The Kiriakou Conundrum: To Plea Or Not To Plea

There are many symbols emblematic of the battle between the American citizenry and the government of the United States in the war of transparency. One of those involves John Kiriakou. Say what you will about John Kiriakou’s entrance into the public conscience on the issue of torture, he made a splash and did what all too few had, or have since, been willing to do. John Kiriakou is the antithesis of the preening torture monger apologist in sullen “big boy pants”, Jose Rodriquez.

And, so, people like Kiriakou must be punished. Not by the national security bullies of the Bush/Cheney regime who were castigated and repudiated by an electorate who spoke. No, the hunting is, instead, by the projected agent of “change”, Barack Obama. You expect there to be some difference between a man as candidate and a man governing; the shock comes when the man and message is the diametric opposite of that which he sold. And, in the sling of such politics, lies the life and fate of John Kiriakou.

Why is the story of John Kiriakou raised on this fine Saturday? Because as Charlie Savage described, Kiriakou has tread the “Path From Terrorist Hunter to Defendant”. Today it is a path far removed from the constant political trolling of the Benghazi incident, and constant sturm and drang of the electoral polling horserace. It is a critical path of precedent in the history of American jurisprudence, and is playing out with nary a recognition or discussion. A tree is falling in the forrest and the sound is not being heard.

You may have read about the negative ruling on the critical issue of “intent to harm” made in the federal prosecution of Kiriakou in the Eastern District of Virginia (EDVA) last Tuesday. As Josh Gerstein described:

Prosecutors pursuing former CIA officer John Kiriakou for allegedly leaking the identities of two other CIA officers involved in interrogating terror suspects need not prove that Kiriakou intended to harm the United States or help a foreign nation, a federal judge ruled in an opinion made public Wednesday.

The ruling from U.S. District Court Judge Leonie Brinkema is a defeat for Kiriakou’s defense, which asked the judge to insist on the stronger level of proof — which most likely would have been very difficult for the government to muster.

In 2006, another federal judge in the same Northern Virginia courthouse, T.S. Ellis, imposed the higher requirement in a criminal case against two former lobbyists for the American Israel Public Affairs Committee.

However, Brinkema said that situation was not parallel to that of Kiriakou, since he is accused of relaying information he learned as a CIA officer and the AIPAC staffers were not in the government at the time they were alleged to have received and passed on classified information.

“Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed. Accordingly, there can be no question that Kiriakou was on clear notice of the illegality of his alleged communications.

Gerstein has summarized the hard news of the court ruling admirably, but there is a further story behind the sterile facts. By ruling the crucial issue of “intent” need not be proven by the accusing government, the court has literally removed a critical element of the charge and deemed it outside of the due process proof requirement, much less that of proof beyond a reasonable doubt.

What does that mean? In a criminal prosecution, it means everything. It IS the ballgame.

And so it is here in the case of United States v. John Kiriakou. I am going to go a little further than Gerstein really could in his report, because I have the luxury of speculation. As Josh mentioned:

On Tuesday, Brinkema abruptly postponed a major motions hearing in the case set for Wednesday and a hearing set for Thursday on journalists’ motions to quash subpoenas from the defense. She gave no reason for canceling the hearings.

HELLO! That little tidbit is the everything of the story. I flat out guarantee the import of that is the court put the brakes on the entire case as a resultnof an off the record joint request of the parties to facilitate immediate plea negotiation. As in they are doing it as you read this.

There is simply no other reason for the court to suspend already docketed process and procedure in a significant case, much less do so without a formal motion to extend, whether by one party or jointly. That just does not happen. Well, it does not happen unless both parties talked to the court and avowed a plea was underway and they just needed the time to negotiate the details.

So, what does this mean for John Kiriakou? Nothing good, at best. Upon information and belief, Kiriakou was offered a plea to one count of false statements and no jail/prison time by the original specially designated lead prosecutor, Pat Fitzgerald. But the “word on the street” now is that, because the government’s sheriff has changed and, apparently, because Kiriakou made an effort to defend himself, the ante has been ridiculously upped.

What I hear is the current offer is plead to IIPA and two plus years prison. This for a man who has already been broken, and whose family has been crucified (Kiriakou’s wife also worked for the Agency, but has been terminated and had her security clearance revoked). Blood out of turnips is now what the “most transparent administration in history” demands.

It is a malicious and unnecessary demand. The man, his family, and existence are destroyed already. What the government really wants is definable precedent on the IIPA because, well, there is not squat for such historically, and the “most transparent administration in history” wants yet another, larger, bludgeon with which to beat the baby harp seals of whistleblowing. And so they act.

To date, there have been no reported cases interpreting the Intelligence Identities Protection Act (IIPA), but it did result in one conviction in 1985 pursuant to a guilty plea. In that case, Sharon Scranage, a former CIA clerk, pleaded guilty for providing classified information regarding U.S. intelligence operations in Ghana, to a Ghanaian agent, with whom she was romantically involved. She was initially sentenced to five years in prison, but a federal judge subsequently reduced her sentence to two years. That. Is. It.

So, little wonder, “the most transparent administration in history” wants to establish a better beachhead in its fight against transparency and truth. John Kiriakou is the whipping post. And he is caught in the whipsaw….prosecuted by a maliciously relentless government, with unlimited federal resources, and reliant on private defense counsel he likely long ago could no longer afford.

It is a heinous position Kiriakou, and his attorneys Plato Cacheris et. al, are in. There are moral, and there are exigent financial, realities. On the government’s end, as embodied by the once, and now seemingly distant, Constitutional Scholar President, and his supposedly duly mindful and aware Attorney General, Eric Holder, the same moralities and fairness are also at issue. Those of us in the outside citizenry of the equation can only hope principles overcome dollars and political hubris.

Eric Holder, attorney general under President Barack Obama, has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.
“There’s a problem with prosecutions that don’t distinguish between bad people — people who spy for other governments, people who sell secrets for money — and people who are accused of having conversations and discussions,” said Abbe Lowell, attorney for Stephen J. Kim, an intelligence analyst charged under the Act.

The once and previous criticisms of John Kiriakou, and others trying to expose a nation off its founding tracks, may be valid in an intellectual discussion on the fulcrum of classified information protection; but beyond malignant in a sanctioned governmental prosecution such as has been propounded against a civilian servant like John Kiriakou who sought, with specificity, to address wrongs within his direct knowledge. This is precisely where, thanks to the oppressive secrecy ethos of the Obama Administration, we are today.

Far, perhaps, from the “hope and change” the country prayed and voted for in repudiating (via Barack Obama) the festering abscess of the Bush/Cheney regime, we exist here in the reality of an exacerbated continuation of that which was sought to be excised in 2008. Kiriakou, the human, lies in the whipsaw balance. Does John Kiriakou plead out? Or does he hold out?

One thing is certain, John Kiriakou is a man, with a family in the lurch. His values are not necessarily those of those of us on the outside imprinting ourselves on him.

If the government would stop the harp seal beating of Mr. Kiriakou, and at least let the man stay with his family instead of needlessly consuming expensive prison space, that would be one thing. But the senseless hammer being posited by the out for blood successor to Patrick Fitzgerald – Neil MacBride, and his deputy William N. Hammerstrom, Jr. – is scurrilous.

Rest assured, far from the hue and cry on the nets and Twitters, this IS playing out on a very personal and human scale for John Kiriakou while we eat, drink and watch baseball and football this weekend.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
27 replies
  1. bamage says:

    What a curious juxtaposition of posts, Obama goes after Kirakaou just above Darrell Issa outing the CIA agents.

    It’s a great country, Amerika…

  2. x174 says:

    thankee for following up on the decimation of this courageous man. perhaps, instead of outrage over behavior we have grown accustomed too with this despicable administration, the excessive pillaging of a this decent human being is further exposing the nature of the tyranny known as the obama administration and the supposedly irreproachable tenure of Patrick Fitzgerald now revealed as part of the cover-up everything and torture anyone regime.

    balancing the nature of the inhumanity practiced and what that may be telling us about the nature of the perpetrators of this injustice could go a long way to better understanding what it is precisely with which we are dealing.

  3. bmaz says:

    @x174: Well, maybe. But, right now, my bet is Kiriakou would kill for the understated resolve of Patrick Fitzgerald.

    Perspective is important.

  4. Peterr says:

    To plea, or not to plea, that is the question:
    Whether ’tis nobler in the mind to suffer
    The slings and arrows of outrageous lawyers,
    Or to take arms against a sea of charges,
    And by opposing end them . . .

    Or, you know, not.

    Going after leakers has become the Obama administration’s big “see — we’re tough on crime” thing. It’s a pity they don’t go after banksters with the same fervor.

    Maybe if Kiriakou could get a job at Goldman Sachs or JPMorgan this whole thing would go away.

  5. mspbwatch says:

    I’m all for civil disobedience and obeying a higher moral principle to uphold the rule of law, but I have to ask whether Kiriakou went to the Office of Special Counsel (which is authorized by law to receive classified disclosures), and if not, why.

  6. earlofhuntingdon says:

    “[T]he shock comes when the man [Barack Obama] and message [winner of the 2008 top Madison Avenue marketing award] is the diametric opposite of that which he sold.”

    That’s what Madison Avenue has turned marketing into since the 1940’s. It’s what sells adulterated foods as “nutritious” staples. What makes the world’s top polluting oil companies pretend to be “green”. What convinces millions of Americans that the elite of either party has the slightest interest in the lives of Main Street (and living in the underpass) Americans.

    It’s what convinces many more Americans that their government’s domestic and foreign policies promote Norman Rockwell’s freedoms from want, from fear, of speech and of worship. What we have, instead, is freedom to fear, promoted by those who choose to “scare the hell out of us”, who spend more taxpayer money on the military and “intelligence” services than the rest of the world combined.

    Mr. Cheney made Mr. Bush and his government resemble his nightmarish version of America. All beyond the pale and the Constitution. Mr. Obama, kindly enough, moved the pale and XXX’ed out the bits of the Constitution that made that conduct illegal. Like a good bureaucrat, he moves heaven and earth to discredit and punish those who aren’t sufficiently supportive of his program.

  7. scribe says:

    There was once a meme perpetrated by the wingnuts, to the effect that torture and the rest of Bush/Cheney’s atrocities were all right because the Left was silent as Obama continued them. At the time, I said (and continue to say) the silence on the Left was not the sound of approbation or partisan “it’s OK because our guy is doing it”. Rather, I said it was the sound of backs turning on Obama. The backs of the people, un- and under-paid, who worked their butts off for him, to bring him from “who?” to the Oval Office.

    Those people – the Democratic wing of the Democratic party – put up with the bullshit and the veal-pen shenanigans and the brutality of Rahm Emmanuel. I suppose there are any number of explanations for that, though the why doesn’t really matter any more. He did it and hte Democratic wing of the Democratic party put up with it. But, more to the point, as the old proverb goes: “if you are unsure about a person’s character, look at who his friends are.” Coming in Obama was, to many, a cipher. But he admitted his best friend in politics was Emmanuel. Res ipsa loquitur.

    The Democratic wing howled, to some effect, when the banks tried to get a bill signed to fix their liability for robosigning, eliminating all courts’ powers to look behind the papers to see whether the oaths and sworn “facts” had any relation to the truth. The bill made it all the way to Obama’s desk with literally no one’s fingerprints on it – no sponsors, no recorded committee votes, no recorded floor votes. When the people who paid attention howled, Obama backed down and it died.

    But, in reality, that had little if anything to do with the people whose backs have turned on Obama or still are turning or why.

    When Obama got the keys to the place, he looked around at what Bush and Cheney left him and, it’s obvious now*, liked it. A lot. (*When he had his WH take down the questions from the transition page – headed on the day of his inauguration by questions about rectifying torture and Guantanamo by prosecuting the torturers – some of us, myself included, took notice and suspected he had no intention of truly fixing the problem. That he intended to, if not continue the program as before, then at least leave the architecture in place for later use, once society caught up to the need to torture.) And, liking it, he decided to continue it. He kept Brennan, the architect of warrantless wiretapping and who knows how much else. He kept the torturers in the government employ. He let the private armies of Blackwater and the like, answerable only to the warlords owning or paying them, go on and grow. (To be clear, no government in history has survived while allowing private armies to exist within its jurisdiction. These private armies will, given time, take power and destroy the government(s) which allowed them to exist, all in the service of their warlords and owners. On this count, history will be his judge, not the electorate.) Hell, he even kept the goddamn rug trod by the torturers of the Bush/Cheney administration as they built the atrocities and injustices that have marked the entire century so far. Obama only responded to the Democratic wing of the Democratic part in ways, it turns out, which would further inflame the vigor of the Republicans, already mad as hell – driven by race hatred – that a black man was living in the White House. Of course, we see this kind of thing with how he treats Kiriakou on the one hand and Darryl Issa on the other.

    The one time he actually acted consonant with the ideals of equality and equity which have informed the Democrats since at least 1932 – furthering gay rights, most notably by ending DADT – came only after a bunch of rich gays and gay-rights supporters closed their campaign contribution checkbooks. In just about every other way and on every other policy, he attacked his party’s base for having the temerity to ask that he act in accordance with the party’s principles.

    So, why should the Democratic base not turn their backs on him? It’s not like he’ll do anything different come January 2013.

    I’ve heard it said, and think it a trenchant commentary, that the difference between Obama and Romney boils down to that with Obama you’ll get some Barry White sweet-talk and a little grease to smooth things, while Romney will line his own pockets with the grease budget and blather such that no one will have any idea what he said. But, with each of them, you’re still getting it in the ass.

    I can’t see ratifying Obama’s conduct with my vote. It just doesn’t appeal to me. A fair argument can be made that Kiriakou acted correctly under just about any set of moral rules humanity has ever come up with. Helping torturers or helping them get away with their conduct, has been anathema under most all sytems of morality. Unfortunately, the people who engage in torture and, a fortiori those who help them get away with it, often hold the levers of power for the criminal justice system in their hands. And those sorts – the kind who know all the words but have no understanding in them – are usually quite adept at manipulating those levers to protect themselves against justice erupting. History will remember Kiriakou’s as a case of injustice triumphing in the name of law.

    I wonder how the Nobel Committee feels about that Peace Prize now.

  8. bmaz says:

    @mspbwatch: Are you fucking kidding me????????

    Seriously, when Kiriakou, as even assuming he was possibly the flawed man and process as one could hypothecate in a worst case scenario, acted during the Bush/Cheney period when Scott Bloch was entrenched in the position of Office of Special Counsel. You might remember Scott Bloch, he would be the craven jackass who committed multiple felonies while in office including, but NOT limited to dereliction of duty, obstruction of justice, perjury, false statements and, well, you get the idea…..

    Seriously, you waltz in here, on THIS blog and have the unmitigated gall to say it all could have gone to the OSC???

    Get the fuck out.

  9. Peterr says:

    @bmaz: Yeah, but that “could have gone to the Office of Special Counsel” line appeared three and a half hours ago.

    I figured that you had to wait for your high blood pressure meds to kick in.

  10. scribe says:

    @bmaz: Better you than me, BMAz. I bought a new pair of boots yesterday (Made in America, Union Made!) and I dread to think the breaking in I would have given that shitbird.

  11. mspbwatch says:

    Let’s all calm down. OSC was able to accept classified disclosures long before Scott Bloch showed up (since 1979). That said, why do you think neither Kiriakou nor Drake nor anyone else went to OSC? Do you think they’ve even heard of OSC during their moments of decision? Why was OSC not part of the Presidential Policy Directive 19 of last week?

    If this happened in early 2003, when Clinton-apointee Elaine Kaplan was still Special Counsel, and Kiriakou went directly to the press, would that change your (knee jerk) responses?

    I understand the moral argument. Just because he may have broken the law does not mean he should be prosecuted for it, especially in light of the selectivity involved. That’s the Daniel Ellsberg precedent.

    My question is more about the role of OSC in the intelligence community. How many of these folks are going to trash their careers before OSC is looked at with seriousness (especially given its new leader)? How many of them even know of OSC? Could that be a contributing factor in intelligence failures and national security scandals?

    Look beyond Kiriakou and Drake as civil rights martyrs and see them as avoidable casualties in a broken system. OSC is part of that system.

    Does that clarify things for you?

  12. pdaly says:

    The Obama administration is craven to be pursuing this in the vacuum of no DOJ prosecutions for the torture that Kiriakou’s leaks were able to confirm.

    But why would U.S. District Court Judge Leonie Brinkema change the game rules eliminating the hurdle the government was supposed to climb? How can she?

  13. lefty665 says:

    @scribe: Thanks scribe, and…

    “So, why should the Democratic base not turn their backs on him? It’s not like he’ll do anything different come January 2013.”

    It won’t even take that long. The last pieces of the New Deal, SS and Medicare, will be on the lame duck killing room floor before new years. The “Grand Bargain”, the “Oh the financial cliff is coming, the sky is falling, run for your lives” train is rolling. Obama’s prepping us for it with variations on “The rich will have to pay a little more and the rest will have to take a little less”. Obama and phony Dems like Mark Warner are in the cab, Repubs are stoking the boiler, and the throttle’s wide open.

    That Mittens is such a jerk is the only reason the race is close. Among all his lies, his devastation of the middle class arguments are real, and poor people are invisible to both candidates. With actual unemployment (U6) still around 15%, no president should have any hope for re-election. Unless, like FDR, he’s running on a solid record of saving peoples homes, putting unemployed people directly to work, lifting old folks out of poverty, and, well, offering a “New Deal” to the people who have been screwed by the rich.

    I quit the party last year for all the reasons you cite, and more. Despite Romney I’m not convinced I can live with myself if I vote for Obama again. I’ll be there to vote against Allen and Eric Cant. The presidential box may stay blank.

  14. Commuted says:

    “Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed.”

    Apparently he realized what he saw was not legal or moral either. We see a lot of judicial intolerance for matters of conscience. For some reason persons expressing acts of conscience are anathema to judicial sensibility. I suppose this constitutes an appeal to higher levels of humanity.

  15. Commuted says:

    @bmaz: I was hoping their would be a hiatus while the damage already done to the constitution unfolds. Kelo v. New London is taking mineral rights away from Ohioans and they’re being fracked. Some States have given the power of eminent domain to oil companies by statute.

  16. DonS says:

    @bmaz, thanks for this detailed exposition of the destruction and human consequences at stake, pursued by the human rights pretender-in-chief. Surely all the boyz in the club are backslapping old Barry for his balls, or is it gall?

    Meanwhile, the administration sets up another phoney program “protecting whistleblowers” to suck up to some other guileless part of the constituency:

    “But one advocate said the order is “toothless” because the role it gives the DNI, who is an intelligence official. Stephen M. Kohn, the Executive Director of the Washington, D.C.-based National Whistleblower Center, another group that counsels whistleblowers, calls the directive a “smokescreen” that masks real reform. Kohn also highlighted a disclaimer in the presidential directive that he says cancels the order’s other provisions. “This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law,” the order reads.

  17. lefty665 says:

    @bmaz: Thank you bmaz. I appreciate your response. The consequences of a Mittens presidency are profound, and many.

    I take your point that things could be worse on the SCOTUS, and specifically how. However, we’ve got Kagan hunting with Scalia, and a sure vote for state power. To my (not a lawyer) mind, the larger change in the court has long since happened, Scalia, Thomas, Roberts, Alito. Kagan is no antidote, and seems a harbinger of nominees to come in the pattern of the “Grand Bargain”.

    We got Roberts and Alito when the Repubs threatened the “Nuclear Option”, actually permitting a majority of the Senate to confirm nominees and make law. The Dems rolled and the outcomes didn’t change. Subsequently, Dems have not cared enough about anything to allow a majority to make law, starting with the stimulus bill in early 2009. Those failures are why we are at this dire spot now. The first debate had such an impact because it put visuals in real time of what people had felt for three years. Change meant passively sitting there, doing next to nothing, and Obama saying blood curdling things like there are not many differences between him and Mittens on SS.

    Are the differences with a Mittens administration material? Are we already done, and this election simply what kind of icing goes on the cake?

    The question for me is can I have any personal integrity and vote to ratify what Obama has done with the opportunity we gave him and thus encourage more of the same or worse.

  18. lefty665 says:

    “[I]n the early hours of the morning… “one of the wise, practical people around the table” told [Johnson] to his face that a president shouldn’t spend his time and power on lost causes, no matter how worthy those causes might be.

    ‘Well, what the hell’s the presidency for?” Lyndon Johnson replied.'”

    Robert Caro “The Passage of Power – The Lyndon Johnson years”

    Obama’s 3+ years of refusing to lead while collaborating with the rich is profound. Seems that more of the Same is “what the hell the Presidency’s for” in a second term for Obama.

    Will we really be materially less screwed? Sort

  19. lefty665 says:

    “[I]n the early hours of the morning… “one of the wise, practical people around the table” told [Johnson] to his face that a president shouldn’t spend his time and power on lost causes, no matter how worthy those causes might be.

    ‘Well, what the hell’s the presidency for?” Lyndon Johnson replied.'”

    Robert Caro “The Passage of Power – The Lyndon Johnson years”

    Obama has spent 3+ years refusing to lead while collaborating with the rich. Seems that more of the Same is “what the hell the presidency’s for” in a second term for Obama.

    Will we really be materially less screwed? Seems sorta like the different levels of rape the Repubs have been pushing.

  20. What Constitution says:

    Your prescience on this is commendable, bmaz, though I’m certainly sorry you were right. I do hope that those forcing this “resolution” lie awake in shame every night this man spends in prison.

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