Will the CIA Regret It Started a Witchhunt against Detainee Lawyers?

As I noted, DOJ charged former CIA officer Jon Kiriakou for allegedly leaking information relating to the CIA’s torture program (as well as purportedly secret information about GPS tracking that is not secret).

But remember how this investigation started: as an effort to implicate Gitmo detainees’ lawyers.

1) DOJ has been investigating the John Adams Project since last August to find out how photographs of torturers got into the hands of detainees at Gitmo. The JAP has employed a Private Investigator to track down likely interrogators of detainees, to take pictures, get a positive ID, and once done, call those interrogators as witnesses in legal proceedings. DOJ appears concerned that JAP may have made info–learned confidentially in the course of defending these detainees–available to those detainees, and therefore violated the protective order that all defense attorneys work under. Yet JAP says they collected all the info independently, which basically means the contractors in question just got caught using bad tradecraft.

2) DOJ appears to believe no crime was committed and was preparing a report to say as much for John Brennan, who will then brief Obama on it.

3) But CIA cried foul at DOJ’s determination, claiming that because one of the lawyers involved, Donald Vieira, is a former Democratic House Intelligence staffer, he is biased.  They seem to be suggesting that Vieira got briefed on something while at HPSCI that has biased him in this case, yet according to the CIA’s own records, he was not involved in any of the more explosive briefings on torture (so the claim is probably bullshit in any case). After CIA accused Vieira of bias, he recused himself from the investigation.

4) So apparently to replace Vieira and attempt to retain some hold on DOJ’s disintegrating prosecutorial discretion, DOJ brought in Patrick Fitzgerald to pick up with the investigation. Fitz, of course, a) has impeccable national security credentials, and b) has the most experience in the country investigating the Intelligence Identities Protection Act, having investigated the Torturer-in-Chief and his Chief of Staff for outing CIA spy Valerie Plame. In other words, DOJ brought in a guy whom CIA can’t bitch about, presumably to shut down this controversy, not inflame it.

Now, it appears that the CIA’s concerns were included in the memo to Brennan over DOJ’s wishes. Or perhaps Fitz is just going to review the case. And if the JAP people did, as they say, use only external information to ID these torturers, then they are likely legally safe and the involvement of Fitz is simply going to quiet down the controversy.

The investigation appears to have led to Kiriakou by tracing backwards through–presumably–John Sifton (who led the John Adams Project work) to his source, an as-yet unidentified journalist, and from him to Kiriakou.

Now, as a threshold matter, the investigation completely exonerated the detainee lawyers.

According to the complaint affidavit, the investigation determined that no laws were broken by the defense team as no law prohibited defense counsel from filing a classified document under seal outlining for a court classified information they had learned during the course of their investigation. Regarding the 32 pages of photographs that were taken or obtained by the defense team and provided to the detainees, the investigation found no evidence the defense attorneys transmitting the photographs were aware of, much less disclosed, the identities of the persons depicted in particular photographs and no evidence that the defense team disclosed other classified matters associated with certain of those individuals to the detainees. The defense team did not take photographs of persons known or believed to be current covert officers. Rather, defense counsel, using a technique known as a double-blind photo lineup, provided photograph spreads of unidentified individuals to their clients to determine whether they recognized anyone who may have participated in questioning them. No law or military commission order expressly prohibited defense counsel from providing their clients with these photo spreads.

More interesting, the investigation led to a guy who was leaking very helpful propaganda to ABC in December 2007, claiming that Abu Zubaydah was only waterboarded once, and it succeeded in “breaking” him in less than 35 seconds.

A leader of the CIA team that captured the first major al Qaeda figure, Abu Zubaydah, says subjecting him to waterboarding was torture but necessary.

In the first public comment by any CIA officer involved in handling high-value al Qaeda targets, John Kiriakou, now retired, said the technique broke Zubaydah in less than 35 seconds.

“The next day, he told his interrogator that Allah had visited him in his cell during the night and told him to cooperate,” said Kiriakou in an interview to be broadcast tonight on ABC News’ “World News With Charles Gibson” and “Nightline.”

“From that day on, he answered every question,” Kiriakou said. “The threat information he provided disrupted a number of attacks, maybe dozens of attacks.”

Now, the charges against Kiriakou derive from alleged leaks dating back to May 2007–7 months before Kiriakou’s CIA-helpful propaganda.

But he was not charged for the CIA-helpful propaganda (though it is possible that Brian Ross was one of the journalists to whom he allegedly leaked).

If I’m Jon Kiriakou, the very first thing I do in discovery is ask for any internal CIA discussion of that on-the-record leak, the one CIA hasn’t charged but that helped them. Because he would be able to show, almost immediately, that CIA doesn’t give a damn if its “secrets” are leaked in ways that are useful for their propaganda.

I’m guessing Kiriakou mounts a very successful graymail defense. But possibly not before CIA regrets inciting a witchhunt against detainee lawyers.

Update: David Petraeus’ statement on this leak to CIA officers sounds pretty sheepish, especially this bit. (h/t Laura Rozen)

I want to take this opportunity to ask you to remember the following: in return for the secrecy we need to do our work, the American people and our elected representatives expect us to uphold our nation’s laws and values. When we joined this organization, we swore to safeguard classified information; those oaths stay with us for life. Unauthorized disclosures of any sort—including information concerning the identities of other Agency officers—betray the public trust, our country, and our colleagues. Given the sensitive nature of many of our Agency’s operations and the risks we ask our employees to take, the illegal passage of secrets is an abuse of trust that may put lives in jeopardy. Thanks to each of you for keeping all this in mind as we work together to perform missions of great importance to our country.

Update: “Indicted” corrected to “charged.”

9 replies
  1. joanneleon says:

    Oh, the irony of Petraeus’ words. Fitzgerald must have gagged when he read this:

    Unauthorized disclosures of any sort—including information concerning the identities of other Agency officers—betray the public trust, our country, and our colleagues.

  2. William Ockham says:

    I’m going to wildly speculate, based on the timeline of the leaks, that Journalist A is Brian Ross and the defense investigator is John Sifton.

    According to the DOJ press release, Kiriakou started leaking to Journalist A (about Deuce Martinez) in November 2007 (continuing through November 2008). Ross interviewed Kiriakou in December 2007. Ross has used Sifton as a source for years. In fact, in April 2009,when Brian Stelter wrote an article criticizing Ross for the Kiriakou interview, Sifton wrote a letter to the NYT Public Editor taking Stelter to task for not pointing out that Shane had quoted Kiriakou saying the same thing in the NYT in June 2008.

  3. MadDog says:

    I’m sure we’ll soon see the world’s finest timeline on this case from you-know-who, the world’s finest timeliner, but in the meantime us mortals will have to contend with our own limited skills.

    In keeping with that thought, I’m trying to figure out what really kicked off the CIA’s filing of a crimes report to the DOJ on March 19, 2009. According to page 6 of the Kiriakou indictment (29 page PDF):

    “…The Initiation of the Investigation and Appointment of Special Attorneys

    7: After reviewing the January 2009 classified defense filing (and prior to the discovery of the photographs), the CIA filed a crimes report on March 19, 2009, with the Department of Justice. The National Security Division of the Department of Justice, working with the FBI, commenced an investigation…”

    What crimes were the CIA referring to here?

    From page 5 of the indictment is this description of the classified defense filing:

    “…In support of this motion, defense counsel filed a classified document under seal (the “classified defense filing”), which, named or otherwise identified multiple persons whom defense counsel believed to be United States government personnel involved in classified activities relevant to the legal defense of the detainees. The classified defense filing contained both accurate and inaccurate information relating to the identity and affiliation of the individuals described in the document, as well as to activities in which they participated…”

    US government personnel involved in the torture of detainees.

    That doesn’t sound particularly criminal on the part of the defense attorneys to me. On the contrary, it sure sounds like these were descriptions of crimes and the criminals who committed them.

    If the world had any real justice, the CIA’s crimes filing to the DOJ would have been in regard to their own employees and contractors.

  4. MadDog says:

    @MadDog: Charlie Savage of the NYT has his piece up on this topic:

    Ex-C.I.A. Agent Accused of Leaking Identity of Covert Officer

    Though I typically hold Charlie Savage in high regard, in this instance I take issue with an implication in his story:

    “…The investigation that led to the charges against Mr. Kiriakou began in 2009, after defense attorneys made a classified filing before a military commissions judge about the identities of officials who had interrogated their clients. A few months later, guards at the American detention center at Guantanamo Bay, Cuba, discovered 32 pages of photographs in the cells of several high-level Qaeda figures. Among them were pictures of several employees of the C.I.A. and F.B.I. and government contractors.

    That discovery created an uproar as critics accused the defense lawyers of endangering the officials and their families and the C.I.A. pressed the Justice Department to investigate whether the defense teams had violated any laws. In March 2010, Mr. Holder appointed Patrick J. Fitzgerald, the United States attorney in Chicago, to handle the case…”

    (My Bold)

    The 2nd paragraph above seems to imply that the uproar was as a result of the discovery of the photographs, but as the Kiriakou indictment specifically notes:

    “…The Initiation of the Investigation and Appointment of Special Attorneys

    7: After reviewing the January 2009 classified defense filing (and prior to the discovery of the photographs), the CIA filed a crimes report on March 19, 2009, with the Department of Justice. The National Security Division of the Department of Justice, working with the FBI, commenced an investigation…”

    (My Bold)

  5. PeasantParty says:

    I don’t know, but I do know that more than just a few CIA/spooks are mad as hell at the positions they’ve been put in. There is more than just a grudge being held against Bush and Cheney, Rove as well. I don’t know how this will play going forward, but from what I understand things are not so honkie dorie with a majority that have been twisted in the wind.

  6. Jeff Kaye says:

    Nothing is really clear to me here, and I don’t trust any aspect of the narrative such as we have it. (By the way, your link to the criminal filing isn’t working. Here’s an alternate from Washington Post: http://www.washingtonpost.com/wp-srv/world/documents/john-kiriakou-criminal-complaint.html)

    If Journalist A were avidly pursuing the full name of Covert Officer A, then why was it never published? It was quickly given to the defense investigator (“approximately two hours later”), but Journalist A never used that identity in any written article. So, why was he or she pursuing it so intently?

    Neither Journalist A, nor any other journalist to the government’s knowledge, has published the name of Covert Officer A.

    It is interesting that the defense investigator realized the covert nature of Covert Officer A and never acted upon that information (though it was used in a defense filing?). Did the defense investigator (Sifton?) suspect he and JAP were being set-up? Notably, the defense investigator had no problems using the information about Officer B, who apparently had a lesser classification status.

    I also find it difficult to believe that the CIA Publications Review Board was not cognizant of a surveillance technique used, in this case, to trace cell phone users, or believed it was fictional. How does CIA PRB do their work, anyway? That doesn’t seem believable to me. Also, what was the purpose of Kiriakou telling his co-author in an email (evidence) that he lied to the CIA about it?

    What is the point, too, of calling Deuce Martinez “Officer B”, when even the DoJ statement says the name is now declassified?

    Additional thoughts: How did DoJ get Journalist A and B’s emails? Journalist B is obviously Scott Shane, and so identified by reference to his article in the press release.

    Now, Kiriakou may simply be a pathological liar who can’t keep his stories straight, and the CIA was pissed off when some of his shenanigans spilled over to defense attorneys at Gitmo. Certainly the government appears able to have gotten emails from journalists and even Kiriakou’s co-author with not too much difficulty, which is scary enough.

    Kiriakou is repeatedly “caught” lying about things that the emails then show are not true. We are to believe that Kiriakou never thought these emails or any other evidence would surface?

  7. Jeff Kaye says:

    As to the “propaganda value” of Kiriakou’s “revelation” that Zubaydah talked after 30-35 seconds of waterboarding, especially when we have the CIA IG report saying (as you know more than anyone) that AZ was waterboarded 83 times…

    I see no conflict here. The quick capitulation is consistent with other reports of how waterboarding works, including SERE documents that I wrote about and posted.

    I’d say the number of waterboarding incidents, as I’ve said many times before, is related to an illegal biological experiment conducted on Zubaydah and others. Unlike torture, which was explained away by OLC pixie dust, biological experiments are and were a war crime punishable by death, part of the War Crimes Act, and still included in the MCA rewrite of same.

    Physicians for Human Rights in a white paper a few years ago set out a circumstantial case for such experiments, and the use of waterboarding and medical observations upon same were one of the primary reasons given for positing the experiments. The appendix of that report refers to research conducted by Dr. Charles A. Morgan III, studying biological and psychological markers of severe stress upon, among other subjects, mock torture victims in the SERE program. PHR neglected to note, which they certainly knew, that Dr. Morgan had advertised himself as a “Senior Research Scientist, Behavioral Science Staff, Central Intelligence Agency, Washington, DC ” at certain non-classified professional gatherings. (See the participant list for this 2004 joint FBI/Amer. Psych Assn/National Institute of Justice workshop on law enforcement and “intuition” — don’t want anyone to think I’m releasing classified info anyone gave me!)

    There is a hell of a lot we just don’t know, because of the invocation of secrecy. The prosecution of Kiriakou, just like the investigation of the John Adams Project, and the crackdown on “leaks” in general by the Obama administration, is mostly meant to stop evidence of crimes from coming out.

  8. klynn says:

    Because he would be able to show, almost immediately, that CIA doesn’t give a damn if its “secrets” are leaked in ways that are useful for their propaganda.

    This quote is triggering many thoughts in my mind about the AIPAC spy case…

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