Reporter for the New York Times, Scott Shane, wrote a feature story on the case of former CIA agent John Kiriakou, who is the first from the agency to face jail time for a classified leak. He is to be sentenced to 30 months of jail on January 25.
Kiriakou pled guilty to the charge of violating the Intelligence Identities Protection Act (IIPA) by revealing the name of an undercover officer on October 23 in a federal court in Alexandria, Virginia. He faced the potential of going to jail for more than a decade and did not want to be separated from his wife and five children for that long.
The chain of events that led to Kiriakou becoming a target of prosecution is outlined in Shane’s story.
In 2009, officials discovered “defense lawyers for detainees at Guantánamo Bay, Cuba, had obtained names and photographs of CIA interrogators and other counterterrorism officers, including some who were still under cover.” Lawyers from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers called themselves the John Adams Project and engaged in a joint effort to help defense lawyers call CIA interrogators as witnesses during military commission proceedings at Guantanamo. Photos were shown to detainees to see if they could identify their torturers and then those individuals could be called to provide testimony.
The CIA and Justice Department were afraid. They opened an investigation into the photographs and found John Sifton, a human rights advocate, was helping the Project put together a “dossier of photographs and names of CIA officers.” Sifton was talking to a journalist over email named Matthew Cole, who was a “freelancer” working on a book on a “CIA rendition case in Italy” (that never was published).
The FBI obtained search warrants and investigated Kiriakou’s email account. In August 2008, Cole “asked Mr. Kiriakou if he knew the name of a covert officer who had a supervisory role in the rendition program, which involved capturing terrorism suspects and delivering them to prisons in other countries.” He did not know the name at first but later emailed Cole with it saying, “It came to me last night,” the documents show.”
Kiriakou did not think the agent was still undercover. He thought he had retired.
According to Shane, the FBI called him to their Washington office to ”help with a case” about a year ago. He was not told he was under investigation and they questioned him repeatedly about the name. And he realized later that he had made a mistake. He should never have talked to the FBI.
The Name of the Covert Officer
The name of this individual does not appear in Shane’s story, but he does write, “The officer’s name did not become public in the four years after Mr. Kiriakou sent it to Mr. Cole. It appeared on a whistleblowing website for the first time last October; the source was not clear.”
In October, I reported the “covert CIA officer” referred to in the indictment as Official A was “responsible for ensuring the execution” of the worldwide Retention, Detention and Interrogation (RDI) program.” He had been a kidnapper.
The covert officer’s name appeared in a posting on Cryptocomb.org a day later:
…The CIA officer listed as “Officer A” in the John Kiriakou complaint has been revealed to be Thomas Donahue Fletcher. Born in 1953. Fletcher is currently a resident of Vienna, VA. Further – source states journalists have known identity of this person prior to August 2008, when Kiriakou allegedly confirmed the identity in an email to Matthew Cole, formerly of ABC News. . . . Thomas Donahue Fletcher was the chief of the Headquarters Based Rendition Group and was personally responsible for the rendition of Abu Zubaydah (as well as other high-value detainees) to the CIA black site in Thailand and witnessed and played a role in Zubaydah’s torture…
When one considers the officer’s background, the prosecution seems much more unprincipled. No person in government has been held accountable for being involved in rendition (or torture). Congress has been largely apathetic and disinterested in engaging in oversight by investigating officials responsible for human rights abuses. And the government has pushed the Guantanamo military commission to prevent detainees on trial from talking about their torture or abuse publicly in court without being censored to protect “classified” or “sensitive” information.
Former Employees Talk to Journalists All the Time
Multiple people in the comments thread of Shane’s story have expressed disgust with Kiriakou for releasing an “undercover” agent’s name. One commenter reacted, “Mr. Kiriakou broke the rules and violated his oath and now must accept the consequences in spite of what appears to be his record of public service.” Another said, “He will be jailed because he risked someone’s safety to feed his ego.” One more wrote, “I find it hard to feel sorry for Mr. Kiriakou’s being sad about being separated from his family. Surely he should have thought about that when he was revealing the undercover agent’s name?”
A self-proclaimed liberal concluded, “I will never be able to understand giving the name of an agent…whether retired or not. That is not anyone’s right. And anyone who does it has clearly committed a crime. Yeah, he seems like a nice guy. Big deal. I won’t even begin to try to decipher his reasons.”
As a sampling, the comments seem pretty representative of common views among Americans. Undercover agents (or even known agents) are working on matters of national security and should not be named, as that could put them at risk.
Of course, Fletcher was not undercover. He was a professional kidnapper, who Kiriakou mentioned and described to a journalist. Therefore, what people expressing disgust with Kiriakou are suggesting is former intelligence employees should not be able to engage in free speech and discuss what they did in their job after they leave an intelligence agency.
Former government employees are key sources of information especially for journalists covering national security issues. As Shane, who had a role in the case, explains, nothing about his communications with Kiriakou was “unusual for a reporter covering intelligence agencies, though he was certainly on the candid end of the spectrum of former CIA officers.” Former employees talk for “self-aggrandizement,” to “promote a personal or political agenda,” or “because they feel Americans have a right to know, within limits, what the government is doing with their money and in their name.”
Politicians, heads of intelligence agencies and officials in the Obama administration recognize this reality, which is why the Senate Select Committee on Intelligence led by Sen. Dianne Feinstein proposed anti-leaks proposals that would have specifically imposed restrictions on former employees wanting to provide commentary. Measures targeting former employees, however, failed to pass. (Sen. Ron Wyden put a public hold on the intelligence authorization bill, which included the proposed measures, and they were subsequently dropped.)
Kiriakou is Going to Jail While Dick Cheney is Free
Notably, there appears to be wide recognition among readers that there is a double standard at play. Kiriakou is going to do time in jail, even though no person did time in jail for leaking the name of Valerie Plame, a former CIA agent.
One commenter, “So how come none of the Bush/Cheney gang was jailed for outing Valerie Plame?” Another commenter, “When Vice President Chaney did the same thing, but clearly with mens rea, when he outed Valerie Plume, he wasn’t prosecuted. Why are these different?”
Two people, who think Kiriakou was wrong, respectively wrote: “He should be jailed, as should people who committed similar crimes, such as Cheney,” and, “Yes, he did wrong and no excuses. But where is the justice when a government official, Deputy Secretary of State, and a conservative reporter disclosed Ambassador Wilson’s wife, at the time a CIA undercover agent, to the newspaper? I thought justice is blind and equal, but I am wrong!!!”
One other individual concluded, “This story provides another example of why I have lost so much of the respect for Barack Obama that I once felt. His administration goes after the little guys and lets the big guys walk, whether they are Wall Street bankers or former VPs.” Yet another wryly commented, “Apparently Mr. Kiriakou was not high enough in the pecking order to beat the rap.”
In Shane’s story, Bruce Riedel, “a retired veteran CIA officer who led an Afghan war review for Mr. Obama and turned down an offer to be considered for CIA director in 2009,” makes a similar point. He says Kiriakou “worked for him in the 1990s” and, while serving under him, he was an “exceptionally good intelligence officer.” Riedel adds, “To me, the irony of this whole thing is, very simply, that he’s going to be the only CIA officer to go to jail over torture,” even though he publicly denounced torture, Mr. Riedel said. “It’s deeply ironic under the Democratic president who ended torture”—But President Obama has not been willing to fully investigate and prosecute any former Bush administration officials and his Justice Department has chosen to not prosecute anyone in the CIA, even those involved in the destruction of torture tapes.
Presiding Over a Government That Zealously Prosecutes Leaks
Instead of vigorously supporting the rule of law through prosecutions of those involved in rendition and torture, he has displayed a zeal for secrecy and the ability of the Executive Branch to control the flow of information. He has pursued a record number of leaks investigations, more than any other president in the history of the country.
This might be because “leaks” are a pet peeve for Obama. Jonathan Alter’s book, The Promise, described how Obama is no fan of “leaks”:
Obama had one pet peeve that could make him lose his cool. It was a common source of anger for presidents: leaks. Complaints about loose lips became a constant theme of Obama’s early presidency. At his first Cabinet meeting he made a point of saying that he didn’t want to see his Cabinet “litigating” policy through the New York Times and the Washington Post. At a Blair House retreat for the Cabinet and senior staff at the end of July he devoted about a quarter of his comments to urging his people to keeping their disagreements within the family: “We should be having these debates on the inside, not the outside.” And during his twenty hours of deliberations over Afghanistan in the fall, he returned repeatedly to the theme. Naturally in Washington nearly every time he got upset about leaks it leaked.
For all his claims that he didn’t want yes-men around him, no one on his staff was brave enough to tell the president that obsessing over leaks was a colossal waste of time. (Aides should have recognized that the age-old problem in Washington isn’t managing leaks, but managing the president’s fury over them.) But it wouldn’t have mattered: leaks offended Obama’s sense of discipline and reminded him of everything he disliked about the capital. He was fearsome on the subject, which seemed to bring out his controlling nature to an even greater degree than usual… [emphasis added]
He boasted during his 2012 presidential campaign: “The Obama administration has prosecuted twice as many cases under the Espionage Act as all other administrations combined.” As president, “the Justice Department prosecuted six cases regarding national security leaks.” Before he was elected, federal prosecutors had used the Espionage Act in only three cases. He was proud his administration had used a World War I law aimed at chilling dissent against the war to target government employees sharing information to promote public discussion.
Strikingly, as McClatchy reported, senior Defense Department official, Undersecretary of Defense for Intelligence Michael Vickers, was recently found to have “provided the makers of the film Zero Dark Thirty with the restricted name of a US Special Operations Command officer who helped plan the May 2, 2011, raid on bin Laden’s hideout in Pakistan.” However, the case was referred to the Justice Department and the department has thus far declined to launch a criminal investigation.
Were Zero Dark Thirty a film much more critical of the operation to kill Bin Laden that happened to indict the Global War on Terrorism and suggest an end to war, it can be guaranteed Vickers would be facing criminal prosecution now for not having authorization to share the identity of this officer. But, Vickers’ leak was a “good leak“—one that could be considered self- serving since the cooperation with the film’s director Kathryn Bigelow and its screenplay writer, Mark Boal, can help the government make the case it can achieve success in the Global War on Terrorism and every day they are doing a better job of fighting terrorism.
Throughout Obama’s re-election campaign, he bandied about the slogan, “Forward.” In this case, that slogan means moving forward with separating a good man from his family for thirty months.
I’ve met Kiriakou and heard firsthand about the effects the government’s prosecution of him had and continues to have on his wife and five children.
For Shane’s story, he shared how his wife had served as “a top Iran specialist” for the CIA but was forced out of her job after he was formally charged in January. His family then went on food stamps “for several months” until his wife could find another job.
They could no longer afford to stay in their home in Arlington, Virginia, so they rented it out and moved to a “bungalow a third of the size with their three young children.” His legal fees tallied up to more than a half million dollars at one point. He had already paid $100,000.
Scooter Libby gets to move forward and continue to enjoy the fact that he is not in jail for his involvement in leaking Valerie Plame’s name because his sentence was commuted by President George W. Bush. Dick Cheney gets to move forward with the publication of a “memoir” about his heart (the organ and not what makes us capable of discerning right from wrong). Those who authorized and engaged in torture get to continue their upward trajectory on whatever career path in government they have chosen and retire handsomely. And, if you’re Jose Rodriguez, the former head of the CIA’s counterterrorism center, you can keep promoting your book while ensuring the public ignores how you had a role in the destruction of tapes of torture and harsh interrogations and still support waterboarding detainees—a war crime.
Kiriakou, on the other hand, must stop his life. It is not enough that the government already ruined his life with their prosecution. The Obama administration has decided he must walk away from his home and family and go to prison. He must serve thirty months in prison for passing along a name of an agent he did not think was undercover anymore and who a journalist passed on to a human rights advocate, who gave it to a Guantanamo defense lawyer for the purpose of helping his client challenge in court how he was treated by the CIA.
For that crime, he should miss out on at least two years of his children’s lives as they continue to grow up because, unlike the others, the Obama administration will not let him move forward. They chose to prosecute him and his prosecution is a celebrated achievement.