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.
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.
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.
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.
Remember how Dick Cheny outed Valerie Plame and in the process hurt our efforts to prevent Iran from getting nukes?
And since then, Iran has just been working away, allegedly, to get nukes?
Well, at a time when much of the national security establishment is drumming up war against Iran, they’ve done it again.
A senior CIA analyst resigned Tuesday amid accounts that she had been pressured to step down after her husband — a former agency employee — was charged with leaking classified information to the press.
Heather Kiriakou had served as a top analyst on some of the most sensitive subjects that the agency tracks, including leadership developments in Iran. Her husband, John, faces a maximum of 30 years in prison after being accused of disclosing details about secret CIA operations as well as the identities of undercover officers.
Two sources in direct contact with the Kiriakous said that Heather had submitted her resignation under pressure from superiors at the CIA.
Or maybe that’s the whole point.
As I laid out in this post, the complaint in the Jon Kiriakou case shows that the Patrick Fitzgerald-led investigative team could have found Kiriakou as the ultimate source for some Gitmo detainee lawyers’ information on two people associated with the torture program without accessing journalists’ communications directly (though the FBI has the contents two of Kiriakou’s email accounts, which likely contain a great deal of communication with journalists).
The sole possible exceptions are two emails between Journalist A and the Gitmo detainee lawyers’ investigator:
At 11:31 a.m. on August 19, 2008, approximately two hours after KIRIAKOU disclosed Covert Officer A’s last name to Journalist A, Journalist A sent an email to the defense investigator referenced above that contained Covert Officer
A’s full name in the subject line. The email further stated: “His name is [first and last name of Covert Officer A].” At 1:35 p.m., Journalist A sent a final email to the defense investigator in which he stated: “my guy came through with his memory.” Neither Journalist A nor any other journalist to my knowledge has published the name of Covert Officer A.
For example, in an email dated April 10, 2008, Journalist A provided the defense investigator with Officer B’s home phone number.
The implication in the complaint is that the FBI got these emails from the investigator. But unlike Kiriakou’s emails, which it explains were, “recovered from search warrants served on two email accounts associated” with Kiriakou, the complaint doesn’t explain how and from whom the FBI obtained the emails between Journalist A and the defense team investigator.
Nevertheless, the complaint provides fairly innocuous possible explanations for how the FBI got a whole lot of emails involving journalists for this investigation. So maybe we have nothing to worry about.
Or maybe we do. It is also possible the government collected all communications within two degrees of separation from the defense investigator–thereby exposing a wide range of journalists’ sources–and we’d never know it.
That’s true for two reasons.
First, because this investigation is the first known leak investigation that has extended into the period–post October 15, 2011–during which the new Domestic Investigation and Operations Guide was in effect. The new DIOG made it a lot easier to use National Security Letters to get the contact information of journalists in investigations, like this one, with a national security nexus.
[T]he new DIOG seems to make it a lot easier to get news media contact records in national security investigations. A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictionsrequiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.
Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]
So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.
As I’ve noted, former CIA officer Jon Kiriakou was charged yesterday with leaking classified material–including one covert officer’s identity; the alleged leaks involve three different journalists. Since the complaint focuses on Kiriakou it’s easy to forget that the investigation didn’t start there: rather–it started with a filing submitted in a detainee defense case (almost certainly the 9/11 detainees) and photos found in some detainees’ cells, and went through at least one journalist (called Journalist A) along the way. So how did Patrick Fitzgerald’s team find Kiriakou? Did Fitzgerald obtain journalists’ contacts again?
In the case of Kiriakou, I don’t think so. At least not directly.
The complaint alleges there were two steps from Jon Kiriakou to the filing and the photographs.
Covert Officer A
Note, the evidence in the complaint that Kiriakou was Journalist A’s source on Martinez is weaker than for Covert Officer A’s identity or that he was Scott Shane’s source for Martinez’ phone number. The complaint shows that Journalist A provided the phone number to the defense investigator, but does not show compellingly that Journalist A’s source of Martinez’ phone number was Kiriakou. That weak spot in their case is one piece of evidence that Fitzgerald’s team has neither interviewed Journalist A nor obtained his or her phone records to rule out other possible sources.
Now, remember, by the time DOJ started investigating this on March 19, 2009 (when the target was detainee lawyers, not their sources), and by the time Fitzgerald started investigating this on March 8, 2010, Scott Shane (who is described as Journalist B in the complaint) had already published this June 22, 2008 story, describing Deuce Martinez’ role in catching Abu Zubaydah and interrogating Khalid Sheikh Mohammed and others. It was sourced to,
The two dozen current and former American and foreign intelligence officials interviewed for this article offered a tantalizing but incomplete description of the C.I.A. detention program. [my emphasis]
In addition to Buzzy Krongard, Jon Kiriakou is the only on the record source. The story reveals that Kiriakou spoke with Shane in December 2007–the same month he spoke about waterboarding with ABC. But it also suggests Shane spoke with him after that, when he learned Kiriakou had been “cautioned … not to discuss classified matters.”
John C. Kiriakou, a former C.I.A. counterterrorism officer who was the first to question Abu Zubaydah, expressed such conflicted views when he spoke publicly to ABC News and other news organizations late last year. In a December interview with The Times, before being cautioned by the C.I.A. not to discuss classified matters, Continue reading
In his interview with Jason Leopold in May 2010, Jon Kiriakou explained how his book got approved by the CIA Publication Review Board. He describes someone who–given the mention of the transition team and the seniority at CIA–must be John Brennan, advising him to wait to resubmit his book until after the Obama Administration cleaned out the CIA.
Kiriakou: I called a very senior CIA officer, former CIA officer, who was very quietly supportive of me.
Leopold: Can you identify that person?
Kiriakou: I can’t, unfortunately. But he said, ‘I’m on the Obama transition team. We’re going to win this election next week. And we’re going to be making wholesale changes over there. Everybody’s gonna go. So make your changes and don’t resubmit until I tell you to.’ A week later Obama wins. About six weeks pass, Director Hayden resigns. Several people a layer or two, three layers beneath him also resign, My friend calls me back and says ‘resubmit it.’ This is immediately after Panetta is named Director. I resubmitted it. A week later, I got a one page letter saying ‘the book is cleared in its entirety.’
So not only was this guy who appears identical to John Brennan “quietly supportive
of Kiriakou,” but this John Brennan lookalike also played a key role in getting Kiriakou’s book approved.
Which is mighty interesting, because John Brennan was also centrally involved in this investigation, particularly in the hiring of Pat Fitzgerald in March 2010 to respond to CIA’s demand for IIPA charges.
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 resulted in the meeting and ultimately to Mr. Vieira withdrawing from the probe.
Now, I’m not suggesting that Kiriakou was targeted just to get back at John Brennan.
But I am saying that it is–at the very least–ironic that a world class leak hypocrite would be supportive of the guy who got nabbed in this investigation.
On the one hand, after all, Brennan had an antagonistic role with at least one of the whistleblowers the Obama Administration has targeted.
Yet, at the same time, he’s a noted leaker himself, such as for the breathless account of the Osama bin Laden targeting, and, more recently, providing on the record details that the Administration had declared a state secret.
The CIA got their IIPA charge. I’m not sure whether Kiriakou is the guy everyone thought they’d get.
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. Continue reading
It would be too simple to say that Jon Kiriakou was a whistle-blower. His initial leaks to journalists seemed like sanctioned leaks to minimize the effect torture had.
But whatever role he played, DOJ just charged him for leaking information–almost certainly about the Abu Zubaydah torture–to journalists.
A former CIA officer, John Kiriakou, was charged today with repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities, Justice Department officials announced.
The charges result from an investigation that was triggered by a classified defense filing in January 2009, which contained classified information the defense had not been given through official government channels, and, in part, by the discovery in the spring of 2009 of photographs of certain government employees and contractors in the materials of high-value detainees at Guantanamo Bay, Cuba. The investigation revealed that on multiple occasions, one of the journalists to whom Kiriakou is alleged to have illegally disclosed classified information, in turn, disclosed that information to a defense team investigator, and that this information was reflected in the classified defense filing and enabled the defense team to take or obtain surveillance photographs of government personnel. There are no allegations of criminal activity by any members of the defense team for the detainees.
I’ll have more shortly. But one thing to remember is that Lanny Breuer represented Kiriakou in the two years leading up to 2009. And Patrick Fitzgerald is the prosecutor on this case.
Update: Here’s the NYT story cited in the press release. It’s a Scott Shane article on Deuce Martinez.
Update: Here’s one detail Kiriakou is alleged to have leaked (the quote is from the Shane story).
Armed with Abu Zubaydah’s cellphone number, eavesdropping specialists deployed what some called the “magic box,” an electronic scanner that could track any switched-on mobile phone and give its approximate location. But Abu Zubaydah was careful about security: he turned his phone on only briefly to collect messages, not long enough for his trackers to get a fix on his whereabouts. [my emphasis]
First of all, this information was readily available–they will have an interesting time proving this was classified. But I find it particularly ironic given the Jones decision that came down today.
Update: I’ve corrected the title and text to indicate that Kiriakou was charged, but not yet indicted.
I want to make one more point about the interview Jason Leopold did with Jon Kiriakou last week. Jason asks Kiriakou about Dan Coleman’s judgment that Abu Zubaydah’s diaries reveal him to be mentally ill. Kiriakou agrees with Coleman that the diaries were written in multiple voices, but dismisses that by saying they were a creative outlet. (my transcription, starting around 24:00)
Those weren’t diaries. … They were journals and doodle books. He would write these letters to himself. They weren’t really letters to himself. It was like a work of fiction. It was just something to relieve some stress and to be creative. Now if you read this as a diary, sure you’re gonna say the guy’s schizophrenic, he has split personalities, he’s writing letters to himself. But they weren’t diaries.
[Jason asks whether Suskind's description of the diary having three different voices is correct]
No, completely true. They were written, like I say, to himself, each personality to the other. But it was a creative outlet. It wasn’t, they weren’t the ramblings of a lunatic. It wasn’t some insane guy that couldn’t control insanve voices in his head and had to get it all down on paper. It was a creative outlet, nothing more.
For someone critical of the CIA’s waterboarding but still needing to rationalize his treatment, the claim the diaries are fictional offers a nice explanation for what–Kiriakou confirms–are multiple voices in the diary.
But that introduces a problem. As the government stated repeatedly in a filing last year, they base most of their case for holding Abu Zubaydah on his diaries.
The Government filed a factual return and supporting material in this case on April 3, 2009. The Government’s factual return included six volumes of diaries written by [Zubaydah] before his capture, in which [Zubaydah] recounts detailed information about his activities and plans. It also included a propaganda video recorded by Petitioner before his capture in which Petitioner appears on camera expressing his solidarity with Usama Bin Ladin and al-Qaida. The factual return does not rely on any statements made by Petitioner after his capture.
Additional searches also would not be likely to produce significant additional information that would demonstrate that Petitioner’s detention is unlawful, especially given that a large part ofthe Government’s case for detaining Petitioner is drawn from diaries and a propaganda video that [redacted].
Jason Leopold has a long article and videotape of an interview with Jon Kiriakou that you should check out in full. I’ll discuss their conversation about Abu Zubaydah’s torture (and, more interestingly, Kiriakou’s knowledge about who Abu Zubaydah is) later. But I wanted to look more closely at Kiriakou’s description of a June 10, 2003 meeting at which (Kiriakou says) Scooter Libby made it clear that he knew of Plame’s identity.
Kiriakou said he was the “note taker” at this meeting, which took place on June 10, 2003, when I. Lewis “Scooter” Libby, former Vice President Dick Cheney’s chief of staff, “entered the room furious, putting on a big show, arms flailing around, swearing and demanding to know why nobody at the CIA told him that Valerie Plame was married to Joe Wilson.”
Kiriakou said it was clear to him that when Libby “entered the room” on June 10, 2003, he had already known that Plame was an undercover operative.
Now, it always pays to approach Kiriakou’s statements with some skepticism. And his description certainly doesn’t accord with what Grenier testified to at the Libby trial. But for the moment, let’s look at what Kiriakou’s description would mean for the chronology of the week of June 8, 2003.
After a break of several weeks after Nicholas Kristof first reported Joe Wilson’s allegations, the allegations returned again on June 8, 2003, when George Stephanopolous asked Condi Rice about the allegations. Apparently first thing on the following day, June 9, 2003, President Bush expressed to Libby in some way his concern about the allegations. And that seems to have been what set OVP into overdrive trying to learn about the source of the allegations. Later that same afternoon, John Hannah had already completed a briefing for Cheney on the issue.
According to Kiriakou’s story, Libby had his furious outburst on June 10. That would probably mean it happened at the 12:45 NSC DC [Deputies Committee] meeting, four hours before Kiriakou wrote his email requesting more information. Though note, the content of the Kiriakou email we have–which asks for very specific information for John McLaughlin in anticipation of a meeting with Cheney the following day and doesn’t mention the meeting itself–doesn’t match the description he gave Jason:
After Libby’s outburst, Kiriakou said he “went back to headquarters and I wrote an email to all of the executive assistants of all the top leaders in the agency saying, this meeting took place, Libby is furious, we believe that he was conveying a message from the vice president. I wanted to know when did we know that Valerie was married to Joe Wilson, sent it around, nobody ever responded to my email.”
That says, if Kiriakou’s narrative is correct, Libby probably learned of the tie between Plame and Wilson between June 9 and June 10, if not earlier. Which might explain why the date on Libby’s note record learning of Plame’s tie to Wilson appears to be written over. One possibility, for example, is that the note originally read June 9, not June 12.
This is where Kiriakou’s story begins to conflict with Robert Grenier’s and Marc Grossman’s. Marc Grossman testified he told Libby, probably at a DC meeting on June 11 or 12, that Wilson’s wife worked at the CIA (based on the INR memo). And Grenier testified that Libby asked him for information on a phone call on June 11, at which point, Grenier claimed, he “had never heard of [Wilson's trip] before.” Both claims would be false if Libby had blown up in the June 10 meeting.
Now, both Grossman and Grenier’s testimony is problematic on a number of other levels, so we can’t use their testimony to dismiss Kiriakou’s story out of hand.
I believe Jon Kiriakou is still engaging in disinformation, so while I suppose I’ll read his book, I won’t accept anything in it without corroboration.
Take this weird tidbit in his appearance on Tweety (just after 2:05). The statement is false on its face. But it does report an underlying truth.
We didn’t know that he’d been waterboarded 83 times. Last year the CIA Inspector General’s Report came out from 2004, heavily redacted, but it still confirmed that, ah, Abu Zubaydah had been waterboarded before the CIA actually received written permission to do it. So my view now, in retrospect, is that he had been waterboarded 83 times, but the people in the field actually carrying out the waterboarding did not report it. So those of us at headquarters, seeing the one report that finally did come in, believed he had been waterboarded once, and he had cracked.
See, that’s not what the CIA IG Report says–certainly not the unredacted section. In fact, the CIA IG Report implies that all the waterboarding occurred in August 2002, so after the Bybee Memo was signed.
Interrogators applied the waterboard to Abu Zubaydah at least 83 times during August 2002.
So if waterboarding happened before the Bybee Two memo was signed, it was not entered into the log books (nor was it captured on the 77 torture tapes still functional by the time the IG review them) the IG based this claim on. Or, the IG Report doesn’t mention it along with the other unredacted discussions of waterboarding. Or, the IG is lying about the timing of these 83 waterboardings.
And Kiriakou’s statement makes no sense, anyway, because if those 83 waterboardings took place in August but the IG Report admitted to waterboarding before the Bybee Two memo was signed, then the single waterboarding (the one that “cracked him”) would have been the one that happened before August.
That said, we do know Zubaydah was tortured before the Bybee Memos got signed–we’re just unclear on what happened (that is, how much torture happened), when.
All this confusion may simply stem from Kiriakou’s own attempt to excuse his own disinformation about waterboarding in the first place. Or he may well be confused himself, still reeling from cognitive dissonance of discovering the truth behind the torture regime. Or perhaps he is revealing something that is not otherwise documented in unredacted documents.
In any case, between Kiriakou and Thiessen and others spinning wildly, we’ll continue to hear details that don’t match the known details of the torture program.