The government is pursuing a “selective” and “vindictive” prosecution against former CIA agent John Kiriakou, according to a defense motion to dismiss charges recently cleared for public release and posted by Secrecy News. Kiriakou was indicted in April for allegedly releasing classified information to journalists that included the identities of a “covert CIA officer” and details on the role of “another CIA employee in classified activities.” The Justice Department charged him with one count of violating the Intelligence Identities Protection Act and three counts of violating the Espionage Act, along with a count for “allegedly lying to the Publications Review Board of the CIA” so he could include classified information in his book.
The motion argues Kiriakou is not being prosecuted for the “acts alleged” in the indictment. Rather, he is being prosecuted because, on December 10, 2007, he “gave an interview to ABC News in which he stated that the United States had engaged in torture of detainees captured in the war on terror. In 2009, Kiriakou further challenged the government policy in favor of torturing terror suspects when he stated that he did not think torture was effective.”
It declares this is why “the government has seized upon the current allegations of improper disclosures to prosecute him, even though numerous other individuals that have communicated the same or similar information have not faced prosecution.” Furthermore:
Prosecutorial decisions are given great deference. Nonetheless, when the government chooses among similarly-situated people and charges only those who have publicly spoken out against the government’s position, the government engages in selective prosecution. When the government chooses to punish an individual based on animus, the government engages in vindictive prosecution. When either of those scenarios occurs, the government has exercised its prosecutorial powers impermissibly and unconstitutionally, and the indictment should be dismissed.
To back up the argument that Kiriakou is being selectively prosecuted, the defense outlines multiple instances where individuals leaked names of covert operatives to the press and connected “particular individuals to allegedly classified programs.” In August 2011, the New Yorker “published an article ["Getting Bin Laden"] about the raid that killed Osama bin Laden.” Writer Nicholas Schmidle “stated that he knew the identities of the Seal Team which executed the operation.” On March 24, 2012, Greg Miller of the Washington Post “published an article profiling the director of the CIA’s Counterterrorist Center ["At CIA, a convert to Islam leads the terrorism hunt"]. The CTC director’s name is not “public knowledge.” Miller could not publish the director’s real name because he works “undercover.” Numerous CIA and Federal Bureau of Invetigation (FBI) sources discussed the CIA, the director (“Roger”) and how he is the “principle architect of the CIA’s drone program.”
On May 3, 2012, CNN’s terrorism correspondent Peter Bergen appeared on “The Daily Show” with Jon Stewart to promote his book, Manhunt: The 10 Year Search for Bin Laden – from 9/11 to Abbottabad. He mentioned high-level sources in the CIA, Defense Department and White House he had interviewed. In the same month, CIA officials leaked details on a CIA underwear bomb plot sting operation in Yemen to the Associated Press while the operation was still technically in progress. And, finally, on June 1, 2012, the New York Times published an article on cyber warfare against Iran by David Sanger ["Obama Order Sped Up Wave of Cyberattacks Against Iran"]. Sources from the White House Situation Room were quoted. While the Justice Department has appointed two attorneys to investigate the leaks from officials on the bomb plot sting op and the cyber warfare against Iran, there are no known investigations into the other instances where sources in the government spoke to reporters and no sources for news reports have been slapped with criminal charges.
Also, the motion outlines why the defense thinks the government would want to prosecute Kiriakou. CIA Director Michael Hayden had “stated that any CIA detention or interrogation would meet the Geneva Conventions’ requirements and not utilize torture.” Kiriakou told the press the CIA had, in fact, utilized torture. This “exacerbated an already contentious debate.” And it made the debate even more contentious in a time of war, when wars in Iraq and Afghanistan were ongoing.
The defense concludes the reason Kiriakou is being prosecuted while others are not is because spoke to the media “in a manner offensive to the government. While the previously mentioned examples produced press favorable to the United States government, Kiriakou’s remarks to the press did not:
The only difference between those who have escaped prosecution and John Kiriakou is that the others leaked classified information with the tacit support of the United States government, or revealed information the government considered favorable. Those leaks paint the United States in a manner that glorifies the exploits of its agents. They focus the public on the heroes who keep this country safe. In order to tell those positive stories, the government appears willing to allow sources to reveal classified information, including the names of covert operatives. But John Kiriakou told a less flattering story. He went on national television and told the world that the United States used “enhanced interrogation” techniques that in his opinion, waterboarding was torture and that America was better than that. Later, in 2009, he published a memoir where he stated that waterboarding was ineffective. This is the type of story that the government wanted to make sure its agents never revealed. The United States is prosecuting Mr. Kiriakou because he expressed views which are not popular with the government. That it may not do.
This selective and vindictive prosecution has had a profound impact on Kiriakou. Similar to the impact National Security Agency whistleblower Thomas Drake experienced when the Obama administration pushed a bogus prosecution against him, according to the Government Accountability Project’s Jesselyn Radack, Kiriakou is currently in the midst what have already been “years of hell.” He set up a legal defense fund for his defense. The “fund has raised a pittance of the estimated $1 million that his defense will probably cost.” Kiriakou, like Drake, is the father of five children. They’ve experienced hardship, as Kiriakou has lost his house, career and can expect to never work in the intelligence community ever again.
Perhaps, if Kiriakou had been more like the former head of the Central Intelligence Agency’s (CIA) Counterterrorism Center and its former Deputy Director of Operations, Jose Rodriguez, and written a book like Hard Measures and gone on CBS’s “60 Minutes” to celebrate torture techniques that were used by the CIA, he would not be in this situation. Maybe if he had sadistically explained each of the techniques without batting an eye and sociopathically downplayed concerns about those techniques, he would not be without his home and career today.
As I wrote in a previous post on the record number of leaks prosecutions by the Obama administration, what makes selective prosecutions of people like Kiriakou incredibly appalling is the fact that nobody from the Bush administration has been put on trial for authorizing or legalizing methods of torture against prisoners in the “war on terror,” which is a war crime. No heads of banks on Wall Street, who were involved in perpetrating the 2008 economic collapse, have been put on trial. No officials involved in the warrantless wiretapping of Americans under Bush have been put on trial (they were granted retroactive immunity by Congress). The Justice Department has, instead, botched multiple prosecutions against individuals who allegedly committed bribery or other financial crimes and put its resources into investigating and prosecuting baseball pitcher Roger Clemens, former Democratic presidential candidate John Edwards, anyone involved in the selling and marketing of medical marijuana, WikiLeaks, Julian Assange, and anyone else connected to the media organization and whistleblowers.
There are instances where a leaks prosecution should be pursued. It is tough to see any reason why it would be excusable for a CIA agent to share details with the press on a covert sting operation involving an informant before that informant had safely completed the mission. That seems like a blatant crime. At the same time, intelligence employees should have free speech rights like other government employees to talk about government policies. If the Department of Agriculture can talk to reporters about farm subsidies, intelligence employees like Kiriakou should be able to openly discuss policies in the “war on terrorism” so long as they aren’t sharing classified information. The problem is the government has adopted a standard for censorship that involves preventing any conversation on any piece of information related to national security methods or techniques that could be deemed “sensitive,” especially when discussion invites scrutiny or embarrassment.
The result is government employees, who actually do believe in the agencies and institutions they work for (whether crimes or corruption is occurring), are forced out of their jobs. People who care about the effect and efficiency of policies and think they have a right to express concern and be listened to are condemned to a future where they may never be able to serve government again. That should be troubling to all American citizens because of the chilling effect that has on people working in agencies of government. Obviously, a culture of complacency, complicity and indifference to corruption develops. Refusals to address corruption because it could leak to the press and start a scandal occur. And, most importantly, people become tight-lipped and do not want to talk to reporters because, if the reporter isn’t a veteran journalist like David Sanger or has a wide audience like “60 Minutes,” they may lose opportunities to move up the ranks in government and even be fired.