CIA whistleblower John Kiriakou, who has been serving a prison sentence in a federal correctional facility in Loretto, Pennsylvania for over a year, has written a letter describing how he was given a special designation marking him dangerous. This led to him not being sent to a minimum security camp, and he reveals he was put in a low-security facility because the Bureau of Prisons (BOP) inappropriately categorized his offense as one related to “espionage.”
Firedoglake has been publishing “Letters from Loretto” by Kiriakou, who was the first member of the CIA to publicly acknowledge that torture was official US policy under the George W. Bush administration. He was convicted in October 2012 after he pled guilty to violating the Intelligence Identities Protection Act (IIPA) when he confirmed the name of an officer involved in the CIA’s Rendition, Detention and Interrogation (RDI) program to a reporter. He was sentenced in January 2013, and reported to prison on February 28, 2013.
Kiriakou was given a “public safety factor” designation when he was sentenced to prison. According to the Bureau of Prisons, “There are certain demonstrated behaviors, which require increased security measures to ensure the protection of society. There are nine Public Safety Factors (PSFs) which are applied to inmates who are not appropriate for placement at an institution which would permit inmate access to the community (i.e., MINIMUM security).”
For the record, Kiriakou was not only charged with violating the IIPA but also violating the Espionage Act three times.
The letter [PDF] recounts how no person in a “position of authority” viewed him as a threat after he was arrested. During trial, he was never considered a flight risk. He was not put in cuffs during sentencing of after he agreed to plead guilty to the IIPA offense and go to prison for thirty months. After sentencing, he was not taken into custody immediately. He had five weeks to prepare for prison and turned himself in at Federal Correctional Institution Loretto at the end of February in 2013.
“At the formal sentencing, the judge, a Clinton appointee with 20 years experience on the bench, recommended that I serve my time in a minimum security camp. The US Attorney, who represented the government in my case, also recommended camp,” according to Kiriakou’s letter.
But, upon arrival, he was put in a low security facility instead of a minimum security camp because the BOP believed he had committed an espionage-related offense.
“I had not committed nor was I convicted of espionage,” Kiriakou states. “My attorneys also argued that the judge and the prosecutors had both recommended camp, and they went into great legal detail on how the Intelligence Identities Protection Act had nothing to do with espionage.”
A copy [PDF] of the manual referenced shows a list of “greatest severity offenses.” They include offenses related to: aircraft piracy, arson, assault, car jacking, drug offenses, escape, espionage, explosives, extortion, homicide or voluntary manslaughter, kidnapping, robbery, sexual offenses, toxic substances/chemicals, and weapons.
The problem is, as Kiriakou pointed out to the Bureau of Prisons multiple times, violating the IIPA is not an espionage offense. It is not in the same part of the US Criminal Code, where espionage-related offenses can be found. It falls under statutes for the “protection of certain national security information.” One can violate this statute without committing the severe offense of “espionage.”
Having failed to convince the warden that he was improperly placed in the low-security facility, he now had to utilize the administrative remedy process. The entire appeal process took well over a half of a year and, excruciatingly, each response to his appeal contained the same copied and pasted material from the above-mentioned manual. They never addressed the rebuttals of Kiriakou or his attorneys. They never bothered to address the fact that he had been recommended for the camp by the judge and prosecutor.
The BOP regional director wrote in a letter on February 11, 2014, “Your total offensive behavior is to be considered utilizing the most serious offense or act committed when determining offense security level.”
In the letter, Kiriakou reacts, “The security designation has nothing to do with your crime. It has to do with whatever the government accuses you of doing, whether the charges were dropped or not. What happened to due process? If I had actually committed the crimes I was charged with, why didn’t the government insist on going to trial? Why did they make five different plea offers? Why did they offer to drop four of the five charges? And, if I’m so dangerous, why didn’t the BOP put me in a maximum security penitentiary?”
Remarkably, in a reply to his appeal in November 2013, he was informed by a unit manager that the BOP believed he had committed an “other related offense.”
It actually is understandable why Kiriakou’s offense would have been designated a “greatest severity offense” because in the other categories—high severity, moderate severity, low-moderate severity and lowest severity—there are no offenses, which are even remotely similar to what Kiriakou pled guilty to committing.
There is no category for people who violated the protection of specific national security information. That may be because only one person before Kiriakou was convicted of this crime and very few people (up until now) have gone to prison for improperly releasing national security information.
This basically shows that, similar to terrorism suspects, once one is given the label of someone who allegedly committed espionage it is nearly impossible to get rid of it. That label will follow a person to prison and be used against them, even if that person was never put on trial for those offenses because they were dropped.
Plus, Kiriakou also points out that the prison considered him a dangerous risk because he had access to the press (such as Firedoglake) and was capable of doing publicity on his case (Codepink and, again, Firedoglake). He believes he was given the “public safety factor” to punish him because the prison wanted to curtail his ability to engage in freedom of speech.
Hello again from the Federal “Correctional” Institution at Loretto, PA. I have begun counting down the days until my release on February 3. I have just over six months to go. You may remember when I first arrived here on February 28, 2013. I expected to be placed in the minimum security camp. Instead, I was taken to the prison where I remain. I wanted to tell you about the appeal process.
First though, I wanted to say thank you from the bottom of my heart to Medea Benjamin, Jane Hamsher and the members and supporters of Code Pink and Firedoglake. Your selflessness and generosity have literally saved our home. Heather, the children and I are eternally grateful for your kindness. I won’t forget this. And I can’t wait to get home and begin to pay it forward.
Many of you know from some of my earlier letters that the Bureau of Prisons has given me what is called a Public Safety Factor (PSF) designation. What that means, for all intents and purposes, is that I am so dangerous and such a threat to the safety of the public that I will never be allowed to serve any of my sentence in a minimum security camp. I have to be behind a double fence for my entire sentence. Some nameless, faceless, junior bureaucrat half-wit in the BOP’s Grand Prairie, TX, Designation and Sentence Computation Center (DSCC) is responsible for this designation. Others with a PSF include murderers, terrorists, arsonists, members of organized crime and child molesters.
With six months to go before release, I don’t care about the PSF anymore, except as a matter of principle. You see, on the day I was arrested, the judge released me on a signature bond, meaning that I didn’t have to put any money down, just an assurance from my wife and my brother that I would show up for trial. I was thus free to go about my business—among the public—for 13 months. When I took a plea to violating the Intelligence Identities Protection Act (IIPA) in October 2012, I remained free pending formal sentencing in January 2013. At the formal sentencing, the judge, a Clinton appointee with 20 years experience on the bench, recommended that I serve my time in a minimum security camp. The US Attorney, who represented the government in my case, also recommended camp. Neither believed I was a threat to the public. And on top of that, I was not cuffed at sentencing and I was not taken to prison. I remained free for another five weeks before driving up to the prison and turning myself in. Again, nobody, in any position of authority thought I was a threat to anybody.
I arrived at Loretto on February 28, 2013, and was immediately put in the prison, rather than the camp. I called my attorneys and they wrote to the BOP to point out the “mistake.” They made several points, the most important of which was that the BOP had placed the Public Safety Factor designation on me erroneously because my offense was categorized as “espionage.” I had not committed nor was I convicted of espionage.
My attorneys also argued that the judge and the prosecutors had both recommended camp, and they went into great legal detail on how the Intelligence Identities Protection Act had nothing to do with espionage.
The Designation and Sentence Computation Center, which placed the PSF on me, ignored my attorney’s letter and instead sent it to the warden for a response. This was a cynical and disingenuous attempt to pass the buck because the warden has no authority whatsoever to initiate or to remove a PSF. A month after receiving my attorney’s letter, the warden responded that, “Prior to an inmate’s placement in the correctional facility, the DSCC conducts a thorough review of their record. The “Greatest Severity” Public Safety Factor was placed on inmate Kiriakou by the DSCC. According to Program Statement 5100.08, Security Designation and Custody Classification Manual, crimes involving espionage, treason, sabotage or other related offenses fall within the greatest severity scale. If inmate Kiriakou feels this Public Safety Factor was placed him erroneously, he may file an administrative remedy by following the procedures outline in Program Statement 1330.17, Administrative Remedy Program.
I know the warden. I respect him. I have found him to be a man of his word, and these were clearly not his words. Besides the fact that espionage, treason and sabotage often carry the death penalty, while I was sentenced to 30 months with a camp recommendation, the warden in his letter just parroted back the same language my attorneys used in their letter to the DSCC, but with a different conclusion. I would have to avail myself of the BOP’s corrupt and inefficient Administrative Remedy Process.
A reminder: Around this time, July/August 2013, I filed a Freedom of Information Act (FOIA) request on myself. The BOP’s 157-page response included eight pages marked “FOIA Exempt: Do Not Release to Inmate,” which were apparently included inadvertently. One of the pages, dealing with security, said, “CAUTION – Inmate has extensive access to the press.” Another said, “CAUTION: Publicity.” This Public Safety Factor was clearly put on my to curtail or inhibit my freedom of speech and not for any other reason. Nonetheless, I had to go through the BOP’s motions.
Here’s some background on the Administrative Remedy Process. If a prisoner has a problem with staff, food, medical or pretty much anything else, he must file a form BP-8 1/2. (The courts will not hear a prisoner’s complaint until the Administrative Remedy Process is exhausted.) This form, with the prisoner’s complaint, goes to the Unit Manager for resolution. If the prisoner is not happy with the decision, he has one week to file a BP-9, which goes to the warden. If the prisoner ginds the warden’s decision unacceptable, he can file a BP-10, which goes to the BOP’s regional office. If the prisoner is unhappy with the regional decision, he can file a BP-11, which goes to the BOP’s headquarters in Washington. The BOP rarely meets its deadlines. But the prisoner MUST meet his deadlines or the entire complaint is dismissed.
I filed a BP 8 1/2 on November 6, 2013. I wrote, “I hereby request that the Public Safety Factor placed on me be lifted. I believe the PSF has been placed on me inappopriately. Please see the attached letter from my attorneys. My crime should not fall under “greatest severity” because it is not in any way associated with espionage, treason, sabotage or ‘other related offenses.’ It is not even in the same part of the US Code.” I also attached a copy of my plea agreement, which contained the judge’s and the prosecutor’s camp recommendation. On November 18, 2013, the Unit Manager responded, “According to PS 5100.08, Security Designation and Custody Classification Manual, crimes involving espionage, treason, sabotage or other related offenses fall within the greatest severity scale. Your offense is considered an ‘other related offense.’” Sound familiar?
On November 21, 2013, I filed a BP-9 with the warden, to whom I wrote, “I hereby request that the Public Safety Factor placed on me be lifted. I believe the PSF has been placed on me inappropriately. My crime should not fall under “greatest severity” because it is not in any way associated with “espionage, treason, sabotage or other related offenses,” as per PS 5100.08 of the Security Designation and Custody Classification Manual nor is it even in the same part of the US Code. Please see the attached information from my attorneys.”
The warden responded on December 20, 2013, saying, “A review of this matter reveals you were found guilty of Intentionally Disclosing Information Identifying a Covert Agent (capitals as original). Prior to your placement in a correctional facility, the DSCC conducted a thorough review of your record. Due to your conviction, the DSCC felt it was appropriate to apply a Greatest Severity Public Safety Factor. According to Program Statement 5100.08, Security Designation and Custody Classification Manual, crimes involving espionage, treason, sabotage or other related offenses fall within the greatest severity scale. Accordingly, your Request for Administrative Remedy is denied.” Again, sound familiar? It’s my attorney’s language, along with a denial that utterly ignores the facts. But note that the warden claims that my crime is an “other related offense.”
Although the warden’s response was dated December 20, 2013, I didn’t receive it until December 31, 2013—and we’re in the same building. So on January 2, 2014, I wrote a BP-10 to the BOP’s regional director. I said, “I request that the Public Safety Factor placed on me be lifted. I believe the PSF has been placed on me inappropriately. Please see the attached letter from my attorneys. My crime should not fall under ‘Greatest Severity’ because it is not in any way related to ‘espionage, treason, sabotage or other related offenses.’ Although I was charged with espionage, all of those charges were dropped for the simple reason that I had not committed espionage. Thank you.”
In a letter dated February 11, 2014, the BOP’s regional director wrote, “Your total offensive behavior is to be considered utilizing the most serious offense or act committed when determining offense security level.” Aha! So the cat’s out of the bag. The security designation has nothing to do with your crime. It has to do with whatever the government accuses you of doing, whether the charges were dropped or not. What happened to due process? If I had actually committed the crimes I was charged with, why didn’t the government insist on going to trial? Why did they make five different plea offers? Why did they offer to drop four of the five charges? And, if I’m so dangerous, why didn’t the BOP put me in a maximum security penitentiary?
Until I received this letter I believed that many BOP officials were either lazy or stupid. I was wrong. They’re malicious. (Well, some are also lazy and stupid.) The regional director added, “Appendix A of the Inmate Security Designation and Custody Classification Manual Offense Severity Scale classifies Espionage-treason, sabotage or related offenses as a Greatest Severity offense. Accordingly, your appeal is denied.” Somebody please buy this guy a dictionary!
Concluding that I would like to spend as much of the BOP’s time and money as I possibly could, I sent an identical appeal, a BP-11, to the BOP’s headquarters in Washington on March 4, 2014. Although the BOP’s response was dated May 21, 2014, a full month past the April 22, 2014 deadline, I did not receive it until June 22. The response was a slightly less nasty and confused version of the regional director’s response, although no less nonsensical. As if writing with a case of brain damage, the Administrator of National Appeals wrote, “When considering the severity level of the current offense, staff are to refer to the Offense Security Scale, Attachment A, of Program Statement 5100.08. The Offense Security Scale provides that any offense that involved espionage (defined as treason, sabotage or related offenses) is classified as a greatest severity offense. Your current offense is correctly classified as a greatest severity offense.”
On the one hand, I can’t believe that so many people in such positions of authority don’t even know the definition of espionage or that the Intelligence Identities Protection Act has nothing to do with espionage. I can’t believe they are so incompetent as to not check their own records to see that the only other person ever convicted of violating the IIPA (5 counts!) served two years of a five year sentence in Camp Cupcake. On the other hand, this isn’t about competence. It’s about punishing me for exercising my constitutional right to freedom of speech. But I’m a patient person. I can wait six months. I’m going to have a lot to say.
(FYI, according to a July 2014 article in Prison Legal News entitled, “BOP Grievance System Contributes to ‘Compliance of Defiance’ by Prisoners,” a study conducted jointly by David M. Bierie, the US Marhal’s Service and the Department of Criminology and Criminal Justice at the University of Maryland found that “the failure of BOP officials to adequately respond to grievances contributes to higher levels of violence in federal prisons. The research study determined that (a) benefit of the BOP’s grievance system is deflecting or reducing potential litigation. Indeed, many federal court decisions have been decided in the BOP’s favor based upon prisoners’ failure to exhaust administrative remedies.”
The article went on to say that, “The BOP’s grievance system is perceived by some prisoners as overly formal and more concerned with procedural practices and deadlines than the substance of a complaint. Accordingly, data suggest that a higher volume of late or rejected grievance responses will increase violence…Two features of the grievance process consistently predicted violence: the proportion of responses which were late, and the proportion of responses which were substantively rejected.”
Thanks again for everything. Six months to go. To learn more about my case, please visit www.defendjohnk.com.
Until next time,