|Photo of John Kiriakou by Troy Page
By ADAM ZAGORIN
Torture! The Obama Administration is finally prosecuting someone in connection with torture! The only problem is that the case targets someone making a public disclosure about the problem, not a perpetrator of the act, or someone accused of covering it up. Torture is a crime under federal law.
The new case marks the Administration’s sixth national security leak prosecution, a total higher than any of its predecessors combined. The latest action seems to ignore last year’s Thomas Drake fiasco, in which an over-reaching Department of Justice (DOJ) tried to charge the National Security Administration whistleblower with espionage, only to be forced into plea-bargaining his supposed crimes down to a misdemeanor.
This time the target is John Kiriakou, a former CIA agent facing four felony counts, including espionage for allegedly revealing the identity of covert colleagues, and other offenses. Like Drake, whose multi-year case died with a whimper, Kiriakou faces more than 30 years in prison.
Drake and Kiriakou offer a study in contrast. A longtime Republican intent on exposing government waste, fraud and abuse, Drake is widely regarded as a whistleblower. The garrulous Kiriakou is another story.
In a much-hyped 2007 “exclusive” interview with Brian Ross of ABC News, he claimed that a single waterboarding forced alleged 9/11 conspirator Abu Zubayda to spill the beans, allowing the U.S. to block “maybe dozens” of planned terrorist attacks. Kiriakou conceded that waterboarding is torture (a fact supported by numerous international treaties, including those signed by the U.S.), then claimed that the brutal technique worked like a charm, at least on Abu Zubayda. The day after that ABC interview, Rush Limbaugh told millions of his listeners that, “It [waterboarding] works … thirty to 35 seconds and it works.”
Kiriakou’s account turned out to include inaccuracies. Zubayda was actually waterboarded at least 83 times over an extended period, not exactly a tribute to the technique’s efficacy or quick results. It’s unclear exactly how helpful Abu Zubayda’s revelations actually were. Much later, Kiriakou admitted that much of his account was based on hearsay and second-hand reports, an admission he buried on the next-to-last page of a ghost-written, 2010 memoir.
Kiriakou entered a plea of not guilty plea in federal court this week, and was freed on a $250,000 bond.
Whatever eventually happens to him, his case provides an unsettling commentary on the Obama Administration’s prosecutorial priorities, not to mention its promiscuous use of the Espionage Act, a 1917 statute that seems to have become a favorite at DOJ. Thomas Drake nearly fell victim to its draconian provisions, until the government’s case against him collapsed. After that, the presiding judge excoriated the “unconscionable” conduct of prosecutors in bringing its overblown charges in the first place.
Of course leaks to journalists are not exactly uncommon in Washington. In fact, major media often seem to publish classified information without adverse legal consequences. And the Obama Administration may be right in trying to stop that. But it’s a dangerously expansive interpretation of the law to view leaks to the press as spying, or a transgression of the Espionage Act.
Also disturbing is that while DOJ acts forcefully against leakers and whistleblowers, it has declined to bring a single case against CIA agents and others directly implicated in the documented mistreatment and death of prisoners in U.S. custody. Ditto in the case of a top agency official who admitted destroying video tapes recording the alleged abuse of persons held by the CIA. One of those tapes showed the alleged torture of Abu Zubayda who, in turn, is one of the prisoners whose mistreatment Kiriakou highlighted, along with the names of some of those who may have participated.
For all the Administration’s national security pieties, its real message seems to be that a CIA agent can now commit abuses without fear of prosecution, while the harsh standard of “espionage” is applied to those who talk to the press and, by extension, to the American people. If spies deserve to be judged by the same legal yardstick as everyone else, then it’s difficult to see why one gets off for destroying tapes documenting the torture of a prisoner (tapes demanded in evidence by a federal court), while another is threatened with 30 years behind bars for allegedly leaking information involving the same captive. Go figure.
Adam Zagorin is POGO’s Journalist-in-Residence.