heads up on all the conspiracy theories we should know about so we won't be surprised in the future. 

What does your gut tell you about the Moon landing? 

Has your gut ever been wrong?

Does your gut become upset after spicy food?

Is your gut audible or do you just hear it in your head.

My gut is queasy right now, What doesTHAT mean?

Piacevole
Piacevole

Nobody thinks that President Obama is a "SAINT," any more than we have ever thought he was a "MESSIAH."

For myself, I think he's got the story about adultery, though.  If you want to try to bribe a Secret Service agent, have a go. 

wprout31756
wprout31756

@kathy @wprout31756 @Kiwipolitico6 

Show me proof that your VOTE was counted ! Did you actually follow your vote ?

Unless, you have INDISPUTABLE PROOF, that you know something as being true and correct, Your either making an assumption or a guess based upon what you feel as the truth, In other words, If you haven't seen it with your own eyes, YOU FAILED, your lying to yourself !

wprout31756
wprout31756

@TyPollard @wprout31756 @Kiwipolitico6 

CONSPIRACY theories are nothing more then "What If's !

They only come true when people such as yourself are too frigging IGNORANT and STUPID to believe that they can't happen !

SORRY, YOU FAILED !

wprout31756
wprout31756

@Piacevole 

Have you forgotten about the Prostitution scandal down south before the POTUS arrived ?

SORRY ! YOU FAILED !