Commuting John Kiriakou's Sentence Would Be a Step in the Right Direction for Obama

Contrary to popular belief, President Barack Obama didn't stop the United States from torturing. He just stopped it from torturing on his watch.

Yes, Obama issued an executive order on his second full day as president that defined acceptable interrogation techniques going forward -- definitively breaking with the Bush/Cheney torture regime.

But without public accountability for the officials responsible for our nation's drastic departure from the rule of law, we're really only another perceived emergency and another executive order away from some other president or vice president deciding to torture again.

What the country needed, after the pervasive brutality and human rights violations committed in our name, was full public exposure, including either a "truth commission" or criminal prosecutions, or both.

But Obama has been almost completely unwilling to, as he puts it, "look backward." Most notably, Obama's Justice Department has turned a blind eye toward the role top officials played in approving -- even micromanaging -- the use of techniques that were prosecuted as war crimes when other people did it.

Worse yet, the very same prosecutors who should have been going after the torturers have instead been going after national security officials who talk to reporters without permission.

The most imminent result of this war on leaks is that former CIA counterterrorism operative John Kiriakou is facing 30 months in prison starting next month as part of a plea deal. Prosecutors had charged him with five criminal counts, including three violations of the Espionage Act — a 1917 law intended to punish officials for aiding the enemy. The Obama administration has now used that draconian, anachronistic and inappropriate law six times to prosecute disclosures to journalists -- more than all previous presidential administrations combined.

Kiriakou, who had participated in the capture of suspected terrorist Abu Zubaydah in Pakistan in 2002, first came to the public's attention in a December 2007 interview with ABC News, in which he shared some details about the torture of detainees -- which he notably described as "torture." The interview made headlines because Kiriakou claimed, inaccurately, that torture had elicited intelligence that averted al Qaeda plots. (He later recanted that statement, acknowledging he had been deceived by torture apologists inside the agency.) But he was also the first person within the CIA to confirm that the "enhanced interrogation" was being managed, action by action, from Washington, through constant cable traffic. In a subsequent NBC interview, Kiriakou affirmed:

It's not something that an agency officer just wakes up in the morning and decides he's going to carry out an enhanced technique on a prisoner. This was a policy made at the White House, with concurrence from the National Security Council and Justice Department.

Kiriakou then went on to write a critical book about his tenure at the CIA, and became a source for reporters.

Meanwhile, then-U.S. Attorney Patrick Fitzgerald was investigating how military defense attorneys at Guantanamo Bay obtained the names and photographs of CIA personnel. He eventually tracked one name back to a reporter who had spoken to Kiriakou. A subsequent search of emails on Kiriakou's computer then showed he had divulged information about the role of a specific CIA officer in those interrogations to a New York Times reporter as well.

Rather than risk a far longer prison term -- and because he could not longer afford his legal fees -- Kiriakou in October agreed to plead guilty to one of the five charges against him: Violating the Intelligence Identities Protection Act by emailing the name of a covert C.I.A. officer to a freelance reporter, who never even published it.

The end result is that something very perverse is happening. Had John Kiriakou actually engaged in torture, he wouldn't be in any trouble at all -- he never even would have been investigated. But because he talked about torture with reporters, he's going to prison.

President Obama, in his second term, no longer needs to worry about looking naive, or about taking a political hit, or about upsetting the intelligence community. And while he shows no signs of suddenly changing his mind about investigating torture, one has to wonder: Is he really prepared to stand by as his administration proclaims whistleblowing to be more of a threat to the nation than waterboarding?

Is he really okay staying silent about prosecutorial overreach, especially after his Justice Department evidently drove Aaron Swartz to suicide, and his Defense Department is treating Bradley Manning as if he were a terrorist?

Obama could, instead, make a powerful statement by commuting Kiriakou's sentence, as a petition drive on is currently asking him to do. 

He would be making it clear that no, talking about human rights abuses is not worse than committing them.

He would be sending a signal to prosecutors that justice is not served by going after the little fish and letting the big fish get away.

He would be saying that even though he's not willing to lead the nation in a public debate about torture and its role in this country's past and future, he's also not willing to criminalize that conversation.

Dan Froomkin is in the process of launching a new accountability journalism project. He is contributing editor of Nieman Reports, and the former senior Washington correspondent for the Huffington Post. He wrote the White House Watch column for the Washington Post website from 2004 to 2009, and was editor of the site from 2000 to 2003. Dan welcomes your email and can be reached at