Written by Julian Sanchez, a research fellow at the Cato Institute. Posted with permission from Cato @ Liberty.
As more details emerge about the FBI’s role in exposing the sex scandal that led to the resignation of CIA director David Petraeus, more than a few observers are finding the FBI’s broad power to snoop through private and highly intimate e-mails more disturbing than any of the sexual misconduct those e-mails revealed. Yet despite a seemingly endless stream of FBI leaks about the investigation, a surprising number of crucial questions about this stunningly broad and intrusive inquiry remain unanswered.
For those who’ve managed to avoid the media feeding frenzy, The Atlantic has a handy timeline of what we know about the investigation so far. It appears to have begun with a complaint by Florida socialite Jill Kelley about some “harassing” e-mails she received from an anonymous source criticizing what the sender perceived as an inappropriate relationship between Kelley and some of the generals she’d befriended at a local military base. Though the e-mails contained no specific threats, and have been characterized by at least one source as more catty than menacing, Kelley reported them to a friend in the FBI. According to FBI sources, superiors became worried that the agent was “obsessed” with the case, ultimately barring him from the investigation.
Despite the relative thinness of the case—the FBI as a rule does not devote serious resources to tracking down senders of nonthreatening, catty e-mails, and only 10 cases have been prosecuted under federal cyberharassment law over the past two years—the Bureau opened a cyberstalking investigation, supposedly at least in part because they were concerned by references to the “comings and goings” of generals, and to events not on published schedules. Using subpoenas for the access logs of the anonymous e-mailer’s account, they linked it to activity on other accounts, as well as the hotels from which they had been accessed, ultimately exposing the author as Petraeus biographer Paula Broadwell. Armed with this information, the FBI obtained legal process to compel the disclosure of the contents of her accounts, uncovering an illicit affair between Broadwell and Petraeus.
That’s what we know. But there’s a lot that we don’t—a lot of pieces that just don’t fit. Here are some of the bigger unanswered questions:
- Was this strictly a cyberstalking investigation, or did it become a national security or counterintelligence investigation at some point? If so, when, and with what predication?
- Kelley, a “volunteer social planner” with no apparent security clearance, was attending many of the same events referenced in these e-mails, which suggests that they were not exactly top secret, and must have been known to many people in Kelley’s social circles. Why would anyone make the leap from knowledge of events shared by the Real Housewives of Tampa Bay to a potential leak of actual classified information? Wouldn’t any mystery surrounding this be resolved once the e-mailer was revealed as Petraeus’ biographer?
- Reuters reports that investigators used “administrative subpoenas” to obtain Broadwell’s e-mail access logs. But the FBI has statutory subpoena authority only in a fairly limited class of criminal investigations: narcotics, child abuse, health fraud, telemarketing fraud. Under what authority did they issue such subpoenas in a cyberstalking investigation?
- Alternatively, were National Security Letters used on the theory that there was enough evidence to justify pursuing the case as a counterintelligence investigation (despite multiple reports that it was a harassment case)? The NSL statute permits them to be used for”counterintelligence activities,” but “intelligence activities” are defined as being conducted on behalf of a foreign power. Was there any evidence whatsoever of such a foreign link?
- Having identified Broadwell as the author of the e-mails, why was access to her accounts sought? If it was only to confirm that the e-mails shown to the FBI by Kelley had truly originated there, why wasn’t the request limited to those e-mails? Why not issue a preservation order to the e-mail provider, to prevent deletion of evidence, and confront Broadwell before resorting to such an intrusive measure?
- Most reports indicate that the legal process used to obtain access to those accounts was a search warrant based on “probable cause.” Who issued it, and on what basis? “Probable cause” means “probable cause to believe evidence of a crime will be discovered.” What was the crime? What evidence was sought? Justice Department attorneys now appear to have concluded that Broadwell’s e-mails were not criminal after all. Was a different determination made at this stage of the investigation? By whom? What changed?
- Broadwell is arguably a journalist—or at any rate, has been described as such by members of Congress. Investigations touching on such “sensitive” subjects are supposed to be personally approved by the attorney general because of potential First Amendment implications. Was Eric Holder informed of the FBI’s investigation of Broadwell before her e-mail accounts were accessed? Did he authorize the search personally?
- Search warrants are supposed to “particularly describe” the evidence to be “seized.” Police searching for a stolen car are not supposed to rifle a suspect’s underwear drawer. Agents wiretapping a mob boss are not supposed to keep listening when the target’s wife calls her doctor on the same line. In cases involving digital evidence, this often means a two-step process where a cursory review of the account contents is conducted to determine which particular messages are within the scope of the warrant. Alternatively, providers may be given a time window or list of correspondents relevant to the investigation. What was the scope of the warrant issued here? How did investigators end up reading “thousands” of e-mails between Broadwell and Petraeus in the course of a search for evidence in a stalking investigation?
- Some reports suggest that investigators became concerned the CIA director’s personal e-mail might have been hacked. Why would the CIA not be informed of such a serious potential breach immediately?
- How did thousands of pages of e-mails between Kelley and Gen. John Allen come to be exposed in an investigation where Kelley was the putative victim? If they were not evidence of any crime, why were they shared, leading to their existence eventually becoming public knowledge?
There are, incredibly, quite a few more unanswered questions, but these seem like a good start. At every stage of this investigation—including the very fact of its existence—there are things that just don’t make much sense. If Justice Department officials don’t start answering them for reporters soon, they should be made to provide those answers to Congress—under oath.