WASHINGTON -- One of Patrick J. Fitzgerald's last cases as one of the nation's most prominent U.S. attorneys may turn out to be a misfire.
John Kiriakou is a 14-year CIA veteran who, until his indictment, was best known for publicly rejecting the Bush administration's Orwellian doublespeak about "enhanced interrogation." In a 2007 ABC News interview, Kiriakou became the first person directly involved in the handling of terror suspects to call waterboarding at the CIA's hands what it was -- torture.
But in April, Fitzgerald charged Kiriakou with five criminal counts, including three violations of the Espionage Act — a 1917 law intended to punish officials for aiding the enemy -- for allegedly disclosing national security information to reporters about CIA agents and their role in those interrogations to reporters.
Fitzgerald’s use of the Espionage Act is in keeping with the Department of Justice’s crackdown on leaks to reporters. And the Obama administration has now used the Espionage Act six times to prosecute disclosures to journalists -- more than all previous presidential administrations combined.
But the severity of the charges facing Kiriakou -- especially in contrast with the lack of prosecutions related to the interrogations themselves -- has outraged human rights activists and good-government groups, who said they see the scapegoating of a whistleblower.
“They are going after someone who blew the whistle on torture and waterboarding,” said Jesselyn Radack, national security and human rights director at the Government Accountability Project, which represents whistleblowers, “while at the same time, the people who wrote the memos and issued the orders and carried out the torture are being covered up, and get a pass.”
“I think it really takes very little time to understand that what is going on is an attempt to use censorship as a means of influencing public opinion, by silencing your critics and enabling or empowering those who present the party line,” said Scott Horton, a human rights lawyer and Harper’s blogger.
The administration’s selectivity when it comes to the prosecution of leak cases has also alarmed Republicans in Congress, some of whom are demanding to know why cases like Kiriakou’s are prosecuted while disclosures of highly classified information that bolsters the Obama administration’s national security record -- such as details of the operation to kill Osama bin Laden -- go unpunished. As a result, Attorney General Eric Holder in early June appointed two more U.S. attorneys to lead criminal investigation into those leaks as well.
Fitzgerald, 51, announced in late May that he would step down at the end of June after 10 years on the job. He gave no reason and said he had no immediate employment plans.
Fitzgerald was widely hailed for handling a series of major cases, including successful corruption prosecutions of two consecutive Illinois governors — Republican George Ryan and Democrat Rod Blagojevich -- as well as media mogul Conrad Black. The Associated Press described him as “the country’s most-feared federal prosecutor.”
His most celebrated achievement was his 2007 conviction of I. Lewis (“Scooter”) Libby, then-vice president Dick Cheney’s chief of staff, for perjury and obstruction of justice related to the leak of Valerie Plame’s identity as a CIA operative.
But the Kiriakou case and the Plame investigation have something in common that critics say could tarnish Fitzgerald’s legacy. In both cases, there were much bigger fish to fry, and they’re still flapping away.
In the Plame case, Fitzgerald stopped short of indicting Cheney and White House adviser Karl Rove, both of whom had been targets in his investigation -- Rove for repeatedly lying about his role in leaking Plame’s identity to then-Time magazine reporter Matt Cooper, and Cheney for telling Libby about Plame, then sending him out to talk to reporters. (See related story on Fitzgerald’s Legacy.)
“I think it was a missed opportunity,” said David Gray Adler, incoming director of the Cecil Andrus Center for Public Policy at Boise State University. “It was really unfortunate that he did not pursue Rove and Cheney, because I think Americans deserved to know the truth of the entire matter.”
Adler, who writes about the expansion of executive power, said that in both the Libby and Kiriakou cases, Fitzgerald fell short of his obligation to prosecute abuses of power. “It’s bizarre to me that those who were involved in waterboarding have been granted immunity, and now Kiriakou’s going to be prosecuted for leaking information that exposed illegal actions,” Adler said.
And while Fitzgerald’s limited mandate in this investigation was to expose leaks -- not to prosecute torturers -- Adler said the charges against Kiriakou were misplaced. “This is overkill,” he said. “And anytime that you go after those people who are whistleblowers, then you’re going to send a message, you’re trying to intimidate people from practicing a good and open government.”
‘THE RELUCTANT SPY’
Trained as an analyst and operations officer, Kiriakou in March 2002 coordinated the capture in Pakistan of Abu Zubaydah, at the time thought to be a major al Qaeda figure. He left the CIA in 2004 and first came to the public’s attention in December 2007, when he showed up on ABC News.
In addition to calling waterboarding torture, Kiriakou also confirmed what torture opponents had long suspected: that every decision leading to the torture of CIA detainees was documented and approved in cables to and from Washington.
“The cable traffic back and forth was extremely specific,” Kiriakou told ABC. “No one wanted to get in trouble by going overboard. So it was extremely deliberate.”
The ABC interview, Kiriakou’s supporters said, was the most significant of many ways in which he made enemies within the intelligence community.
More ill will resulted when, after leaving the CIA, Kiriakou spent a year as an investigator for the Senate Foreign Relations Committee. Then, in March 2010, he published a book, The Reluctant Spy: My Secret Life in the CIA's War on Terror, which included scathing depictions of the run up to war, the torture program, and FBI lapses immediately after 9/11.
“Even if torture works, it cannot be tolerated — not in one case or a thousand or a million,” he wrote. “If their efficacy becomes the measure of abhorrent acts, all sorts of unspeakable crimes somehow become acceptable. ... There are things we should not do, even in the name of national security.”
The same month Kiriakou’s book came out, Fitzgerald was put in charge of an already long-running investigation into how military defense attorneys at Guantanamo Bay obtained names and photographs of CIA personnel.
The attorneys had submitted the names and pictures in sealed court filings and had given them to detainees, in an effort to help them identify their interrogators. They were never made public. Yet CIA officials were reportedly livid, and demanded that the Department of Justice investigate.
Fitzgerald eventually cleared the Gitmo defense attorneys of wrongdoing. But on April 5, 2012, a team of prosecutors working under his direction persuaded a Virginia grand jury to indict Kiriakou on five criminal counts.
Kiriakou was accused of disclosing the identity of a covert CIA officer to independent investigative reporter Matt Cole, and disclosing the identity and other “national defense” information about non-covert CIA officer Deuce Martinez to Cole and New York Times reporter Scott Shane, both of whom were investigating the torture of detainees under the Bush administration.
The final count of the indictment charged Kiriakou with lying to the CIA’s publication review board in order to get permission to write in his book about an electronic scanning device -- dubbed a “magic box” -- that the Times had already described in newspaper articles.
Kirakou's supporters, including many open-government advocates, said he’s being punished for his whistleblowing. The CIA -- through Fitzgerald and the Department of Justice -- is trying to chill critical speech, they said.
“This prosecution came about after a years-long multi-million-dollar investigation that basically produced nothing,” said Radack. “Does it really make sense that it landed on John Kiriakou?”
“I just think that this is too much on Kiriakou,” said Plato Cacheris, Kiriakou’s attorney and one of Washington’s top defense lawyers. “He’s apparently being singled out, and he has had no intention to violate the law.”
Randall Samborn, Fitzgerald’s spokesman, declined to comment about the case to The Huffington Post.
The name of the covert operative that Fitzgerald accused Kiriakou of disclosing has never been made public. According to a criminal complaint filed in January, the name ended up in the hands of the defense attorneys because Kiriakou revealed it to Cole. Cole turned it over to the terror suspects’ defense attorneys, but never published it, the complaint said.
So of the 70 names and 25 photos that the Guantanamo defense attorneys had in their possession, Kiriakou is alleged to have had at most an indirect role in the discovery of one name. And the other charges against Kiriakou have nothing to do with Fitzgerald’s original investigation.
Kathleen McClellan, a lawyer at the Government Accountability Project, has a theory about why Kiriakou is being singled out.
“Whoever gave them the other 69 names didn’t blow the whistle on torture,” McClellan said.
‘THE HEAVY HAMMER’
If convicted of all charges, Kiriakou, 48, faces a maximum of 30 years in prison.
“There is a range of options that the government has to deal with unauthorized disclosures -- anywhere from an adverse performance review to suspension or revocation of clearance, to termination of employment, to financial penalties,” explained Steven Aftergood, who runs the Federation of American Scientists’ Secrecy News blog.
“A felony prosecution under the Espionage Act is the nuclear response. And in this case it seems particularly extreme considering that the information that was allegedly disclosed did not become public.”
The government’s whole decision-making process is “perplexing,” Aftergood said.
“This is the heavy hammer in the arsenal,” said Scott Horton, referring to the Espionage Act. “They keep losing these cases and yet they keep reaching for it time and again and you’ve got to wonder: What the hell is up with that?”
Kiriakou is the sixth government official charged with aiding the country’s enemies by talking to reporters since President Barack Obama took office. Some of the other cases are not going well for the government.
Federal prosecutors initially filed 10 felony charges against Thomas Drake, a whistleblower who allegedly provided classified information about gross mismanagement by his employer, the National Security Agency, to a Baltimore Sun reporter.
The case fell apart last summer, just before trial, leading prosecutors to drop the charges and settle for Drake pleading guilty to a misdemeanor. The judge called the government's handling of the case "unconscionable."
The Justice Department has also charged former CIA agent Jeffrey Sterling with violating the Espionage Act for leaking classified information to New York Times reporter James Risen about a botched attempt to lead the Iranian nuclear program astray.
That case may also come undone, the Justice Department has said, unless Risen is forced to testify about his sources -- a request that ran afoul of a district court judge and an appellate panel in May.
Now, rumors are circulating in Washington’s good-government community that the prosecution recognizes that it has a weak case against Kiriakou, too -- if it has a case at all.
Sources knowledgeable about the case but not authorized to speak on behalf of either party told HuffPost that prosecutors have met several times with Kiriakou’s defense team to discuss “hypothetical” plea deals. These hypotheticals reportedly started with Kiriakou serving 10 years in prison. Days before his April indictment, the hypothetical deals had ratcheted down to no prison time, and a guilty plea only to lying to the FBI.
Kiriakou is said to have rejected all the offers, refusing to admit any guilt.
Cacheris, Kiriakou’s lawyer, would only say that he and prosecutors have discussed matters related to sentencing “generally, but nothing serious, because we’re sort of looking to go to trial.” Asked about plea agreements in particular, Cacheris said, “We’ve had meetings to discuss discovery issues. There’s nothing on any plea agreement pending, at least not now.”
Samborn, Fitzgerald’s spokesman, said that “Justice Department rules prohibit discussions about possible pleas or plea negotiations.”
Radack said that if prosecutors are indeed talking about no jail time, it “shows how flimsy the case is.” If prosecutors believe Kiriakou to be guilty of multiple espionage charges, “surely they wouldn’t let him walk away,” Radack said.
Matt Miller, a former Justice Department spokesman who is now a public affairs consultant, said his former colleagues’ actions seemed justified to him.
“My take on it is pretty simple: He broke one of the cardinal rules of the intelligence world, which is exposing the name of a covert operative, and because of that is being indicted,” Miller said. “People in the intelligence community take that more seriously than just about anything.” He added: “As for why others did or didn’t get prosecuted, it’s just impossible to say from the outside.”
Fitzgerald told reporters at a May 24 press conference that his departure would not affect pending cases. Dean Boyd, a Justice Department spokesman, said in an email, “The Kiriakou case will continue to be handled by the team of veteran prosecutors who are assigned to it.”
Fitzgerald never appeared in court on the matter himself.
“Who might be charged with overseeing the team after Mr. Fitzgerald’s departure on June 30 is still to be determined,” Boyd told HuffPost.
THE WRONG MAN?
The bitterest irony of the case is that if Kiriakou had actually tortured, rather than talked about it, he almost certainly wouldn’t be in trouble.
The torturers and their commanders have no fear because Obama has vowed to “look forward instead of looking backward” when it comes to crimes committed during the post-9/11 period in the name of national security.
Indeed, the same month Kiriakou was indicted, former CIA officer Jose Rodriguez, who oversaw the interrogation program, was on a book tour, proudly defending waterboarding and his own decision to destroy videos of interrogations in which it was used.
In the Kiriakou case, prosecuting the actual torturers wasn’t in Fitzgerald’s purview. Unlike the Valerie Plame investigation, where he was appointed as a special counsel and could choose his own course, in this leak case, he was very much working under Justice Department supervision, with a remit that focused narrowly on the Guantanamo defense attorneys.
But pursuing Kiriakou and throwing the book at him was clearly Fitzgerald’s call -- and one for which he may be called to account in the history books.
Maybe Fitzgerald isn’t all he’s cracked up to be, Steven Aftergood said. “There does seem to be a pattern of going for the little guy,” he noted. “Just because he’s ferocious doesn’t mean he’s either wise or brave.”
This story originally appeared in our weekly iPad magazine, Huffington, in the iTunes App store.
Dan Froomkin is senior Washington correspondent for The Huffington Post. You can send him an email, bookmark his page; subscribe to his RSS feed, follow him on Twitter or on Facebook, and/or become a fan and get email alerts when he writes.