John Kiriakou’s Prosecution Is an Important Precedent to CIA – Senate Intelligence Committee Spat

On several occasions, I have pointed to the arbitrary system our classification system constructs. It asks government employees to spy on their colleagues. It permits agencies to conduct fishing expeditions into personal information as part of the polygraph process. It permits Agencies to selectively approve propaganda under the guise of pre-publication review (most notably in the case of Jose Rodriguez and John Rizzo). By stripping sensitive unclassified jobs of their Merit Board protection, even lower level staffers who don’t receive a clearance-related income boost are now subject to this arbitrary system. And Congress even tried to use pensions as another leverage point against cleared personnel.

The arbitrary nature of this system is perhaps most clear, however, when it comes to prosecutions.

Which is a point John Kiriakou made in an op-ed yesterday. In it, he suggests Leon Panetta and James Cartwright could be sitting next to him in Loretto Prison.

The [Espionage Act] states: “Whoever, lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates … the same to any person not entitled to receive it … shall be fined under this title or imprisoned not more than 10 years, or both.”

A transcript obtained by the organization Judicial Watch shows that, at a CIA awards ceremony attended by Boal, Panetta did exactly that. The CIA seems to acknowledge that Panetta accidentally revealed the name of the special forces ground commander who led the operation to kill Osama bin Laden, not knowing that the Hollywood screenwriter was part of an audience cleared to hear him speak. But intent is not relevant to Espionage Act enforcement.

U.S. District Court Judge Leonie Brinkema ruled in my case that evidence of the accidental release of national defense information was inadmissible, and she added that the government did not have to prove that a leak of classified information actually caused any harm to the United States. In other words, the act of disclosing the kind of broad information covered by the Espionage Act is prosecutable regardless of outcome or motive.

The sensitivity of what Panetta revealed is not in question. The spokesman for the former CIA director said Panetta assumed that everyone present at the time of the speech had proper clearance for such a discussion. When the transcript of the speech was released, more than 90 lines had been redacted, implying that Panetta had disclosed a great deal more classified information than the name of an operative.

[snip]

If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.

[snip]

If Panetta and Cartwright aren’t accountable while Drake, Kim and I have been crucified for harming U.S. national security — all of us accused of or investigated for the same thing: disclosing classified information to parties not authorized to know it — then what does that say about justice in America or White House hypocrisy?

Kiriakou goes on to call for changes in the Espionage Act to focus on issues of intent and harm.

Kiriakou is, of course, correct that he got punished for things that Panetta and Cartwright have (so far, at least) escaped such levels of punishment for. (I’d also add the unnamed real sources for the UndieBomb 2.0 leak, who are being protected by the scapegoating of Donald Sachtleben.)

But I’d go even further. Given reports that FBI is investigating whether Senate Intelligence Committee staffers violated the law for obtaining proof the Agency they oversee was hiding evidence from it, it’s crucial to remember how Kiriakou’s prosecution came about, which I laid out in this post.

It started when CIA officers claimed that when Gitmo defense attorneys provided photos of their clients torturers to them–having independently discovered their identity–the torturers were put at risk. DOJ didn’t believe it was a security risk; CIA disagreed and went to John Brennan. And after Patrick Fitzgerald was brought in to mediate between DOJ and CIA, the prosecution of John Kiriakou resulted.

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.

What happened with Kiriakou’s sentencing today is many things. But it started as–and is still fundamentally a result of–an effort on the part of CIA to ensure that none of its torturers ever be held accountable for their acts, to ensure that the subjects of their torture never gain any legal foothold to hold them accountable.

The CIA has succeeded in making an object lesson of a man who betrayed their omerta.

When Gitmo lawyers did what any good defense lawyer (especially for detainees facing the death penalty) would do — investigate the conditions of their client’s confinement and the crimes committed by their “jailers” — the CIA struck back, demanding a scalp.

And they got it. John Kiriakou.

The Senate Intelligence Committee spat seems to arise from the same instinct (and, like the John Adams Project case, stars John Brennan): an effort to forestall accountability for CIA wrong-doing with a trumped up criminal investigation. The Senate Torture Report shows that CIA systematically lied to all their overseers about their ineffective torture program. And as with the identities of the torturers that have remained suppressed since Kiriakou’s imprisonment, it appears increasingly likely the Report will be suppressed amid a manufactured criminal witch hunt.

The selectivity with which leakers are prosecuted not only allows the powerful to use classification as a weapon of propaganda, the way Leon Panetta’s leaks helped Hollywood create CIA propaganda. But the use of prosecutions have become so arbitrary, CIA increasingly succeeds in using them to criminalize legitimate oversight.

Which really raises questions about how CIA always manages to game these prosecutions.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

18 replies
  1. orionATL says:

    it’s worth stating the obvious (hey, bmaz, print’s still too small. com’on big dog!)

    that the cia uses the law selectively.

    presidential directive or no, torture is illegal under u.s. law as well as international law.

    the cia engaged in torture – focused, academically-designed torture. this was a major breech of law by the cia, as well as by its individual torturers and their academic advisors.

    further, the cia in the person of cia attorney rodriguez, destroyed evidence of torture, and deliberately destroyed it after being ordered by a federal judge not to do so.

    no prosecution has ever arisen from these extraordinary illegal actions.

    yet cia agent john kiriakou was prosecuted on a triviality, a technicality – he revealed to a reporter a phone number of a torturer which number had already bern publicly posted by the torturer.

    juxtaposing these two legal situations involving torture makes it clear that the cia uses, and our doj permits, selective prosecution – prosecuting on trivialities and failing to prosecute on major breeches of law.

    i want also to insist that the cia does not give a rat’s ass about what happens to its torturers, or any of its individual employees. john kiriakou was such an employee and he was targeted. valetie plame was an employee and cia never lifted a finger on her behalf.

    the cia would betray, and has betrayed, any of its employees in an instant if necessary – that’s the kind of institutional leaders the cia rewards and advances in rank.

    the cia only cares that the cia as an institution not be publicly acknowledged as guilty of illegal conduct.

    • chronicle says:

      quote”the cia only cares that the cia as an institution not be publicly acknowledged as guilty of illegal conduct.” unquote

      orionATL, the CIA IS publicly acknowledged as guilty of illegal conduct. A cursory search on the internet is living proof. ..ie the Church and Pike committees. However, they didn’t get where they are by them self. After all, Congress wrote the Central Intelligence Act of 1949, which gives the Director the authority to authorize murder with no consequences..period.
      In fact, if you want to read something that will raise the hair on the back of your neck..read this in it’s entirety. ..but be prepared to get nausious..

      http://www.house.gov/legcoun/Comps/CIA49.pdf

      I’m certainly no legal scholar, but given the section of the act that claims..”shall not be court reviewed” pretty well sums up the unconstitutional status of the act. And therein lies the beast. Since no entity on the planet is allowed to challenge the Director of the CIA’s decisions in a court of law, how does the people challenge the Act is unconstitutional? What we have here, in my opinion, is LEGAL IMPERIALISM as defined. …

      http://www.globalresearch.ca/legal-imperialism-and-international-law-legal-foundations-for-war-crimes-debt-collection-and-colonization/5313891

      As to who is really running America now…I believe this pretty well sums it up:

      http://www.globalresearch.ca/cia-caught-spying-on-us-senate/5372807

      I also believe this fight between the Congress and CIA will finally show the world who is boss. But it’s gonna get real ugly before that happens. Regardless, one or the other is going to poke a sleeping wolverine who will then rip their opponents balls off…

      http://sipseystreetirregulars.blogspot.com/2009/08/son-you-dont-poke-wolverine-with-sharp.html

      btw…WE are the wolverine.

      Congress enacted law that cannot be challenged. Not even in the Supreme Court. What this says is..the CIA is an sovereign agency unto itself and answerable to no one, not even the oversight committee. This tells me….it’s time to “dissolve” this agency as it is clearly unconstitutional. Hopefully, the committee will use it’s balls to defund the CIA, instead of getting them ripped off first.

  2. orionATL says:

    where’s the edit button? com’on big dog.

    folks who type as badly as i got to have an edit button.

  3. ArizonaBumblebee says:

    It is long past time for the progressive defenders of this president to wake up and realize that the man they helped to elect in 2008 is NOT one of them. For whatever sinister reasons, he wants to be able to totally control anyone who works for the federal government (and, for that matter, employees of Congress). The Pentagon is currently implementing its Automated Continuous Evaluation System (ACES), which will eventually employ several databases to monitor its personnel 24/7. To counter so-called “insider threats” (i.e. whistleblowers as well as spies) the President has authorized the Insider Threat Program, which also be employing several databases (as well as snitches and internal spies) to monitor its employees. Soon anyone who works for the federal government will be under continuous surveillance. If this has the appearance of being the beginning of a totalitarian state, it is only because it is – and both major parties are in on it.

    • chronicle says:

      quote”If this has the appearance of being the beginning of a totalitarian state, it is only because it is – and both major parties are in on it.”unquote

      Indeed. But something in my gut tells me there is one or more Federal employees, who will tire of 24/7 surveillance and will wake up like a sleeping wolverine. In reality, by setting up this program, the USG has laid the seeds to eat itself from the inside out. Which makes my day.

      However, if current events in Connecticut are any indication, they may not even get a chance to implement their collectivist Totalitarianism. I suspect, given the unconstitutional gun banning laws enacted there last year, and given over 80% of the gun owners officially raised their middle finger to compliance, and given the State police mandate to confiscate these weapons should the populace decide to resist further, I have no doubt in my mind the State’s Great Moment in Stupidity will cause the State to poke a sleeping wolverine to which it will awake and rip their fucking balls off. ..if not disembowel these scumbags. Make no mistake..this battle is coming. And when it does…if won’t remain in just Connecticut. …

      http://sipseystreetirregulars.blogspot.com/2014/03/connecticut-politicans-inch-closer-to.html

      especially now that the Names and Address’s of every Connecticut politician who voted for this law has been published on the internet. And now, they’ll understand the real meaning of…”unintended circumstances” and 4thGen warfare.

      http://sipseystreetirregulars.blogspot.com/2014/02/a-sipsey-street-public-service.html

  4. not_heavenly says:

    Oh that’s just fucking great. tea-turded commenters from alex jones and god-like productions. Guess the limits of libertarianism as a philosophy are making themselves quite apparent at this point, eh? Oops I said a bad word.

  5. GKJames says:

    Sure that’s what the CIA wants. But why are the others playing along? And wouldn’t it be apparent even to US District Court judges that these prosecutions stink to high heaven?

  6. Nell says:

    The word ‘spat’ (trivializing, horse-racey) works against the point of the post: the CIA’s abuse of criminal investigations and prosecutions to cover up torture and associated crimes.

    Please, please stop using it for what’s going on with the Senate Intel Committee staff.

    • Nell says:

      Updating to suggest alternative: ‘struggle’. Although a very unequal one: Senate committee staff facing criminal investigation, & always Damocles sword of clearance hanging over their job prospects.

  7. bevin says:

    New look is very professional etc but hard to read. I suspect that the problem lies in the “leading” or the extent of the gap between the lines of type.
    But maybe that’s just my computer. Good work anyway.

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