On December 10, 2007, John Kiriakou gave an interview to ABC News in which he described his participation in the capture of Abu Zubaydah, who was accused of having been an aide to Osama bin Laden. Kiriakou said he did not witness his waterboarding, but he had been told by CIA associates, it had taken only a single brief instance of waterboarding to extract answers.
…He was able to withstand the waterboarding for quite some time. And by that I mean probably 30, 35 seconds…and a short time afterwards, in the next day or so, he told his interrogator that Allah had visited him in his cell during the night and told him to cooperate.
Kiriakou’s accounts of Abu Zubaydah’s waterboarding, and the relatively mild nature of it, were widely repeated in 2007, and paraphrased and he became a regular guest expert on news and public affairs shows, on the topics of interrogation, and counter-terrorism.
In 2009, it was reported that Abu Zubaydah had been waterboarded at least 83 times, and that little or no useful extra information may have been gained by “harsh methods”. Kiriakou was under the mistaken belief that Zubaydah was waterboarded only once, and even that single instance he described as a form of torture and expressed reservations about whether the value of the information was worth the damage done to the United States’ reputation.
Kiriakou has said that he chose not to blow the whistle on torture through internal channels because he believed he “wouldn’t have gotten anywhere” because his superiors and the congressional intelligence committees were already aware of it.
Kiriakou was highly decorated during his 14 years of CIA counterterrorism service. Current CIA director Gina Haspel disowned torture allegations in a letter to Senator Mark Warner: “[T]he program ultimately did damage to our officers and our standing in the world. With both the benefit of hindsight and my experience as a senior Agency leader, the enhanced interrogation program is not one the CIA should have undertaken.” Kiriakou’s objections catalyzed the Detainee Treatment Act of 2005, which strengthened and clarified existing interrogation prohibitions.
Kiriakou’s alleged crime was confirming the identity of a CIA agent to an ABC news reporter who maintained its confidentiality and never published it. No CIA officer or former officer was injured or threatened, and no intelligence method was disclosed. President George W. Bush’s Department of Justice thoroughly investigated Kiriakou, concluded no crime had been committed, and closed the case.
Then came Barack Obama. He appointed John Brennan, a nemesis of Kiriakou’s, as deputy national security advisor and then CIA director. Brennan ordered Kiriakou’s case re-opened. Then-FBI director Robert Mueller formed a “John Kiriakou Task Force.” No new evidence was unearthed. Yet Obama’s Department of Justice charged Kiriakou with five felonies for conduct the Bush administration had concluded he was innocent of.
It was Brennan who advised the DOJ to charge Kiriakou with espionage, despite the absence of evidence. The goal was to force Kiriakou to mount a costly defense. Faced with limitless DOJ resources, the prospect of bankruptcy, and decades in prison away from his children, Kiriakou pled guilty to one count of violating the rarely enforced 1982 Intelligence Identities Protection Act (IIPA). According to a recent Congressional Research Service report, the only other IIPA conviction was of Sharon Scranage, a CIA clerk stationed in Ghana, who disclosed the names of every covert CIA operative in West Africa to her Ghanian spy paramour. The disclosure reached America’s Soviet bloc enemies and occasioned the death of at least one CIA operative. Scranage served eight months of her sentence.
The constitutionality of the IIPA under the First Amendment was raised during its enactment. But the issue has never been decided by a federal court. Kiriakou served 23 months in prison and lost his pension and shining reputation, all over a disclosure that neither harmed nor threatened any individual or interest of the United States.
Attorney General Robert Jackson warned in 1940 that, with limitless discretion and an arsenal of opaque federal prohibitions, prosecutors and the FBI needed no longer to stick to uncovering crimes and searching for culprits; instead they could identify enemies and search for crimes. The danger is vastly greater today, as renowned lawyer and author Harvey Silverglate chronicled in his book Three Felonies a Day, because both the volume of federal crimes and the magnitude of the government’s resources have increased.
Attorney General Jackson elaborated:
With the law books filled with a great assortment of crimes, a prosecutor, stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him….[T]he real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
Kiriakou’s real “crime” was being personally obnoxious to Brennan and Mueller. That conclusion is reinforced by his selective prosecution. Consider the following. CIA director David Petraeus leaked the names of 10 undercover CIA officers to his biographer. CIA director Leon Panetta leaked the name of the Navy SEAL who killed Osama bin Laden to persons without clearances during a speech in the CIA auditorium. Deputy CIA director Michael Morell provided a briefing to the director and writer of the film Zero Dark Thirty at CIA headquarters using a classified mock-up of the bin Laden compound. None of these Obama cheerleaders were charged under the IIPA or Espionage Act for disclosures vastly more alarming than Kiriakou confirming the identify of a single CIA agent to a news reporter who maintained its confidentiality.
Kiriakou’s case is bigger than just him. A pardon by President Trump would encourage like-minded patriots in the intelligence community, without fear of merciless retribution, to expose any epidemics of partisanship, lawlessness, or incompetence amongst its leadership. President Trump has been politically courageous in issuing pardons. In contrast, Presidents Obama and Bill Clinton commuted the sentence of Chelsea Manning and pardoned Marc Rich, respectively, on their last days in the White House. Pardoning Kiriakou now would be both courageous and President Trump’s finest salute to justice.
(Full disclosure: Bruce Fein is an attorney representing Kiriakou, pro bono, in this matter.) Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.