an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Petraeus Case: Legal Exposure of Military Retirees
Eugene R. Fidell
Retired Army General David H. Petraeus's precipitous fall from grace has become an immediate cause celebre, with questions swirling around the timing of the disclosure of his affair with Paula Broadwell, how the FBI became involved, the timeline of decision making and information flow, and the impact of his departure on congressional inquiries into the Benghazi attack. Important facts remain unknown, such as whether the affair was an isolated event and whether it was entwined with the performance of official duties. In a remarkable coincidence, the case comes just as the Defense Department is weighing recommendations from the RAND Corporation in a report titled "Managing Adverse and Reportable Information Regarding General and Flag Officers."
As a retired member of the Regular Army, Gen. Petraeus remains subject to the Uniform Code of Military Justice. Army regulations provide that retirees "may be tried by court-martial for violations of the UCMJ that occurred while they were on active duty or, while in a retired status. Department of the Army policy provides that retired Soldiers subject to the UCMJ will not be tried for any offense by any courts-martial unless extraordinary circumstances are present." The exercise of court-martial jurisdiction over retirees violates contemporary international human rights standards, even though it is a tolerated (if infrequently used) feature of American military justice.
Adultery is no longer a crime in many states but remains one under the UCMJ. Article 134 criminalizes conduct that is, among other things, prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. Adultery is occasionally prosecuted within the armed forces, typically after the servicemember disregards advice to terminate an affair or if there are other aggravating factors. The Manual for Courts-Martial provides that "[w]hile adulterous conduct that is private and discreet in nature may not be service discrediting," it may still be found to be prejudicial to good order and discipline. In 2002, President George W. Bush issued guidelines for the exercise of discretion as to when adultery should be prosecuted by court-martial. These are still in force and include the accused's marital status, rank, and position and that of the other party and the spouses of each; the impact of the relationship on the accused's performance of duty, as well as that of the other party and their spouses; whether any notoriety ensued; and detrimental effects on unit or organizational morale, teamwork, and efficiency.
Barring dramatic new evidence, it seems highly unlikely that Gen. Petraeus's case rises to the level of "extraordinary circumstances" contemplated for trial of an Army retiree. That does not mean he is out of the woods.
Military officers retire in the highest grade they have satisfactorily held. Gen. Petraeus retired on August 31, 2011 as a four-star officer, the highest rank currently available to members of the U.S. armed forces. One would think that was the end of the matter, but the Army disagrees. A 2002 regulation provides, "Officer grade determinations are normally accomplished at time of retirement or disability separation, and the officer's grade is fixed at that time." Grade determinations can be "reopened," however, if "substantial new evidence" is discovered "within a short time following separation." It is unclear whether Gen. Petraeus's case meets the "short time" test. Given his life expectancy, a reduction in his retired grade would inflict a whopping financial penalty.
The other party to Gen. Petraeus's affair is a reserve officer. Military jurisdiction could reach her if she engaged in adultery while in a drilling status or, viewing her as a civilian, if she were deemed to have been "accompanying" an armed force in the field in time of a "contingency operation" such as Afghanistan. It would certainly raise hackles if (notwithstanding his public disgrace) Gen. Petraeus were to escape punishment and she did not. Disparate outcomes would erode public confidence in the administration of military justice.
Gen. Petraeus's security clearance presents other issues. The Executive Branch--and definitely not just the present administration--is humorless when it comes to access to classified information. Misconduct such as adultery could form the basis for revoking his clearance, although the "whole person" concept would work in his favor. Once an affair becomes public, the danger of blackmail vanishes--although the error in judgment does not. Ms. Broadwell may also have to fight to keep her own clearance.
Finally, considering Gen. Petraeus not as a retired military officer but as a civilian official, federal law permits adverse personnel action for off-duty conduct that does not promote "the efficiency of the service." An egregious case decided in 2000 upheld the removal of a civilian employee of the Marine Corps because he had had an adulterous affair with the wife of an officer who was deployed overseas. One would have to know more before deciding whether there was a nexus between Gen. Petraeus's affair with Ms. Broadwell and his duties as Director of Central Intelligence. As a political appointee, the fine points of federal personnel law do not play much of a role, but had there been a nexus, adultery would certainly have been a severe blow to his viability as a civilian public official.
Gen. Petraeus's case will in time sort itself out. In the process, the country should consider whether on balance it is well served by his departure, whether adultery ought to be so big a deal, whether it should remain criminalized, and whether it's time for military justice to let go of retirees.