{"id":20043,"date":"2012-07-09T12:00:34","date_gmt":"2012-07-09T11:00:34","guid":{"rendered":"http:\/\/www.transcend.org\/tms\/?p=20043"},"modified":"2012-07-08T15:43:18","modified_gmt":"2012-07-08T14:43:18","slug":"squelching-secrets-why-are-obamas-prosecutors-pursuing-john-kiriakou","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2012\/07\/squelching-secrets-why-are-obamas-prosecutors-pursuing-john-kiriakou\/","title":{"rendered":"Squelching Secrets: Why Are Obama’s Prosecutors Pursuing John Kiriakou?"},"content":{"rendered":"

One of Patrick J. Fitzgerald’s last cases as one of the nation’s most prominent U.S. attorneys may turn out to be a misfire.<\/em><\/p>\n

John Kiriakou is a 14-year CIA veteran who, until his indictment, was best known for publicly rejecting the Bush administration’s Orwellian doublespeak about “enhanced interrogation.” In a 2007 ABC News interview<\/a>, Kiriakou became the first person directly involved in the handling of terror suspects to call waterboarding at the CIA’s hands what it was — torture.<\/p>\n

But in April, Fitzgerald charged Kiriakou with five criminal counts, including three violations of the Espionage Act \u2014 a 1917 law intended to punish officials for aiding the enemy — for allegedly disclosing national security information to reporters about CIA agents and their role in those interrogations to reporters.<\/p>\n

Fitzgerald\u2019s use of the Espionage Act is in keeping with the Department of Justice\u2019s crackdown on leaks to reporters<\/a>. And the Obama administration has now used the Espionage Act six times to prosecute disclosures to journalists — more than all previous presidential administrations combined.<\/p>\n

But the severity of the charges facing Kiriakou — especially in contrast with the lack of prosecutions related to the interrogations themselves — has outraged human rights activists and good-government groups, who said they see the scapegoating of a whistleblower.<\/p>\n

\u201cThey are going after someone who blew the whistle on torture and waterboarding,\u201d said Jesselyn Radack, national security and human rights director at the Government Accountability Project, which represents whistleblowers, \u201cwhile at the same time, the people who wrote the memos and issued the orders and carried out the torture are being covered up, and get a pass.\u201d<\/p>\n

\u201cI think it really takes very little time to understand that what is going on is an attempt to use censorship as a means of influencing public opinion, by silencing your critics and enabling or empowering those who present the party line,\u201d said Scott Horton, a human rights lawyer and Harper<\/em>\u2019s blogger.<\/p>\n

The administration\u2019s selectivity when it comes to the prosecution of leak cases has also alarmed Republicans in Congress<\/a>, some of whom are demanding to know why cases like Kiriakou\u2019s are prosecuted while disclosures of highly classified information that bolsters the Obama administration\u2019s national security record<\/a> — such as details of the operation to kill Osama bin Laden — go unpunished. As a result, Attorney General Eric Holder in early June appointed two more U.S. attorneys to lead criminal investigation into those leaks as well.<\/p>\n

FORESHADOWING?<\/strong><\/p>\n

Fitzgerald, 51, announced<\/a> in late May that he would step down at the end of June after 10 years on the job. He gave no reason and said he had no immediate employment plans.<\/p>\n

Fitzgerald was widely hailed for handling a series of major cases<\/a>, including successful corruption prosecutions of two consecutive Illinois governors \u2014 Republican George Ryan and Democrat Rod Blagojevich — as well as media mogul Conrad Black. The Associated Press described him as \u201cthe country\u2019s most-feared federal prosecutor.\u201d<\/p>\n

His most celebrated achievement was his 2007 conviction of I. Lewis (\u201cScooter\u201d) Libby<\/a>, then-vice president Dick Cheney\u2019s chief of staff, for perjury and obstruction of justice related to the leak of Valerie Plame\u2019s identity as a CIA operative.<\/p>\n

But the Kiriakou case and the Plame investigation have something in common that critics say could tarnish Fitzgerald\u2019s legacy. In both cases, there were much bigger fish to fry, and they\u2019re still flapping away.<\/p>\n

In the Plame case, Fitzgerald stopped short of indicting Cheney and White House adviser Karl Rove, both of whom had been targets in his investigation — Rove for repeatedly lying about his role in leaking Plame\u2019s identity to then-Time<\/em> magazine reporter Matt Cooper, and Cheney for telling Libby about Plame, then sending him out to talk to reporters. (See related story<\/a> on Fitzgerald\u2019s Legacy.)<\/p>\n

\u201cI think it was a missed opportunity,\u201d said David Gray Adler, incoming director of the Cecil Andrus Center for Public Policy at Boise State University. \u201cIt was really unfortunate that he did not pursue Rove and Cheney, because I think Americans deserved to know the truth of the entire matter.\u201d<\/p>\n

Adler, who writes about the expansion of executive power, said that in both the Libby and Kiriakou cases, Fitzgerald fell short of his obligation to prosecute abuses of power. \u201cIt\u2019s bizarre to me that those who were involved in waterboarding have been granted immunity, and now Kiriakou\u2019s going to be prosecuted for leaking information that exposed illegal actions,\u201d Adler said.<\/p>\n

And while Fitzgerald\u2019s limited mandate in this investigation was to expose leaks — not to prosecute torturers — Adler said the charges against Kiriakou were misplaced. \u201cThis is overkill,\u201d he said. \u201cAnd anytime that you go after those people who are whistleblowers, then you\u2019re going to send a message, you\u2019re trying to intimidate people from practicing a good and open government.\u201d<\/p>\n

\u2018THE RELUCTANT SPY\u2019<\/strong><\/p>\n

Trained as an analyst and operations officer, Kiriakou in March 2002 coordinated the capture in Pakistan of Abu Zubaydah, at the time thought to be a major al Qaeda figure. He left the CIA in 2004 and first came to the public\u2019s attention in December 2007, when he showed up on ABC News.<\/p>\n

In addition to calling waterboarding torture, Kiriakou also confirmed what torture opponents had long suspected: that every decision leading to the torture of CIA detainees was documented and approved in cables to and from Washington.<\/p>\n

\u201cThe cable traffic back and forth was extremely specific,\u201d Kiriakou told ABC<\/a>. \u201cNo one wanted to get in trouble by going overboard. So it was extremely deliberate.\u201d<\/p>\n

The ABC interview, Kiriakou\u2019s supporters said, was the most significant of many ways in which he made enemies within the intelligence community.<\/p>\n

More ill will resulted when, after leaving the CIA, Kiriakou spent a year as an investigator for the Senate Foreign Relations Committee. Then, in March 2010, he published a book, The Reluctant Spy: My Secret Life in the CIA’s War on Terror<\/em><\/a>, which included scathing depictions of the run up to war, the torture program, and FBI lapses immediately after 9\/11.<\/p>\n

\u201cEven if torture works, it cannot be tolerated \u2014 not in one case or a thousand or a million,\u201d he wrote. \u201cIf their efficacy becomes the measure of abhorrent acts, all sorts of unspeakable crimes somehow become acceptable. … There are things we should not do, even in the name of national security.\u201d<\/p>\n

The same month Kiriakou\u2019s book came out, Fitzgerald was put in charge<\/a> of an already long-running investigation into how military defense attorneys at Guantanamo Bay obtained names and photographs of CIA personnel<\/a>.<\/p>\n

The attorneys had submitted the names and pictures in sealed court filings and had given them to detainees, in an effort to help them identify their interrogators. They were never made public. Yet CIA officials were reportedly livid, and demanded that the Department of Justice investigate.<\/p>\n

Fitzgerald eventually cleared the Gitmo defense attorneys of wrongdoing. But on April 5, 2012, a team of prosecutors working under his direction persuaded a Virginia grand jury to indict Kiriakou<\/a> on five criminal counts.<\/p>\n

Kiriakou was accused of disclosing the identity of a covert CIA officer to independent investigative reporter Matt Cole, and disclosing the identity and other \u201cnational defense\u201d information about non-covert CIA officer Deuce Martinez to Cole and New York Times<\/em> reporter Scott Shane, both of whom were investigating the torture of detainees under the Bush administration.<\/p>\n

The final count of the indictment charged Kiriakou with lying to the CIA\u2019s publication review board in order to get permission to write in his book about an electronic scanning device — dubbed a \u201cmagic box\u201d — that the Times<\/em> had already described<\/a> in newspaper articles.<\/p>\n

Kirakou’s supporters<\/a>, including many open-government advocates, said he\u2019s being punished for his whistleblowing. The CIA — through Fitzgerald and the Department of Justice — is trying to chill critical speech, they said.<\/p>\n

\u201cThis prosecution came about after a years-long multi-million-dollar investigation that basically produced nothing,\u201d said Radack. \u201cDoes it really make sense that it landed on John Kiriakou?\u201d<\/p>\n

\u201cI just think that this is too much on Kiriakou,\u201d said Plato Cacheris, Kiriakou\u2019s attorney and one of Washington\u2019s top defense lawyers. \u201cHe\u2019s apparently being singled out, and he has had no intention to violate the law.\u201d<\/p>\n

Randall Samborn, Fitzgerald\u2019s spokesman, declined to comment about the case to The Huffington Post.<\/p>\n

The name of the covert operative that Fitzgerald accused Kiriakou of disclosing has never been made public. According to a criminal complaint<\/a> filed in January, the name ended up in the hands of the defense attorneys because Kiriakou revealed it to Cole. Cole turned it over to the terror suspects\u2019 defense attorneys, but never published it, the complaint said.<\/p>\n

So of the 70 names and 25 photos that the Guantanamo defense attorneys had in their possession, Kiriakou is alleged to have had at most an indirect role in the discovery of one name. And the other charges against Kiriakou have nothing to do with Fitzgerald\u2019s original investigation.<\/p>\n

Kathleen McClellan, a lawyer at the Government Accountability Project, has a theory about why Kiriakou is being singled out.<\/p>\n

\u201cWhoever gave them the other 69 names didn\u2019t blow the whistle on torture,\u201d McClellan said.<\/p>\n

\u2018THE HEAVY HAMMER\u2019<\/strong><\/p>\n

If convicted of all charges, Kiriakou, 48, faces a maximum of 30 years in prison.<\/p>\n

\u201cThere is a range of options that the government has to deal with unauthorized disclosures — anywhere from an adverse performance review to suspension or revocation of clearance, to termination of employment, to financial penalties,\u201d explained Steven Aftergood, who runs the Federation of American Scientists\u2019 Secrecy News blog<\/a>.<\/p>\n

\u201cA felony prosecution under the Espionage Act is the nuclear response. And in this case it seems particularly extreme considering that the information that was allegedly disclosed did not become public.\u201d<\/p>\n

The government\u2019s whole decision-making process is \u201cperplexing,\u201d Aftergood said.<\/p>\n

\u201cThis is the heavy hammer in the arsenal,\u201d said Scott Horton, referring to the Espionage Act. \u201cThey keep losing these cases and yet they keep reaching for it time and again and you\u2019ve got to wonder: What the hell is up with that?\u201d<\/p>\n

Kiriakou is the sixth government official charged with aiding the country\u2019s enemies by talking to reporters since President Barack Obama took office. Some of the other cases are not going well for the government.<\/p>\n

Federal prosecutors initially filed 10 felony charges against Thomas Drake<\/a>, a whistleblower who allegedly provided classified information about gross mismanagement by his employer, the National Security Agency, to a Baltimore Sun<\/em> reporter.
\nThe case fell apart last summer, just before trial, leading prosecutors to drop the charges and settle for Drake pleading guilty to a misdemeanor. The judge called the government’s handling of the case “unconscionable.”<\/a><\/p>\n

The Justice Department has also charged former CIA agent Jeffrey Sterling with violating the Espionage Act for leaking classified information to New York Times<\/em> reporter James Risen about a botched attempt to lead the Iranian nuclear program astray.<\/p>\n

That case may also come undone, the Justice Department has said, unless Risen is forced to testify about his sources — a request that ran afoul of a district court judge and an appellate panel<\/a> in May.<\/p>\n

Now, rumors are circulating in Washington\u2019s good-government community that the prosecution recognizes that it has a weak case against Kiriakou, too — if it has a case at all.<\/p>\n

Sources knowledgeable about the case but not authorized to speak on behalf of either party told HuffPost that prosecutors have met several times with Kiriakou\u2019s defense team to discuss \u201chypothetical\u201d plea deals. These hypotheticals reportedly started with Kiriakou serving 10 years in prison. Days before his April indictment, the hypothetical deals had ratcheted down to no prison time, and a guilty plea only to lying to the FBI.<\/p>\n

Kiriakou is said to have rejected all the offers, refusing to admit any guilt.<\/p>\n

Cacheris, Kiriakou\u2019s lawyer, would only say that he and prosecutors have discussed matters related to sentencing \u201cgenerally, but nothing serious, because we\u2019re sort of looking to go to trial.\u201d Asked about plea agreements in particular, Cacheris said, \u201cWe\u2019ve had meetings to discuss discovery issues. There\u2019s nothing on any plea agreement pending, at least not now.\u201d<\/p>\n

Samborn, Fitzgerald\u2019s spokesman, said that \u201cJustice Department rules prohibit discussions about possible pleas or plea negotiations.\u201d<\/p>\n

Radack said that if prosecutors are indeed talking about no jail time, it \u201cshows how flimsy the case is.\u201d If prosecutors believe Kiriakou to be guilty of multiple espionage charges, \u201csurely they wouldn\u2019t let him walk away,\u201d Radack said.<\/p>\n

Matt Miller, a former Justice Department spokesman who is now a public affairs consultant, said his former colleagues\u2019 actions seemed justified to him.<\/p>\n

\u201cMy take on it is pretty simple: He broke one of the cardinal rules of the intelligence world, which is exposing the name of a covert operative, and because of that is being indicted,\u201d Miller said. \u201cPeople in the intelligence community take that more seriously than just about anything.\u201d He added: \u201cAs for why others did or didn\u2019t get prosecuted, it\u2019s just impossible to say from the outside.\u201d<\/p>\n

Fitzgerald told reporters at a May 24 press conference that his departure would not affect pending cases. Dean Boyd, a Justice Department spokesman, said in an email, \u201cThe Kiriakou case will continue to be handled by the team of veteran prosecutors<\/a> who are assigned to it.\u201d<\/p>\n

Fitzgerald never appeared in court on the matter himself.<\/p>\n

\u201cWho might be charged with overseeing the team after Mr. Fitzgerald\u2019s departure on June 30 is still to be determined,\u201d Boyd told HuffPost.<\/p>\n

THE WRONG MAN?<\/strong><\/p>\n

The bitterest irony of the case is that if Kiriakou had actually tortured, rather than talked about it, he almost certainly wouldn\u2019t be in trouble.<\/p>\n

The torturers and their commanders have no fear because Obama has vowed to \u201clook forward instead of looking backward<\/a>\u201d when it comes to crimes committed during the post-9\/11 period in the name of national security.<\/p>\n

Indeed, the same month Kiriakou was indicted, former CIA officer Jose Rodriguez, who oversaw the interrogation program, was on a book tour, proudly defending waterboarding and his own decision to destroy videos of interrogations<\/a> in which it was used.<\/p>\n

In the Kiriakou case, prosecuting the actual torturers wasn\u2019t in Fitzgerald\u2019s purview. Unlike the Valerie Plame investigation, where he was appointed as a special counsel and could choose his own course, in this leak case, he was very much working under Justice Department supervision, with a remit that focused narrowly on the Guantanamo defense attorneys.<\/p>\n

But pursuing Kiriakou and throwing the book at him was clearly Fitzgerald\u2019s call — and one for which he may be called to account in the history books.<\/p>\n

Maybe Fitzgerald isn\u2019t all he\u2019s cracked up to be, Steven Aftergood said. \u201cThere does seem to be a pattern of going for the little guy,\u201d he noted. \u201cJust because he\u2019s ferocious doesn\u2019t mean he\u2019s either wise or brave.\u201d<\/p>\n

____________________<\/p>\n

Dan Froomkin is senior Washington correspondent for The Huffington Post.<\/em><\/p>\n

Go to Original \u2013 huffingtonpost.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

John Kiriakou is a 14-year CIA veteran who, until his indictment, was best known for publicly rejecting the Bush administration’s Orwellian doublespeak about “enhanced interrogation.” In a 2007 ABC News interview, Kiriakou became the first person directly involved in the handling of terror suspects to call waterboarding at the CIA’s hands what it was — torture.<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[65],"tags":[],"class_list":["post-20043","post","type-post","status-publish","format-standard","hentry","category-anglo-america"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/20043","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=20043"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/20043\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=20043"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=20043"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=20043"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}