Well-played, Justice Department. Indict former CIA officer John Kiriakou on Tuesday evening, but don't unseal the indictment until 4:59pm on Thursday, right before the holiday weekend, in order to avoid press coverage of the Obama administration's 6th Espionage Act prosecution of a whistleblower.
Before I start deconstructing the Indictment, here's a key to reading the tea leaves:
Officer A = undercover
Officer B = former CIA career & targeting analyst Deuce Martinez (never undercover)
Journalist A = Matthew Cole
Journalist B = Scott Shane
Journalist C = mentioned in original charges, but dropped from Indictment
Facts Not in the Indictment/Kiriakou's Whistleblowing Disclosures:
* Refused to be trained in torture tactics
* First CIA officer to call waterboarding "torture" (2007/ABC News)
* Helped expose CIA's torture program as policy rather than playtime (2009/The Reluctant Spy: My Secret Life in the CIA's War on Terror)
It's outrageous that John Kiriakou, a whistleblower, is the ONLY INDIVIDUAL TO BE PROSECUTED IN RELATION TO THE BUSH ADMINISTRATION'S TORTURE PROGRAM.
The interrogators who tortured prisoners, the officials who gave the orders, the attorneys who authored the torture memos, and the CIA agents who destroyed the interrogation tapes have not been held professionally accountable, much less charged with crimes. But John Kiriakou is facing decades in prison for helping expose torture.
The fact that national security and intelligence officials have become the exception to the Obama administration's mantra of "looking forward, not backward" and Bush-era lawbreaking sets a dangerous precedent: if you torture a prisoner, you will not be held criminally liable, but if you blow the whistle on torture, you risk criminal prosecution under the Espionage Act.
So what's the back-story here? In the government's own words:
The charges result from an investigation that was triggered by a classified defense filing [by attorneys representing Guantanamo detainees], which contained classified information the defense had not been given through official government channels, and in part, by the discovery . . . of photographs of certain government employees and contractors [alleged torturers] in the materials of high-value detainees.
In other words, instead of an investigation into the government's withholding of exculpatory information from GITMO detainees' lawyers, the government investigated how the lawyers obtained the information. And instead of investigating the 70 names and 25 photos of the detainees alleged torturers, the government investigated how the prisoners found out.
Marcy Wheeler had an interesting take on the Justice Department's case:
Are they really preparing to argue that helping men mount a fair defense in court injures the United States? That ensuring our legal system works the way it is supposed to work, rather than the way the kangaroo courts at Gitmo have been set up, hurts this country?
Even though plea negotiation are supposed to be in good faith, the government increased the charges and penalties in the Indictment because, like NSA whistleblower Tom Drake, Kiriakou rejected a handful of plea offers because he refused to plea bargain with the truth.
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.
Don't bother looking for any clarity in the Making False Statements charge, a typical add-on to intimidate defendants. The Justice Department struggles to explain the indictment in its own convoluted press release:
The indictment also charges him with one count of making false statements for allegedly lying to the Publications Review Board of the CIA in an unsuccessful attempt to trick the CIA into allowing him to include classified information in a book he was seeking to publish.
So, according to the Justice Department, Kiriakou has been charged with a felony for trying to trick the CIA but failing. Even if this is true - doubtful considering the Justice Department's abysmal record prosecuting whistleblowers under the Espionage Act - doesn’t the Justice Department have more important crimes to prosecute? Certainly the Justice Department can't indict everyone who’s tried to trick the CIA. And, even by Justice's own admission, NO classified information was published and the CIA cleared Kiriakou book in its entirety. What the government really seems to be angry about is that Kiriakou's book sharply criticized the CIA’s torture program and revealed embarrassing information about the FBI - namely that the FBI shelved potentially actionable intelligence in the aftermath of 9/11.
Like the Drake case before it, this case is about retribution and politics, not justice.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.