The FBI's Role In The Petraeus Investigation

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In Washington scandals, the question is usually what the White House knew.

But in the case of former CIA Director David Petraeus, lawmakers are asking why President Obama did not know about a federal investigation that had found evidence Petraeus was having an affair.

"Once the FBI realized that it was investigating the director of the CIA or the CIA director had come within its focus or its scope, I believe at that time they had an absolute obligation to tell the president ... not to protect David Petraeus, but to protect the president," Rep. Peter King, R-N.Y., told MSNBC Monday.

Matthew Miller, who worked as a top aide to Attorney General Eric Holder at the Justice Department, says he couldn't disagree more.

"If the Justice Department is investigating a member of the administration, they don't want to notify other people in the administration," Miller said. "In fact, if they had notified the White House while this investigation was ongoing, you'd hear howls from members of Congress that this investigation might have been politicized."

There's another reason for not sharing leads more widely, Miller said. Sometimes when the FBI investigates, the allegations don't pan out, or they don't merit any criminal charges. Two law enforcement sources tell NPR that appears to be the case here.

The White House says Obama was first briefed on the case last Thursday, even though federal investigators started looking into what would become the Petraeus case about six months ago.

The FBI inquiry started with a woman in Florida, who socializes with the Petraeus family. She told a friend in the Tampa FBI office that she had received some bothersome, anonymous email messages. Investigators on the trail of possible cyber-harassment traced the messages to Paula Broadwell, author of a biography of Petraeus. And in an email account, the FBI found communications that depicted an affair between Petraeus and Broadwell.

Senior Justice Department officials, including the attorney general, were alerted in the late summer, before FBI agents interviewed key players including Broadwell and Petraeus in September and October. The last interview was within days of the election.

Former CIA Director Michael Hayden told Fox News he still has a lot of questions, particularly about why the House and Senate Intelligence Committees were kept in the dark.

"It's mysterious," Hayden said. "I really don't have insight into it. It appears that the bureau was balancing the law enforcement process [and] the privacy of some individuals involved. Hanging out there is that requirement in law to keep the intelligence committees fully and currently informed about significant intelligence activities."

That requirement is found in the National Security Act and in executive order 12333, covering intelligence activities, that dates back to the Reagan era.

The two law enforcement officials told NPR they didn't tell Congress because the matter did not rise to that level; since they concluded no "intelligence activities" were implicated.

"That's the law, that's what guides us," one of the officials said.

Petraeus was a witness, not a target, in an ongoing criminal investigation and they uncovered no cyber security breaches. Until very recently, agents were still trying to figure out whether anyone broke any other laws.

"They looked very carefully, balancing privacy and fairness with facts," the official added. "There was great concern over not jumping the gun on anything."

Under Justice Department guidelines, reaffirmed in December 2007, after a scandal over the firing of nine U.S. attorneys in the George W. Bush administration, federal authorities are barred from sharing information even with most people in the White House, unless there's a national security exception.

Bobby Chesney, who teaches law at the University of Texas, says there's an obvious national security issue when the CIA director appears on law enforcement radar, "but whether there was ever a formal statutory obligation to give that reporting from the FBI to the intelligence committees, for example, that's far from clear."

Former CIA Director Hayden said it is clear law enforcement was in a tough spot.

"This is an unprecedented sort of thing," Hayden said. "There's no rule book or history as to how you handle these kinds of events."

On Wednesay, officials from the CIA and the FBI will hold private meetings with lawmakers on Capitol Hill, and maybe start the process of rewriting that rule book, should they ever need it again.

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

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