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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.

Honorable Military Whistleblower: Why Daniel Davis Is and Bradley Manning Is Not

One of the hottest, and most important, stories of the last week has been that broken by Scott Shane in the New York Times, on February 5th, of Army Lt. Col. Daniel L. Davis’ stunning report on the unmitigated duplicity and disaster that characterizes the American war in Afghanistan. It painted the story of a man, Davis, committed to his country, to his service and to the truth but internally tortured by the futility and waste he saw in Afghanistan, and the deception of the American public and their Congressional representatives by the Pentagon and White House.

And then, late last month, Colonel Davis, 48, began an unusual one-man campaign of military truth-telling. He wrote two reports, one unclassified and the other classified, summarizing his observations on the candor gap with respect to Afghanistan. He briefed four members of Congress and a dozen staff members, spoke with a reporter for The New York Times, sent his reports to the Defense Department’s inspector general — and only then informed his chain of command that he had done so.

Concurrent with Shane’s NYT article, Davis himself published an essay overview of what he knew and saw in the Armed Forces Journal.

The one thing that was not released with either Shane or Davis’ article was the actual Davis report itself, at least the unclassified version thereof. The unclassified Davis report has now been published, in its entire original form, by Michael Hastings in Rolling Stone in The Afghanistan Report the Pentagon Doesn’t Want You to Read.

The report is every bit as detailed, factually supported and damning as the articles by Shane and Davis portrayed. It is a must, but disturbing, read. If the American people care about economic waste and efficacy and morality of their foreign military projection, both the Obama Administration and the Pentagon will be browbeat with the picture and moment of sunlight Daniel Davis has provided. Jim White has penned an excellent discussion of the details of the Davis report.

My instant point here, however, is how Davis conducted himself in bringing his sunlight, and blowing the whistle, on wrongful US governmental and military conduct. Davis appears to have attempted to carefully marshal his evidence, separated the classified from the unclassified, released only unclassified reportage himself and to the press, taken the classified reportage to appropriate members of Congress and the DOD Inspector General, and notified his chain of command. Davis insured that, while the classified information and facts were protected from inappropriate and reckless release, they could not be buried by leveraging his unclassified press publication. In short, Daniel Davis is the epitome of a true military whistleblower, both in fact, and Read more

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.

How Did DOJ Find Jon Kiriakou?

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

  1. On August 19, 2008 Kiriakou gave Journalist A Covert Officer A’s name.
  2. Later the same day, Journalist A gave Covert Officer A’s name to the defense investigator.
  3. On January 19, 2009, the defense team submits a filing including Covert Officer A’s name.

Deuce Martinez

  1. On November 12, 2007, Kiriakou gave Journalist A Deuce Martinez’ personal email address. On May 20, 2008, Kiriakou told Journalist A that Martinez was not trained in torture. On November 17, 2008, Kiriakou told Journalist A some details about how Martinez traveled, presumably to a Black Site.
  2. On April 10, 2008, Journalist A gave a defense team investigator Martinez’ home phone number.
  3. The defense team had pictures taken of Martinez and gave them to detainees as part of a double blind identification effort; the pictures were found in “spring 2009.”

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, Read more

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.