Journalism in the Public Interest

Was Petraeus Borked?

When a D.C. video store revealed the Supreme Court nominee’s list of video rentals, it sparked a privacy backlash and a new law. Similarly, the Petraeus affair has put the government’s vast surveillance powers – even of elites – in a critical context.


CIA Director David Petraeus, testifies before the US Senate Intelligence Committee during a full committee hearing on 'World Wide Threats.' on January 31, 2012 on Capitol Hill in Washington, DC. (Karen Bleier/Getty Images)

This story was co-published with The New Yorker and is not subject to our Creative Commons license.

In 1987, when Judge Robert Bork was enmeshed in a partisan struggle over his Supreme Court nomination, a reporter for an alternative weekly in Washington, D.C., got a tip that the judge was a patron of a local video store. Michael Dolan went to Potomac Video, in the western corner of the capital, and asked the assistant manager for a list of videos the judge had checked out. "Cool," the assistant manager said. "I'll look."

Dolan's subsequent story, published in the Washington City Paper, caused a sensation, though not because of the judge's taste in videos, which, it turned out, was unremarkable. There were 146 rentals in less than two years, including lots of Hitchcock and Bond, as well as movies featuring Meryl Streep and Bette Midler. As Dolan wrote, "Despite what all you pervs were hoping, there's not an X in the bunch, and hardly an R."

After a bitter fight, the Senate rejected Bork's nomination. One thing everyone agreed on, however, was that Bork's privacy had been invaded. In 1988, Congress passed the Video Privacy Protection Act, making it illegal to release video lists without a customer's consent to anyone but law enforcement, and then only with an appropriate warrant. It is reasonable to note that the unusually rapid congressional action was perhaps aimed at protecting the privacy of Legislator X as much as Citizen Y. If a reporter could easily get the judge's video list, a senator's list would not be much harder to get, and would probably be a lot more lively.

Will the scandal surrounding David Petraeus, General John Allen, Paula Broadwell, Jill Kelley, and a shirtless F.B.I. agent turn into the same sort of eureka moment that Congress experienced when Bork was, as the saying now goes, "borked"? Although the lustful portion of the Petraeus scandal is hardly disappearing — who else will be drawn into it, and when will we read the emails? — attention is turning toward the apparent ease with which the F.B.I. accessed the electronic communication of Petraeus, Broadwell, Kelley, and Allen. The exact circumstances of how the F.B.I. got its hands on all this material remains to be revealed — for instance, whether search warrants were obtained for everything — but the bottom line appears to be that the F.B.I. accessed a vast array of private information and seriously harmed the careers of at least Petraeus and Broadwell without, as of yet, filing a criminal complaint against anybody. As the law professor and privacy expert James Grimmelmann tweeted the other day, "The scandal isn't what's illegal; the scandal is what's legal (or what the FBI thinks is legal)."

In recent years, a handful of privacy activists — led by the A.C.L.U., the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the Center for Democracy & Technology — have filed lawsuits and requested official documents in an effort to reveal and challenge the government's vast surveillance powers. For the most part, they have not succeeded in changing things; the Petraeus scandal appears to show just how much surveillance the F.B.I. and other law enforcement agencies can conduct without a judge or a company telling them "no, you can't have that."

For instance, in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose 26 percent in the latest six-month reporting period, to nearly 8,000; the company said that it complied with 90 percent of the requests, either fully or partially. As Chris Soghoian, the A.C.L.U.'s principal technologist and senior policy analyst, wrote this week:

"The guest lists from hotels, IP [computer] login records, as well as the creative request to email providers for 'information about other accounts that have logged in from this IP address' are all forms of data that the government can obtain with a subpoena. There is no independent review, no check against abuse, and further, the target of the subpoena will often never learn that the government obtained data."

It's not just email. In July, Rep. Edward Markey, a Democrat from Massachusetts, cajoled major cellphone carriers into disclosing the number of requests for data that they receive from federal, state, and local law enforcement agencies: In 2011, there were more than 1.3 million requests. As ProPublica reported at the time, "Police obtain court orders for basic subscriber information so frequently that some mobile phone companies have established websites — here's one — with forms that police can fill out in minutes. The Obama Administration's Department of Justice has said mobile phone users have 'no reasonable expectation of privacy.'"

There's a particularly cruel irony in all of this: If you contact your cell-phone carrier or Internet service provider or a data broker and ask to be provided with the information on you that they provide to the government and other companies, most of them will refuse or make you jump through Defcon levels of hops, skips, and clicks. Uncle Sam or Experian can easily access data that shows where you have been, whom you have called, what you have written, and what you have bought — but you do not have the same privileges.

The surveillance, which is being challenged in a number of suits, is conducted through an alphabet soup of laws, regulations, and loopholes, including the Wiretap Act, the Electronic Communications Privacy Act (which extended the Wiretap Act to email, and added the Stored Communications Act for stored email), the Foreign Intelligence Surveillance Act and the Patriot Act (which amended all the others). One of the remedies that's before Congress is a bill introduced by Senator Patrick Leahy, a Democrat from Vermont, to require that in most cases law-enforcement agents must obtain a search warrant from a judge before getting customer emails from an Internet company. It would also provide more guarantees that citizens be notified that their email is being surveilled. It's only a partial fix, of course; for instance, it does nothing about cell-phone surveillance.

Everyone has an opinion on what should be done, and one of the country's most famous judges is of two minds on the subject. "It seems to me we often hamper enforcement agencies so that they can't do their job, and when we aren't doing that we are cutting them loose so they can abuse their power," said Judge Bork, reached by phone at his home in northern Virginia. "Is there too much intrusion into private lives? I can't answer that very well, because sometimes there is, sometimes there isn't."

Until now, Congress has not stood in the way of the expanding surveillance, mainly because it was justified as part of the effort to prevent another 9/11. But the Petraeus case shows that among the people who have the most to lose from unchecked surveillance are the people who thought they would benefit from it—government elites who allocate the funding and make the laws and operate the bureaucracy of surveillance. Perhaps they will start worrying a bit more about becoming the next Petraeus or Bork. Our legislators, who are not all angels, now have real skin in the game, so to speak.

We’re all Borked - CIA, NSA, FBI, and Homeland Security have Total Information Awareness deployed (under a different name with more expansive capabilities).

Betrayus was a warmonger. He led two surges in two illegal wars that got our troops killed and committed numerous warcrimes. He has shown such bad personal behavior he can never be trusted with anything in this government again.

Stephanie Palmer

Nov. 14, 2012, 6:44 p.m.

I think this invasion of privacy has been too easily given up with the laws that have been passed by our Congress.  The worst as far as I’m concerned is the so-called “Patriot Act.” We would have to have a totalitarian government for it to be patriotic.  People are much too blase about these laws.

Jeffrey g. myles

Nov. 14, 2012, 6:58 p.m.

Note that police officers have gained access with a court-issued subpoena, according to your report.
How is that to be stopped since they are acting with legal authority.
You have provided no evidence to show the FBI failed to gain required authority to conduct its search of email records.
What is of concern is the FBI disclosure of the information either through agents or others in an effort to politicize its investigation. That’s the Hoover method that makes the FBI so suspect.
The FBI might have had a legitimate reason to determine if there were some criminal activity that could be detrimental to the CIA’s head. If none were found that Petraeus should have been the only one entitled to let the world know he was resigning. If the FBI released the product of its investigation or improperly disclosed it to Eric Cantor or anyone else, then there should be punishment.

Jay Rittenhouse

Nov. 14, 2012, 7:05 p.m.

“Borked”?? Not sure about that, but I wonders, yes I wonders about the timing. Supposedly the FBI, POTUS, etc all knew about this before the election and some suppose that was a reason for ‘sitting on it”. What interests me is that just after the general had a statement issued that C.I.A. issued no Stand Down instructions in the night of 9/11 in Lybia (appears to point the finger at where the instructions had to come from), bang this hits the streets and David Petraeus is no more.
Now he’s in Limbo. The POTUS has said that as of yet he knows of no classified info that was leaked by the general. I wonder if amazing new evidence will be found if he says the wrong thing during the congressional hearings.
I’m still amazed at what they did to the general over seeing a lady. In his secrecy oath, did he take a vow of celibacy?

Hah!  Patrick Leahy has introduced a bill that would “require that in most cases law-enforcement agents must obtain a search warrant from a judge before getting customer emails from an Internet company.”

Good luck, Senator!  Obtaining a search warrant is a no-brainer.  Worked great with FISA, didn’t it?  How many warrants did judges approve on THAT one!
Better question:  How many did they turn down!  Not effing many!  It became an automatic operation.

Stand off and really LOOK at this!  How does it differ from Big Brother’s access in 1984?  Again, not effing much. 

We’re on the slippery slope.  Wonder if Obama will grow a pair and at least TRY to rein in Big Brother…

Violet Pucsek

Nov. 14, 2012, 7:44 p.m.

It seems more like a be-careful-what-you-wish-for instance.  Security agencies insisted that they needed the widest possible electronic access to catch terrorists.  That’s what they got and now they themselves are caught in that net. Nevertheless, how one request to an FBI agent could turn the life of a top government official upside down is flabbergasting!

John Henry Bicycle Lucas

Nov. 14, 2012, 9:22 p.m.

Well, well, well rattlesnakes do bite each other from time to time. Our govenment has gone so far off the rails, I doubt we will ever gain back the freedoms we have lost within the last few years in the intrest of “protecting us from terrorism”. These are freedoms we are loosing at an alarming rate that are granted to us by God and guaranteed by our Bill of Rights, intended to PROTECT us FROM our government.

Just how safe from terrorism does the government intend to keep us?
Not much more, I hope.

We can all be installed in cages somewhere and watched thoughly, yeah, that should keep us safe.

Interesting how our officals in our govenment can do whatever they want or are ordered to while in office, all they have to do is resign from the post(s) and then are exempt from any other personal responsibilty for the actions or inactions taken while at the post(s). I’m sorry, but to me this is totally intolerable, and seemingly unlawful. Until these appointed or elected officals are held criminally liable for the unlawful actions they took in office, I don’t see any great changes happening. If we steal, or misappropriate funds on a job, even if we resign our job, we can still be prosecuted. Why should our leadership positions be any different?

Personally, I do not care at all who these people go to bed with, nor under what circumstances. It seems like all a smokescreen to hide something much larger in this instance. The news media eats it up and it sells. What I do care about is the running ripshod over our rights in the process.

I feel as if the evidence that has so far been brought out concerning our recent attack in Benghazi and the sacrificing of four US citizens lives that they were just that, sacrificed. Especially our ambassador, because he knew, or had done to much and was a danger or threat to our current administration.

So Petraeus was surveiled without a warrant. So what, the government is doing it to all of us, why should any of our leadership positions be any different? It is beginning to seem as if some of our government agencies are beginning to turn on each other, which I find amusing, to say the least.

From a fed up citizen, fed up in the interest of our national security!

Why should this be a surprise to anyone who has taken the time to read the agreement required to use any service on the Internet?

You agree that official sources can access your activity here as they wish.

If you don’t underestand this READ The DAMED Instructions. before you complain.

John Henry Bicycle Lucas

Nov. 14, 2012, 10:08 p.m.

Jerry, no it doesn’t work that way. You don’t suspend your constitutional rights just beacuse you sign an agreement with a third party.

Ever ask yourself why the government would “wish” to invade your rights to begin with?

Glenn Greenwald’s column on this is the most thoughtful you will probably see anywhere. Rather than repeating his points, I refer you to:

America:  Ask yourself: is having an FBI agent investigate a few harassing emails… like calling out the National Guard to help an elderly lady across the street?  This whole thing is totally nuts!  Step number one, block the emails, step number two, call your internet provider to block the emails, step number three, call your LOCAL police force. There is something WRONG with the whole situation!

They’re reading your comments.

Anthony McCarthy

Nov. 15, 2012, 10:35 a.m.

It’s dangerous to invite the kind of pun that immediately went through my head when I read that title.

Yesterday I wrote a comment—not published—about Petreus’ support for influence of the radical Christian Right (not to be confused with mainstream Christianity) on soldiers who are helpless to resist the machinations of their superior officers and NCOs.  These Fundamentalist “Christians” demand that those under their command participate in their kind of “services or risk punishment and/or demotion.

This is illegal under the U.S. Constitution.  But it is deeply embedded in the Christian Right, which has a horrifying influence on the U.S. military.  Groups such as Military Religious Freedom Foundation has hundreds, if not thousands, of complaint letters from soldiers who have nowhere else to go to get help—and grateful letters that someone at last is standing up for them,.

Petreus is a far-right conservative, which is his privilege.  But he ha s no right to inflict his beliefs on our serving soldiers

Be Interesting to see if this comment, too, is suppressed..

protecting the privacy of Legislator X as much as Citizen Y.

“As much as”?  No, I don’t think so.  The fact that We the People got any benefit from the Bork affair is merely a coincidence, a side-effect of not being able to write a law in the then-current political climate that gave explicit preferential treatment to government officials.

Since then, though, we have bills like the Federal Restricted Buildings
and Grounds Improvement Act of 2011, which says (in two magical pages) that the Secret Service can arrest anyone “disrupting” (say, petitioning) an “event of national significance,” including anywhere someone protected by the Secret Service is visiting.  They needed to fight to pass a law preventing insider trading, implying that it has been legal until now.

So who knows?  The Petraeus scandal might be the best thing that has happened to the American people in a very long time, or it might just be yet another step in the campaign to give government officials immunity from the law while continuing to pre-criminalize the rest of us.

Kallol Bhattacherjee

Nov. 15, 2012, 3:39 p.m.

I just returned after writing about the presidential election in the United States. Have often consulted Pro Publica for its objective coverage of the “real” issues in the United States. Anyone willing to suggest issues related to violation of fundamental rights or individual liberties in the United States can write to me at .(JavaScript must be enabled to view this email address)

This is in relation to an essay I am writing on the state of freedom in the United States

Kallol Bhattacherjee
New Delhi

So you can contact your local FBI friend and start an investigation of someone? This agent needs to be fired and sued. And these women who started it all..should be sued too.

David, the half-assed scandal of some guy’s postponed mid-life crisis isn’t the issue, here, nor is the shirtless FBI man relevant at all.  It’s just what the profit-oriented media is latching onto to get advertising numbers.

The real issue (as the article explains well, and everybody else is ignoring) is that the FBI believes it’s allowed access to all this private information on its say-so (issuing a subpoena, rather than getting a warrant), and the “cloud” companies just roll over on request.

They don’t see it as your data, since it’s in someone else’s possession.  They don’t see it as private, because it has been sent over the Internet.  They don’t see it as wiretapping, because they’re not actually tapping anything.  They also don’t care about collateral damage—if they delete someone else’s e-mail or seize an entire server full of content, that’s not their problem.

The hope is that, now that this has happened to someone they consider “important” and can identify with in their own self-important lives, Congress might try to fix this to save their own rear ends from investigation.

James M. Fitzsimmons

Nov. 16, 2012, 1:14 p.m.

Interesting how our “watchdog” press has seized upon the Petraeus sex scandal and related privacy issues while ignoring the substantive aspects of Benghazi. Pre-incident decisions to reduce our security teams at Benghazi were ordered by whom, and why, given evidence of terrorist activities and requests by our own officers not to reduce security? Post-incident, the FBI was unable to do a crime scene investigation at the Benghazi scene/s due to lack of security support. (We couldn’t deploy within hours a rifle company with air support from a nearby Marine Expeditionary Force within hours to provide security for the Evidence Recovery Team?). The FBI team was delayed for 24 DAYS and the crime scene that could have been exploited for actual physical evidence and leads was obviously compromised during this period. Possible witnesses in the vicinity were not interviewed. Why were Washington FBI, CIA, Military and Administration officials unable to coordinate decision making to secure the crime scene and get a competent investigation started on the ground? Was this due to Washington micro-managing, inter-agency intrigue, incompetence or political expediency? The administration spun an untruthful account and then stonewalled further comments by claiming that an investigation was “pending”. An investigation that does not seek to collect facts is a fraud. The question some journalist might have asked was what was being done in furtherance of the investigation i.e. the crime scene investigation and related interviews of witnesses in the vicinity of the crime scene who might have seen or heard something of substance. Many other basic questions about the lack of aggressiveness in the Administration’s response have been unasked by the Press (except the much maligned Fox News). Finally, constitutional issues are important including the first amendment rights of the crackpot author of the video who was setup to be a fallguy in this absurdly spun story. His nationally televised “perp walk” will be a classic reminder of “All In” on this debacle.

Do bears sh*t in the woods?  The story changed, that’s called a lie.  Now let’s see if the lamestream media can chase a story that’s sitting under their noses.

I like how smart people feel when they interrupt any discussion with, “but what about Benghazi!”

Look, the only part of this story you’re looking for is already public, and it’s something a lot of you—I guarantee—would have fully supported under Bush.  The only scandal there is that the “consulate” was actually a rendition site.

The rest of the story is that we paid and armed terrorists (the rebels) to overthrow Qadaffi, and Stevens went to Benghazi (against the advice of the Libyan government) to cover for the ex-SEALs who were supposed to be tracking the weapons we sold, but instead were chatting about it openly on XBox Live.

Either it was a sting (Stevens didn’t leave when the crowd formed as instructed and then ordered) or it was a completely inept special ops mission.  But no matter which way you slice it, it’s not more than a minor, minor political scandal at best, since all of this (except the rendition site, which was only dropped by Broadwell) has been announced fairly openly.

I mean, we paid Arabic terrorists who turned against us because we were holding their people prisoner (and possibly torturing them) on unimportant charges?  Quelle surprise!  Totally doesn’t happen to us twice a year since the ‘50s, right?

It also has nothing useful to do with Petraeus, who can still be subject to subpoena and doesn’t know anything that Morell doesn’t.  There’s no political gain for anybody and nobody is more protected or exposed in his stepping down.  Dead, maybe.  Retired, no.

I’m not saying it shouldn’t be discussed or pursued, but anybody who’s claiming there’s a mystery is being willfully ignorant or blindly following someone who is.

Again, the scandal is that the FBI can dig through your inbox and claim that material they “find” in your draft folder is important to an investigation.

I know, I know, I must be a Democrat.  Haven’t voted for a major party since high school, but I’m sure you know me better, or at least who you’d rather I be to make me easier to dismiss.  I get the same thing when I argue with blind Democrats thinking I must be a Republican.  Must be nice to lose your identity in a vague, corrupted name.

James M. Fitzsimmons

Nov. 16, 2012, 8:48 p.m.

A desire to know the truth about Benghazi is not necessarily partisan if one cares about objective reality. That is the point. Our Press failed us, except for the much maligned Fox News. We have already lost much evidence at the crime scene as a result of witting or unwitting negligence. A comment by Ms. Broadwell about detainees at Benghazi is uncorroborated hearsay until it is corroborated by facts. But her comment does create a nexus between the Petraeus shenanigans and the alleged Benghazi coverup. I am total agreement that the privacy issues and the first amendment issues all need to be discussed.

Is Propublica turning into a right wing rag? Or did they just get duped?

This whole story twists the meaning of “Borked” -

“Borking” is a conservative term popularized in the late 1980s by the right-wing Wall Street Journal editorial page in defense of defeated Supreme Court nominee Robert Bork. Since then, conservatives have pushed the term into the lexicon whenever a conservative nominee comes under unwelcome scrutiny (for example: “Brown Gets Borked,” Journal editorial, 10/30/03).

As conservatives mean it, “to Bork” is “to attack a person’s reputation and views unfairly,” as Bork himself stated in a July 1 interview on CNN. The obvious implication of Bork having been “Borked” is that he was wrongly denied a seat on the high court.”

An alternate view is that the questioning of Bork’s views and the characterizations of his record were appropriate and accurate, and that the Senate was correct to reject Bork as a nominee in 1987. In other words, the notion of “Borking” is right-wing mythology.”

James, my point is that Fox News isn’t doing anything useful, either.  They’re blowing smoke to pretend they’ve uncovered amazing secrets while ignoring the facts.

Again, the big deal is that we paid terrorists and gave them missile launchers.  We do this over and over again, and we’re always shocked when said terrorists turn around and attack our guys after they don’t need us anymore.

But you won’t hear that on Fox, because they were very happy with the “civilian resistance” against Qadaffi.

And since that’s public, the only part left that’s a potential scandal is the prison.  I doubt Broadwell would have invented that (I can’t imagine a useful reason to do so), and it jives with the fact that Stevens wasn’t at an actual consulate, so I’m assuming it’s a fact, but finding out would be a big deal.  Yet Fox News would rather remind people that Americans died because of terrorists and Obama said that it was because of the video.  They won’t go near that aspect, because their model viewers and their talking heads are in favor of such rendition.

Just because someone calls out liars doesn’t mean that person is telling the truth, after all.

This article is part of an ongoing investigation:

Dragnets: Tracking Censorship and Surveillance

ProPublica investigates the threats to privacy in an era of cellphones, data mining and cyberwar.

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