Could Petraeus Face a Court-Martial?

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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