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John Kiriakou interviewed by Truthout's Jason Leopold/Flickr Photo by Truthout.org
Ex-CIA agent John Kiriakou, who blew the whistle on torture authorized by the administration of President George W. Bush, is accused of leaking classified information to journalists on the identities of a “covert CIA officer” and details on the other role of “another CIA employee in classified activities.” He was indicted in April on charges that included one count of violating the Intelligence Identities Protection Act, three counts of violating the Espionage Act and one count for “allegedly lying to the Publications Review Board of the CIA” so he could include classified information in his book.
In a latest development in the case, Kiriakou’s defense is pushing for classified information on the CIA’s capture of alleged al Qaeda operative, Abu Zubaydah. It also is seeking testimony from journalists on the “leaks” and “emails,” which detail the “CIA’s unsuccessful requests to stop the New York Times from publishing an article that named one of the exposed operatives,” according to the Associated Press.
The defense filed a motion on October 9 indicating it would like to depose three journalists. It notes, “The disclosures alleged in Counts 1 through 4 of the lndictment relate to Mr. Kiriakou’s purported discussions with Journalist A and Journalist B or Researcher 1, regarding the identity and/or association of two individuals–Covert Officer A and Officer B to the Rendition, Detention, and Interrogation Program (the “RDI Program”).”
Also, the motion makes the factual argument that “no record of interviews or any other statements to the government by Journalist A, Journalist B or Researcher 1” have been produced for the defense nor has the government provided any “context for the overall scheme or process,” which Kiriakou “allegedly disclosed” information. Particularly, there is no information in discovery evidence that has been provided to the defense on whether the journalists had “independent sources for the classified information.”
The motion shows that the defense wanted to subpoena three journalists. Who are they?
Jesselyn Radack of the Government Accountability Project has written about the case. On April 9 of this year, in a guest post for then-Salon columnist Glenn Greenwald, she wrote Matthew Cole of ABC News is “Journalist A” and “Journalist B” is Scott Shane of the New York Times.
On October 10, Radack sent a message on Twitter indicating two journalists had been subpoenaed.
In a message that followed, she noted these two journalists are referred to in the indictment against Kiriakou. The government, however, has not subpoenaed these journalists. So, she suggested Kiriakou was backed into a corner, where he would appear to be violating press freedom by subpoenaing them for his defense:
Marcy Wheeler of Emptywheel.net reminded Radack that Shane had “two dozen” sources for his article on Kiriakou. This prompted Radack to respond with a message that stated Shane was not one of the journalists subpoenaed:
On April 6, Radack wrote, “Two of the Espionage Act charges stem from Kiriakou’s alleged communications with New York Times reporter Scott Shane, for a story he wrote in 2008 and for which – Wheeler reports – Shane had “around 23 other sources (including former CIA Executive Director Buzzy Krongard).” Yet again, Kiriakou – who blew the whistle on waterboarding – is the only one to be charged, and 3 1/2 years after the article was published as a result of an investigation having nothing to do with the Shane article.”
Radack posted a cryptic tweet after this exchange:
Who is Julie Tate? Her name has not surfaced yet in coverage of Kiriakou’s case.
On January 23, 2012, Tate was listed as a “staff writer” for Greg Miller’s story on Kiriakou being charged. She contributed to a story on the International Committee on the Red Cross concluding in a “secret report that the Bush administration’s treatment of al Qaeda captives had ‘constituted torture.’” She helped research an article on the waterboarding and “rough interrogation” (torture) of Abu Zubaydah, which included quotes from Kiriakou. She contributed to two stories on revelations related to CIA prisons in 2007.
Tate supplied research to all of these stories. She was on the the CIA torture beat when the leak allegedly happened. Her Twitter account says she is a researcher for the Washington Post. It is likely and possible that she is Researcher 1.
Additionally, Radack highlighted Cole in an update to her guest post at Salon:
“Journalist A” in the Kiriakou indictment, Matthew Cole (who allegedly received illegal leaks from Kiriakou), is turning out to be a mercurial character. As Politico’s Josh Gerstein reported, Cole “worked until earlier this year as a producer for ABC News’s investigative unit … Cole’s alleged role also raises questions about whether Cole, whose website indicates he was working on a book at the time, was straddling the line between traditional journalism and information-gathering for lawyers representing Guantánamo detainees. … Public court papers don’t offer much in the way of context for Cole’s interaction with the defense investigator.” Nor does Cole’s website, which was taken down after Gerstein’s article on Monday but can be seen here, elucidate the matter.
Cole’s removed website also says that Cole is “currently under contract to write a book for Simon & Schuster,” but as Jason Leopold—lead investigative reporter for Truthout.org – told me, Cole’s Simon & Schuster contract was cancelled. [emphasis not added]
Cole, according to Radack’s Salon report, allegedly received illegal leaks.
What about Journalist “B”? Radack claims it is not Shane. So, who could this person be? Or, perhaps, Radack was confused?
The tweets from Radack suggest only two journalists have been subpoenaed, even though the motion for depositions includes a request for three witnesses. Is it possible that Radack thought Journalist B was now Tate? Was she unaware that the defense was referring to a Researcher 1?
These are the questions that members of the press covering Kiriakou’s case should probably be asking. There are three journalists at the center of this leak prosecution. (One of them, Cole, seems like someone, who deserves particular scrutiny. How has he helped the government pursue Kiriakou?)
All three of the witnesses are likely to claim “reporter’s privilege.” If that happens, the government will be arguing in one leaks case (US v. Sterling) that reporters do not have the privilege to protect themselves from being forced to testify and in another (US v. Kiriakou) that reporters do have a privilege to protect themselves from providing testimony.
By subpoenaing journalists for their defense, it seems like Kiriakou and his defense have a complete disregard for press freedom. Steven Aftergood of Secrecy News has described the request for depositions “a new challenge to press independence.” However, the flipside is the government has put Kiriakou and his defense in this situation.
The government makes references to these three journalists in their indictment against Kiriakou, but they have refused to seek testimony from the journalists. This puts Kiriakou and his defense in a position where they can either request depositions and appear to be attacking freedom of the press or they can choose to not seek any more information on the journalists and the information, which the government is believed to be using for prosecution.
If the prosecution is completely bogus and about to collapse, the public relations disaster that could occur as a result of these journalist subpoenas now gives the government the leverage to push Kiriakou to accept a plea deal. Radack has written, “For these heavy-handed, oh-so-serious, America-harming, foreign nation-benefitting Espionage Act charges, the government [is] willing to let Kiriakou plead guilty to a single felony with no jail time.”
The government just wants to demonstrate and prove that it is not waging a war on whistleblowers and has ample legal justification for prosecuting people like Kiriakou, even if they cause no harm whatsoever to national security.
It is similar to what happened to NSA whistleblower Thomas Drake. In that case, the government referenced newspaper articles in the indictment but sought to preclude Drake and his defense from discussing the articles in open court. The judge was completely opposed to subpoenaing any of the authors of those articles to testify in court. Though the judge rejected the prosecution’s motion, it demonstrated the US government is willing to manipulate press coverage or involvement in alleged acts and play legal games to give it an edge in prosecuting those accused of leaks. And, Drake pled guilty to misdemeanor because the government’s case completely fell apart, which is what could happen with the government’s case against Kiriakou if the defense is able to get the information it seeks.
15 Comments
Very Interesting post, Kevin you are becoming the George Smiley of FDL since this all seems like a John LeCarre novel. Every time you write “the government” I get a picture of the old Kremlin in my head not the White House.
I was going to say, what “jury e-mails”? But I followed the link and the original says show a jury e-mails:
Show a jury. (In America. Do we do that anymore?)
Back before the EMPIRE we had trial by jury and due process but it was all very inefficient and hard to control so we passed the NDAA. /s
Fixed that.
Funny we would have a story about the White House “whistleblower” directive right here at FDL on the same day as this story. I do not think anybody should be exposibng our operatives. But anything else is fair game. Of course, my opinion may not be shared by “the government”. Especially the government mentioned in BSb #1 above.
I’ve always wondered how the Germans and the Japanese allowed their governmets go get so out of control in WWII. I’m beginning to have an appreciation for their dilemma. FISA, NDAA, NSA…….
Whether Kiriakou revealed operatives remains to be proven.
BTW, thanks Kevin.
This whole thing is getting epidemic.
We know Dick Cheney revealed an operative and what happened to him? I was out of town for six years and must have missed the trial./s
|:-)
yeah, I would like to hear Plame and Wilson opinion on this.
It’s the same as bankers, same as oil companies destroying habitat and killing people, same as coal mining companies killing their employees, same everything else, it’s not what you do, it’s who you are, that determines your fate in these things.
I just left a massive comment in the Citizens United diary where I included the fact that the first Supreme Court sat with and deferred its decision to a jury. I think something went wrong long before the NDAA, and I’m wondering if it doesn’t go back to the fourth Chief Justice, John Marshall, a Federalist: http://billmoyers.com/2012/09/13/essay-the-one-percent-court/
Because who can check and balance the Supreme Court anymore?
You have a good point but don’t tell that to the Cherokee Nation who won a SC case against the U.S. and then President Jackson famously said “The Supreme Court has made it’s ruling now let them enforce it” and the “Trail of Tears” followed not soon after. And that was @1826.
Oh, dude! I so had that in the “spaghetti” I deleted in the massive comment! Then I headed on to FDR threatening to expand the number of justices. (He didn’t need to do it, the court came around to his way of thinking.) And of course when the Supreme Court gets it wrong, like in Dred Scott, we can always have a Civil War to get it right.
I don’t think the checks and balances are working out the way they were intended. And I think juries are key, more key than we’d ever think of. You only think of checks and balances as between the three branches, but maybe “we the people” self-governors were supposed to be a check and balance to each of them. Like someone said, when you vote in an election, you’re voting for a hypothetical – a campaign promise, but when you vote on a jury, that’s the only time you’re casting a vote about a real thing, a nonhypothetical. So now juries are dumbed down and passed over (risked up) in favor of plea bargains, funny how that worked out:
The mechanics of injustice – lesson I won’t forget
Anyway, they’re all broken branches now, Congress, the Executive, the Judicial. If juries were restored, would the broken branches heal and things fall in place, naturally? You wouldn’t need millions of people to turn a bad government decision, it’d take any 12, any time, all the time. Case by case, bunches of little decisions, perpetual maintenance of citizens and law, instead of godlike pronouncements from on high. People would think of themselves and their government differently. The relationship, citizenship would be changed. Just think, the return of conscience and reason…
Long time since that was true I think. It fascinates me to think about it, if rock-scissors-paper were restored and the cycle flowed again instead of stopping at the Supreme Court.
Remember War Games? (“Let’s play Global Thermonuclear War!”) “The only winning move is not to play.” – ?
If I’m right about what the Constitution intended, the only losing rock-scissors-paper move is not to play. If the flow stops, it’s failed. Which it has.
let’s talk about illusions for a moment.
major illusion: that the media operates independently of the usg and its intell services.
many forget how the usg managed the news during ww1, 2, korean invasion. the publix knew virtually nothing other than propaganda.
the vietnam invasion was unique. for reasons that i can only consider the hubris of how the usg was going to reveal to the amerikan electorate how adroit its military was in subjugating a country of yellow people, that scam failed. the usg and its military was revealed to be incompetent and comprised of war criminals.
the usg said those historical realities would never be allowed to be revealed to the amerikan electorate again.
and they pursued that as if justice lewis powell was running the program. first, virtually illegal concentrations of media power were allowed, in contravention of anti-trust stare decisis. this allowed for a better manipulation of the citizenry’s access to accurate information: the media had been empowered to be state-managed news deliverers. there was a trade. the usg[doj] advised the nyt, wapo, others that they could continue to consolidate in violation of anti-trust statutes, but in exchange, they would agree to become agents of the secret state.
this was fortified by operation mongoose. this was the op where the intell services instructed, groomed all of the presenters, reporters hired by the media.in reality, the media became staffed by spooks.
so, the outcome has been what we have been experiencing: false news.
the record of this false news is overwhelming. from the nyt and its reporting on the events of 11/09/01, to the invasion of iraq, afghanistan. and recently, libya, syria.
it is as blair[orwell] prophesied: the triumph of newspeak.
and we are all its victims. and i would submit that this will not be a dying precept in the activities of the secret state.
as ts wrote: this is the way the world ends. not with a bang. but a whimper.