The charges against Kiriakou allege that in answering questions from reporters about suspicions that the CIA tortured detainees in its custody, he violated the Espionage Act, once an obscure World War I-era law that aimed at punishing Americans who gave aid to the enemy. It was passed in 1917 and has been the subject of much judicial and Congressional doubt ever since. Kiriakou is one of six government whistleblowers who have been charged under the Act by the Obama administration. From 1917 until Obama came into office, only three people had ever charged in this way.
The Obama Justice Department claims the former CIA officer "disclosed classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities."
The charges result from a CIA investigation. That investigation was triggered by a filing in January 2009 on behalf of detainees at Guantanamo that contained classified information the defense had not been given through government channels, and by the discovery in the spring of 2009 of photographs of alleged CIA employees among the legal materials of some detainees at Guantanamo. According to one description, Kiriakou gave several interviews about the CIA in 2008. Court documents charge that he provided names of covert Agency officials to a journalist, who allegedly in turn passed them on to a Guantanamo legal team. The team sought to have detainees identify specific CIA officials who participated in their renditions and torture. Kiriakou is accused of providing the identities of CIA officers that may have allowed names to be linked to photographs.
Many observers believe however that the real "offense" in the eyes of the Obama administration was quite different. In 2007, Kiriakou became a whistleblower. He went on record as the first (albeit by then, former) CIA official to confirm the use of waterboarding of al-Qaeda prisoners as an interrogation technique, and then to condemn it as torture. He specifically mentioned the waterboarding of Abu Zubaydah in that secret prison in Thailand. Zubaydah was at the time believed to be an al-Qaeda leader, though more likely was at best a mid-level operative. Kiriakou also ran afoul of the CIA over efforts to clear for publication a book he had written about the Agency's counterterrorism work. He maintains that his is instead a First Amendment case in which a whistleblower is being punished, that it is a selective prosecution to scare government insiders into silence when they see something wrong.
If Kiriakou had actually tortured someone himself, even to death, there is no possibility that he would be in trouble. John Kiriakou is 48. He is staring down a long tunnel at a potential sentence of up to 45 years in prison because in the national security state that rules the roost in Washington, talking out of turn about a crime has become the only possible crime.
Welcome to the Jungle
John Kiriakou and I share common attorneys through the Government Accountability Project, and I've had the chance to talk with him on any number of occasions. He is soft-spoken, thoughtful, and quick to laugh at a bad joke. When the subject turns to his case, and the way the government has treated him, however, things darken. His sentences get shorter and the quick smile disappears.
He understands the role his government has chosen for him: the head on a stick, the example, the message to everyone else involved in the horrors of post-9/11 America. Do the country's dirty work, kidnap, kill, imprison, torture, and we'll cover for you. Destroy the evidence of all that and we'll reward you. But speak out, and expect to be punished.
Like so many of us who have served the U.S. government honorably only to have its full force turned against us for an act or acts of conscience, the pain comes in trying to reconcile the two images of the U.S. government in your head. It's like trying to process the actions of an abusive father you still want to love.
One of Kiriakou's representatives, attorney Jesselyn Radack, told me, "It is a miscarriage of justice that John Kiriakou is the only person indicted in relation to the Bush-era torture program. The historic import cannot be understated. If a crime as egregious as state-sponsored torture can go unpunished, we lose all moral standing to condemn other governments' human rights violations. By "looking forward, not backward' we have taken a giant leap into the past."
One former CIA covert officer, who uses the pen name "Ishmael Jones," lays out a potential defense for Kiriakou: "Witness after witness could explain to the jury that Mr. Kiriakou is being selectively prosecuted, that his leaks are nothing compared to leaks by Obama administration officials and senior CIA bureaucrats. Witness after witness could show the jury that for any secret material published by Mr. Kiriakou, the books of senior CIA bureaucrats contain many times as much. Former CIA chief George Tenet wrote a book in 2007, approved by CIA censors, that contains dozens of pieces of classified information -- names and enough information to find names."
If only it was really that easy.
For at least six years it was the policy of the United States of America to torture and abuse its enemies or, in some cases, simply suspected enemies. It has remained a U.S. policy, even under the Obama administration, to employ "extraordinary rendition" -- that is, the sending of captured terror suspects to the jails of countries that are known for torture and abuse, an outsourcing of what we no longer want to do.
Techniques that the U.S. hanged men for at Nuremburg and in post-war Japan were employed and declared lawful. To embark on such a program with the oversight of the Bush administration, learned men and women had to have long discussions, with staffers running in and out of rooms with snippets of research to buttress the justifications being so laboriously developed. The CIA undoubtedly used some cumbersome bureaucratic process to hire contractors for its torture staff. The old manuals needed to be updated, psychiatrists consulted, military survival experts interviewed, training classes set up.
Videotapes were made of the torture sessions and no doubt DVDs full of real horror were reviewed back at headquarters. Torture techniques were even reportedly demonstrated to top officials inside the White House. Individual torturers who were considered particularly effective were no doubt identified, probably rewarded, and sent on to new secret sites to harm more people.