- The Washington Times - Friday, November 16, 2012

The senior Republican on the Senate Judiciary Committee is raising questions over the FBI’s legal authority to read the personal emails that revealed the extramarital affair between former CIA Director David H. Petraeus and his biographer, and led the nation’s spy chief to step down last week.

Sen. Charles Grassley, Iowa Republican, wrote to Attorney General Eric Holder, Jr., and FBI Director Robert Mueller asking for “a detailed account of the legal authorities used to obtain each of the electronic communications of those involved” in the scandal, which this week engulfed the departing commander of U.S. forces in Afghanistan, Marine Gen. John Allen.

The letter underlines growing concern about the privacy implications of the case, in which the FBI stumbled across evidence of the affair while investigating anonymous emails that Mr. Petraeus‘ lover, married author Paula Broadwell, sent to a suspected romantic rival.

Mr. Petraeus quit abruptly last week after the White House and his boss, Director of National Intelligence James R. Clapper, were told of the affair, which the FBI and senior Justice Department officials had known about for months.

In his letter to Mr. Holder, sent Thursday, Mr. Grassley asked for “an explanation of the timing and circumstances of how you and [FBI Director Robert Mueller] first learned of this inquiry and when the White House was notified.”

There are very strict rules governing the FBI conduct of criminal cases, dating from the Nixon era, designed to shield the bureau from even the appearance of political interference by insulating it from political appointees in the Justice Department and White House. But the rules for counter-intelligence and national security cases are different, because national leaders might need to be kept abreast of developments.

In May, Mrs. Broadwell sent anonymous emails to and about another woman, warning her to stay away from Mr. Petraeus. One email went to Gen. Allen, who passed it to the other woman, Tampa socialite Jill Kelley.

Mrs. Kelley and her husband had been friendly with both Mr. Petraeus and his wife Holly when the now-retired general was in charge of U.S. Central Command, based at MacDill Air Force Base, outside Tampa. Mrs. Kelley had also become friendly with Gen. Allen while he was Mr. Petraeus‘ deputy there.

Mrs. Kelley contacted a friend, FBI Special Agent Frederick Humphrey III, and the FBI began to investigate.

Mr. Grassley’s letter seeks “an explanation of how and why the FBI opened the inquiry,” and a list of the bureau personnel who had authorized it.

Civil liberties advocates say the investigation shows how easily the FBI can access information about email accounts, because of the way the federal law is worded to protect communications.

Information provided to a third party, like the name given when a user opens an email account are not considered “communication” and can be obtained from email providers without a warrant.

The case is “a reminder that the legal protections for email fall far short of what they should be,” said the American Civil Liberties Union policy analysts Christopher Soghoian on the activist group’s blog.