Lawyers for Jill Kelley say there are good reasons they should be allowed to continue questioning an FBI agent in connection with their lawsuit accusing the federal government of violating their privacy.
According to court documents filed late Thursday, the woman who inadvertently set off a chain of events leading to the resignation of CIA Director David Petraeus was the target of FBI agents in Tampa fishing for evidence she was romantically involved with military leaders.
Instead of treating Kelley as a potential crime victim, some of those agents were making lewd remarks about her. The documents say the agents referred to Kelley as a “femme fatale” who brought the trouble upon herself.
These allegations, according to Kelley’s lawyers, will help them prove there was a deliberate decision to expose Kelley to the public — a requirement they must meet to prevail in their Privacy Act claim against the FBI and the Department of Defense.
The claim is the one element that has survived from a much broader lawsuit filed in June 2013 against the agencies as well as other defendants later removed from the suit.
The Justice Department declined comment on Kelley’s Thursday court filing.
On Sept. 2, a deposition by FBI Supervisory Special Agent Adam Malone was halted by an attorney for Kelley and her husband Scott after a Justice Department attorney raised a number of objections to the questioning. The attorney refused to let Malone say when he learned that emails sent to Scott Kelley’s account were from Paula Broadwell.
Broadwell’s affair with Petraeus led to his resignation just days after the Nov. 6, 2012, re-election of President Barack Obama. The affair was discovered during an FBI cyberstalking investigation that eventually led to Broadwell. Broadwell later was cleared of wrongdoing.
In April, Petraeus was ordered by a federal judge to pay $100,000 in fines and receive two years probation for the misdemeanor count of unauthorized removal and retention of classified material. He pleaded guilty to turning over the material to Broadwell, co-author of his biography “All In: The Education of David Petraeus.”
Earlier this month, the government filed a motion to limit Malone’s testimony, arguing that during that Sept. 2 deposition, he was subjected to queries designed to “annoy, harass and embarrass” him and the agency.
The government also argues that some questions from the Kelleys’ attorneys are designed to advance the couple’s “public relations goals” and insinuates that the Kelleys have leaked information from the case to the media.
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In a filing Thursday, made in response to the government’s motion, Alan Raul, the Kelleys’ lead attorney, argued that Malone’s actions make it imperative he be questioned to prove that Jill Kelley’s name was purposely leaked.
To support the argument, Raul said in the filing that the FBI accessed an email account of the Kelleys’ even though they expressly objected, and that “voluminous, personal emails” from the couple ended up in the hands of Malone and other senior officials “who willfully mischaracterized and leaked them to members of the press.”
Some of the emails were to and from Marine Gen. John Allen, a friend of the Kelleys from his time in Tampa who temporarily led U.S. Central Command at MacDill Air Force Base before being placed in charge of U.S. forces in Afghanistan.
A June 2012 email to Allen from the address [email protected] triggered a cyberstalking investigation by the FBI, according to Raul’s filing. The email disparaged Jill Kelley and made reference to an upcoming dinner she and her husband were having “with several senior foreign intelligence, defense, and diplomatic officials.”
Allen “was troubled by the email,” according to the Kelleys’ lawsuit, “in particular that somebody knew about the dinner, which had not been publicly announced, thereby presenting a potential security concern.”
The email also frightened the Kelleys because it indicated Jill Kelley was being followed or stalked, raising concerns about her safety, “particularly given the number of terrorist risks faced by CENTCOM leaders.”
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The Kelleys reached out to another family friend, FBI agent Fred Humphries, who met Kelley through her work with the U.S. Central Command’s international coalition at MacDill Air Force Base. Humphries, a decorated agent who once helped thwart a major jihadi attack against Los Angeles and who shot and killed a knife-wielding man threatening personnel and guests at MacDill, was concerned about potential threats against military leaders. He reported the Kelley’s concerns to his superiors in Tampa, sparking the probe that ultimately brought down Petraeus.
But instead of strictly pursuing the source of the emails, Agent Malone treated Kelley as a “femme fatale,” according to the Thursday filing by attorney Raul.
Based on a deposition by Humphries, the filing says, the Kelleys “have a strong basis for ... considering SSA Malone the source of at least one disclosure and ...demonstrating a pattern of the FBI’s flagrant disregard for Plaintiffs’ privacy rights.”
“Plaintiffs have discovered that the FBI viewed the investigation through a prurient lens,” the filing says.
As an example, Raul cites Humphries’ testimony that “the FBI had the preposterous view that ‘Jill Kelley had sort of brought this on herself and was some femme fatale.’”
Asked whether FBI agents in Tampa made lewd comments about Kelley, Humphries answered yes, according to the filing.
Humphries then mentioned how other agents reacted to his nomination of Jill Kelley to take part in the FBI Citizens’ Academy, designed to introduce local residents to the bureau and its work.
“[O]n at least one occasion one individual made a comment that he was pleased that Mrs. Kelley was in the Citizens’ Academy and that I had nominated her because of her breasts,” Humphries is quoted as saying in the filing. “Also, SA Humphries was told by his superiors that the Director and Deputy Director of the FBI were convinced” Humphries was having sex “with Jill Kelley.”
Humphries, through his attorney, has denied having sex with Kelley. Kelley has denied having extramarital sex.
Aside from Malone’s testimony, the Kelleys’ attorneys are also seeking additional documents in the case, saying the FBI has produced few that reflect internal agency communications among personnel working on the cyberstalking investigation.
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Additional testimony and documents, Raul argues, may demonstrate that the FBI searched the Kelleys’ email account in hopes of finding “sexually explicit or flirtatious emails between Jill Kelley and military officials,” or to divert media attention from the Petraeus resignation.
So far, information collected by the plaintiffs during the discovery phase indicates that the email account was the focus of the FBI cyberstalking investigation, the filing says.
As evidence, Raul points to descriptions of a “flow chart with (Jill) Kelley in the center and military officers and the Director of the CIA in the outerrim’ (sic) that Special Supervisory Agent Adam Malone, one of the agents assigned to the case, kept in his cubicle.”
The FBI, Raul argues, “has not produced any communications between the FBI and the DOD, or either the FBI and any other government agency.”
The bureau, he added in his filing, has failed to produce, or even identify “all the documents transferred from the FBI to the DOD on November 11, 2012.”
These documents would bear on the Kelleys’ assertion that former Pentagon general counsel Jeh Johnson, now secretary of Homeland Security, may have leaked Jill Kelley’s name.
Her name first appeared in news reports that day.
Johnson told the Tribune in a 2013 interview that during that weekend, he received 25,000 pages of emails between Kelley and Allen from the FBI.
Johnson said the FBI told him the emails were not germane to Kelley’s cyberstalking complaint but might be of interest to the Department of Defense because “of a potentially inappropriate relationship involving a military officer” who at the time was commanding U.S. troops in Afghanistan.
Under the Uniform Code of Military Justice, it is a violation for a married service member to have an affair.
“My strong recollection is that the emails that were handed over to me by the FBI were the product of subpoena, therefore they would have picked up every single communication between Mrs. Kelley and Gen. Allen,” Johnson told the Tribune.
When the Kelleys sought to depose Johnson in their lawsuit, federal Judge Amy Berman Jackson ordered that the couple first subpoena reporters to get them to talk about the source of their leaks.
As a result, nine reporters who covered the story were subpoeaned to testify. Those who relied on “law enforcement sources” for their information must now await Jackson’s ruling on the government’s motion before they will be ordered to testify. Those who relied on “military officials” will have their depositions continue as scheduled.