The Evolution of Patrick Fitzgerald’s Investigation into Torturer Disclosures

Back in the CIA Leak Investigation days, we learned some interesting things from the changes in Patrick Fitzgerald’s authority to serve as Special Counsel. So when the Jon Kiriakou complaint the other day mentioned that Fitzgerald’s authority for that investigation had been changed twice…

By letter dated March 8, 2010, Patrick J. Fitzgerald, the United States Attorney for the Northern District of Illinois, was appointed Special Attorney to supervise the investigation pursuant to Title 28, United States Code, Section 515, subject to the supervision of the Deputy Attorney General.

The March 8, 2010 letter, as supplemented and amended on July 14, 2010 and clarified by letter dated May 27, 2011, delegates authority to conduct an investigation and any related prosecutions in connection with any matter arising out of the Department of Defense seizures of certain photographs from Guantanamo Bay detainees.

…It made me wonder whether those authorization letters would explain how this investigation moved from targeting detainee lawyers to targeting a former CIA officer, Jon Kiriakou. I also wondered whether it would tell us anything about whether Fitzgerald used the new DIOG guidelines to get reporter contacts with National Security Letters.

Alas, the letters–March 8, 2010; July 14, 2010; May 27, 2011–don’t answer the latter question. But they do show an interesting evolution over time.

As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.

The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.

[snip]

According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.

[snip]

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba.Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.

At that point in the investigation, Fitzgerald’s mandate was very preliminary.

You are hereby appointed as a Special Attorney to the United States Attorney General pursuant to 28 U.S.C. § 515. In this capacity, you will investigate and determine whether criminal charges are appropriate in connection with any matter arising out of the Department of Defense seizures of certain photographs from Guantanamo Bay detainees.

By July 14, however, it appears that Fitzgerald determined there might be something worth prosecuting.

This letter supplements and amends your appointment as Special Attorney to the United States Attorney General and specifically authorizes you to conduct in the District of Columbia or any other judicial district of the United States any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct.

This supplement, note, was issued slightly more than 18 months ago (some grand jury terms are 18 months long).

So Fitzgerald identified a potential crime 18 months ago and only now is charging (but not yet indicting) someone? That might suggest, by the way, that Fitzgerald got this authority to use a grand jury to force people–perhaps the detainee investigators–to cooperate.

Also note the jurisdiction: the supplement authorizes Fitzgerald to conduct an investigation in DC or anywhere else. It seems Fitzgerald used DC’s FBI officers, but is using Eastern District of Virginia’s courts (CIA’s home court).

The final change to Fitzgerald’s authority was still quite some time ago–May 27, 2011.

This letter is to clarify that the authority delegated to you by the appointment letter of March 8, 2010 (attached), includes, but is not limited to, bringing any criminal charges in connection with: (1) the improper disclosure of classified or national defense information that is related directly or indirectly to the taking of photographs of government employees, copies of which were seized from Guantanamo Bay detainees; (2) the improper disclosure of the names or other identifiers of government employees who participated in sensitive or classified government activities that led to the filing of a sealed defense document in January 2009 containing sensitive information about government employees and activities; and (3) any related improper disclosures made subsequent to January 2009. This authority also includes the authority to investigate and prosecute any efforts at obstruction of justice (including perjury or false statements) that may occur during the investigation.

I find this change particularly interesting. Bullet (1) maps closely to what they’ve charged Kiriakou with: leaking national defense information, including that which was indirectly related to photographs that ended up in detainee cells. The charges pertaining to Deuce Martinez’ identity, for example, are indirect, tied more closely to Kiriakou’s alleged leaks to Scott Shane than to Journalist A. And the “magic box” charge is even more indirect, though I suspect Fitzgerald’s team may have used the magic box charge to establish probable cause to get a search warrant for Kiriakou’s emails.

Bullet (2) is interesting given that the complaint actually claims that a defense filing is what started this investigation.

On or about January 19, 2009, defense counsel for certain high value detainees held at the United States military detention facility at Guantanamo Bay, Cuba, filed a motion with the military commission then responsible for adjudicating charges brought against the detainees, seeking permission to obtain information that counsel contended was necessary to further the defense of the detainees. 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.

[snip]

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.

But Fitzgerald wasn’t formally authorized to investigate that part of things until 28 months after the filing was submitted. Remember, too, that Covert Officer A’s identity was never photographed by the defense team. Of course, once they got Kiriakou’s emails, they would have had pretty solid evidence that Kiriakou had leaked Covert Officer A’s identity, for which he has been charged with an IIPA violation.

And remember–that’s what the CIA wanted in the first place, an IIPA charge (though it’s not clear they suspected Kiriakou).

Finally, there’s Bullet (3) regarding any subsequent disclosures. Now, there was a second batch of photographs found in February 2010, as noted in the Gertz story.

The investigation has been under way for many months, but was given new urgency after the discovery last month of additional photographs of interrogators at Guantanamo showing CIA officers and contractors who have carried out interrogations of detainees, according to three officials familiar with the investigation.

So it’s possible this bullet point serves simply to include those other photos?

Also, Kiriakou’s book was published in 2010. He also wrote an email discussing Covert Officer A after January 2009.

On April 8, 2009, KIRIAKOU again exchanged email communications with Journalist A concerning Covert Officer A. Specifically, at 2:14 p.m., Journalist A emailed KIRIAKOU and asked, “Ever know a [name] in [specific CIA office]?” At 3:09 p.m., KIRIAKOU responded to Journalist A and stated, “Sorry, [first name of Journalist A]. I didn’t know the [specific office] people by name except for [first
name of Covert Officer A].” At the time of this additional disclosure, the association of Covert Officer A with the specific office remained classified at the Top Secret/SCI level because, as described above, it revealed both Covert Officer A’s identity and his association with the RDI Program.

But I also wonder if Fitzgerald found even more recent evidence of leaks?

Update: Publication date of Kiriakou’s book corrected per Jason.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

17 replies
  1. PeasantParty says:

    Hmmm.

    From my armchair position it appears that Fitzgerald requested further jurisdiction and investigation limits. It also appears the reason he did so is exactly as you stated. He must have found a chain or other evidence.

    But then again, I continually think of ex-CIA members and the movie, “Red”. Yes, I know it is fictional comedy, but for God’s sake! So has our government become the same, only non-fiction.

    I still don’t understand why detainee attorney’s trying to defend against torture and detainment, cannot use evidence of torture. Maybe they should play the word games and drop torture and replace it all with illegal interrogation.

  2. MadDog says:

    “…But I also wonder if Fitzgerald found even more recent evidence of leaks?”

    I also find the timing interesting between Kiriakou’s interview Thursday last week by the FBI, and then the hammer coming down on him with the charges and arrest on this past Monday.

    The US government had to have been already to roll prior to Kiriakou’s interview, so what was their purpose a week ago Thursday? On the face of it, it seems gratuitous.

  3. emptywheel says:

    @MadDog: Add in Kiriakou’s wife’s ouster.

    To force her to resign, they probably pulled her security clearance (or threatened to–if they didn’t she could work as a contractor). So part of me wonders whether they thought she had leaked info.

    So imagine they might have something against Kiriakou’s wife they don’t want to prosecute bc it’s awkward. They force her out w/security clearance hardball, and then tell Kiriakou he has to plead or she’ll get the hammer. The interview last week gives them something they can charge down to–the lies. But also, it gives them a fallback in case this case ends up like all their other leak cases do. They’ve got him on false statements, so if he starts waging greymail, they can fall back to false statements (which of course is what FItz did with Libby).

  4. MadDog says:

    @emptywheel: Interesting conjecture! In the piece by Greg Miller of the WaPo, he seemed to go out of his way to say:

    “…She had been on maternity leave in recent months…”

    That seemed to imply a couple of things to me given your conjecture:

    1) She was out of the CIA work loop.
    2) The government may have bugged the Kiriakous’ home and heard the Kiriakous discussing classified stuff “out of school”.
    3) Or her email was being monitored just like her husband’s was.

    I was also struck by the fact that Kiriakou sat down for the FBI interview/interrogation Thursday last week apparently without an attorney. I realize we all do dumb things at times, but this can’t be Kiriakou’s first formal interview/interrogation by the FBI, can it?

    How did he not figure out that he was a target? That’s mostly a rhetorical question.

  5. emptywheel says:

    @MadDog: Well, he proved his questionable intelligence when he–someone trained in spycraft–used email to leak classified information.

  6. MadDog says:

    “…Bullet (2) is interesting given that the complaint actually claims that a defense filing is what started this investigation…

    …But Fitzgerald wasn’t formally authorized to investigate that part of things until 28 months after the filing was submitted…”

    I still find the following part of the filing most curious:

    “…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.

    8. By letter dated March 8, 2010, Patrick J. Fitzgerald, the United States Attorney for the Northern District of Illinois, was appointed Special Attorney to supervise the investigation pursuant to Title 28, United States Code, Section 515, subject to the supervision of the Deputy Attorney General.

    9. The March 8, 2010 letter, as supplemented and amended on July 14, 2010 and clarified by letter dated May 27, 2011, delegates authority to conduct an investigation and any related prosecutions in connection with any matter arising out of the Department of Defense seizures of certain photographs from Guantanamo Bay detainees…”

    (My Bold)

    Correct me if I’m wrong here EW, but isn’t this the timeline:

    1) March 19, 2009 – CIA files a crime report and the DOJ and FBI start an investigation.
    2) March 8, 2010 – The DOJ appoints Fitzgerald to supervise the investigation.
    3) July 14, 2010 – Fitzgerald gets a amended and supplemented letter.
    4. May 27, 2011 – Fitzgerald gets a clarification letter.

    The March 8, 2010 letter clearly states that Fitzgerald is investigating the photographs issue, but the wording in the Kiriakou complaint as shown above seems to imply a direct connection between the CIA crimes report investigation regarding the classified defense filing (and absent the photographs) with the later discovery and a 2nd investigation regarding the photographs.

    And the wording of item 8 in the Kiriakou complaint gives the impression that Fitzgerald was to investigate the issue regarding the CIA crimes report and the then later discovery of the photographs.

    Could be just poor wording on the part of the complaint author, but I’d like to know more about the original investigation pertaining to the CIA crimes report. Who and what was being investigated? What really came of that investigation?

    And as you point out EW, that bullet 2 investigation seems almost like an afterthought “clarification” (so does bullet 3 to me).

  7. MadDog says:

    @emptywheel: You aren’t kidding! This would not have made the cut in an sequel to Halberstam’s Best and the Brightest.

    I was thinking earlier that there is a lot in the Kiriakou case that reminds me a great deal of the Scary Iran Plot. Really dumb things being done by folks that one would think would/should know better.

    The emails are one dumb thing. Not apparently having a lawyer when the FBI starts formally interrogating you, and then allegedly lying to them unconvincingly is another. There are probably a ton more.

  8. MadDog says:

    @emptywheel: The more I think about, the more your conjecture about Mrs. Kiriakou seems a distinct possibility.

    When I first read about her forced resignation, I immediately thought that she was going to have one helluva great slam-dunk lawsuit against the CIA for retaliation against an innocent third party.

    But the CIA couldn’t be that stupid, could they? Probably not. So your conjecture fits the bill nicely.

  9. emptywheel says:

    @MadDog: First, I don’t think 2 and 3 are afterthoughts. That’s how these things are done, to keep the mandate as narrow as possible. And also how Fitz works, IMO, to always make sure what he’s about to do is kosher.

    As to the filing leak and the photo leak? I suspect the former couldn’t get very far bc it was tough to consider it a leak, since it only appeared in a sealed filing. Certainly, CIA wouldn’t have wanted to prosecute unless you had something to hang it on. THe photos give you that.

  10. Jason Leopold says:

    @emptywheel: Could the reference pertain to when his book was finally cleared by PRB? After that is when Kiriakou most likely submitted the final manuscript to the publisher, who accepted it and then it was placed on
    the publication schedule and listed in their catalog for release the following spring. The big publishing houses take forever to publish a book.

    Here’s the press release from Random House: http://www.randomhouse.com/book/93228/the-reluctant-spy-by-john-kiriakou-and-michael-ruby On sale date was March 16, 2010, a week after Fitzgerald was appointed special attorney.

  11. Bob Schacht says:

    Thank you, EW (and MD et al.), for guiding us through this tangled field of weeds. We’re practically back to PlameGate here, except that if there are any white hats, I can’t see them.

    Bob in AZ

  12. orionATL says:

    here’s a view from the non-governmental side of the problem:

    http://www.whistleblower.org/blog/31-2010/1689-cia-whistleblowers-wife-ousted-while-on-maternity-leave.

    i suppose cacheris, et al., have to play the legal game,

    but i sure would like to see some party make a fuss about what is really behind this persecution –

    keeping information about illegal presidential-authorized cia torture away from american citizen and

    preventing guantanamo detainee lawyers from gaining any legal advantage that would disadvantage the military’s kangaroo court at guantanamo.

  13. orionATL says:

    and then there is a third motive:

    the obama administration once again faithfully protecting the bush admin with respect to its deceit-filled march to invade and occupy iraq.

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