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Patrick Fitzgerald Resigns

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For better (he’s always been an aggressive, though usually fair, prosecutor) or for worse (I really believe he did try to hold Dick Cheney accountable for exposing Valerie Plame’s identity), Patrick Fitzgerald has resigned. And he’s a more honest prosecutor than a lot of the ones DOJ has these days.

From DOJ:

Attorney General Eric Holder issued the following statement today on the resignation of U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald:

“Throughout his distinguished career as a prosecutor, United States Attorney Patrick Fitzgerald has served the American people and the citizens of Illinois with the utmost integrity and a steadfast commitment to the cause of justice.

“From his early consequential years in New York City confronting the terrorist threat to his strong leadership of the U.S. Attorney’s Office for the Northern District of Illinois, Pat has rightly earned a reputation over these last 24 years as a prosecutor’s prosecutor, overseeing significant cases involving public corruption, international terrorism and terrorism financing, corporate fraud, organized crime, and violent crime.

“A hallmark of Pat’s tenure has been his personal commitment to the Department’s mission and his willingness to accept the call of duty – whenever it came and whatever it required.   In 2003, he was appointed as special counsel in the investigation into the disclosure of the identity of a covert employee of the Central Intelligence Agency that resulted in the indictment of I. Lewis “Scooter” Libby, then chief of staff and national security advisor to the Vice President.  He also served as lead counsel in the trial, which resulted in Mr. Libby’s conviction on charges of perjury and obstruction of justice.  In 2010, I appointed Pat as Special Attorney to supervise the investigation that resulted in the pending indictment, in the Eastern District of Virginia, of former CIA officer John Kiriakou for allegedly repeatedly disclosing classified information, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities.

“Over the years, he has gained the trust of two presidents and the unwavering confidence of four Attorneys General, and I am deeply grateful to him for his service and his friendship over the years.”

I’ll update as I learn more. Though I will say the timing–just after the crackdown on the NATO protestors as terrorists–is curious.

Update: Per CBS (NDIL’s announcements are bloggered), he has no immediate employment plans. His resignation will be effective June 30.

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Obama DOJ Claims Journalists Are Like Drug Users

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HuffPo has a good write-up of Friday’s Fourth Circuit hearing on whether James Risen is entitled to a reporter’s privilege in the Jeff Sterling case. It describes Judge Robert Gregory challenging DOJ appellate lawyer Robert Parker’s claims that there is no privilege at all. And while Charlie Savage described the two other judges as harder to read, both stories noted Albert Diaz calling Branzburg v. Hayes–the SCOTUS precedent–“clear as mud.”

I’m particularly interested in the way Gregory pushed back against Parker. He made a distinction between the crime that reporter Paul Branzberg witnessed–the preparation and consumption of hash–for which he was called to testify to a grand jury, and what Risen allegedly witnessed.

“I don’t think there would be a balancing test because there’s no privilege in the first place,” Parker said. “The salient point is that Risen is the only eyewitness to this crime.”

Gregory told Parker that the Supreme Court’s Branzburg v. Hayes decision — which Parker cited as precedent for forcing journalists to testify when they had witnessed a crime — involved the witnessing of a different crime, “not the disclosure itself.”

Parker said what Risen did was “analogous” to a journalist receiving drugs from a confidential source, and then refusing to testify about it.

“You think so?” Gregory asked, clearly unconvinced.

“The beneficiary of the privilege is the public … the people’s right to know,” Gregory said. “We need to know what the government is doing,” he noted. “The king never wants anyone to disclose.”

The challenge is interesting as a threshold level, because the Obama Administration has built a lot of their attacks against leaks on the notion that journalists are witnesses to a crime (Patrick Fitzgerald obtained Judy Miller’s testimony on the same basis, though he did so though an application of the balancing test that Parker wants to throw out altogether).

Obama’s DOJ has gone further, though: they appear to have approved the use of National Security Letters to obtain journalists’ contacts in the most recent update of the DIOG. That would appear to allow them to learn the identity of sources journalists phone or email without any judicial review. Which in turn allows DOJ to determine a crime has been committed and based on that, eliminate journalists’ confidentiality because they were “witnesses” to what DOJ has unilaterally determined is a crime.

If Gregory rejected the government’s argument based on leaks being a different kind of crime, it would not only protect Risen’s sources for his MERLIN story, but it would mean the government would have to curtail its use of NSLs to get journalist contacts (at least in the Fourth Circuit).

But this passage is revealing for another reason. As I said above, Branzberg was subponaed because he witnessed the use of illegal drugs. But Parker, in constructing his analogy, said receiving classified information from a source is like receiving illegal drugs, not just witnessing them. Note what that misapplication of the analogy does: It is not illegal to witness the use of drugs, but it is illegal to possess illegal drugs.

In other words, though no law supports such a suggestion, DOJ is now arguing that journalists who receive classified information are themselves criminals, just like those who possess hash.

Someone’s smoking something awful at DOJ.

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Did DOJ Ratchet Up the Charges Against Kiriakou Because of Poland Investigation?

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When John Kiriakou was first charged with espionage, he was charged with four counts:

  • Leaking Covert Officer A’s identity under IIPA section B
  • Leaking Deuce Martinez’ identity under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ tie to the torture program under defense information clause of Espionage Act
  • Lying to the CIA’s Publication Review Board; falsifying a material fact

In today’s indictment, Kiriakou was charged with five counts:

  • Leaking Covert Officer A’s identity under IIPA section A
  • Leaking Covert Officer A’s tie to the torture program under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ identity under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ tie to the torture program under defense information clause of Espionage Act
  • Lying to the CIA’s Publication Review Board; falsifying a material fact

Not only did they ratchet up the IIPA violation to one that carries a 10 year, as opposed to a 5 year, penalty, but they also added a violation of the Espionage Act tied to Covert Officer A’s ties to the torture program.

This is likely designed to punish Kiriakou for refusing to accept their plea deal.

But I also wonder whether it’s not a response to the reports that Poland will file charges against the officials who helped the CIA set up its torture prison in that country.

According to the complaint, the torture investigators never did anything with Covert Officer A’s identity (which they got via the journalist to whom Kiriakou provided the information). The FBI officer who wrote the affidavit wrote,

Neither Journalist A nor any other journalist to my knowledge has published the name of Covert Officer A.

The IIPA violation doesn’t require any intent of damage. Intentionally leaking the identity is enough. But the Espionage charge does:

Whoever, lawfully having possession of, access to, control, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; [my emphasis]

That is, to make the Espionage charge tied to Covert Officer A stick, they’re going to have to prove that Kiriakou had reason to know that leaking his name (to a journalist, but ultimately, to lawyers for people who had been tortured by Covert Officer A) “could be used to the injury of the United States.”

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?

Or, alternately, are they going to build their “injury” theory on the Polish tie–on Deuce Martinez’ and (possibly) Covert Officer A’s involvement on Polish soil (if he was, in fact, there)?

They may well just be punishing Kiriakou for putting them to the trouble of involving journalists and CIPA and exposure of their torture program. But I wouldn’t be surprised if they pointed to Poland’s disinterest in cooperating in any more illegal covert activities with us as the “injury” that Kiriakou’s alleged leaks have cause.

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Did Covert Officer A–Whose Identity John Kiriakou Allegedly Leaked–Leave the CIA?

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DOJ has apparently failed in its efforts to get John Kiriakou to agree to a plea deal; they’ve just indicted him.

Interestingly, the indictment describes Covert Officer A–whose identity Kiriakou allegedly leaked–differently than the complaint did. The complaint described him this way:

Covert Officer A is currently a covert CIA employee whose relationship to the CIA has been classified for more than two decades.

Here’s how the indictment describes him:

Covert Officer A was a covert CIA employee whose association with the CIA has been classified for more than two decades. Covert Office A was a covert agent as defined at Title 50, United States Code, Section 426(4), and the United States Government was taking affirmative measures to conceal Covert Officer A’s intelligence relationship to the United States. The association of Covert Officer A with the [Rendition, Detention, and Interrogation] Program was also classified and constituted national defense information. [my emphasis]

With the exception of the bolded passage, the information on Covert Officer A’s relationship to the CIA is now all past tense.

Which suggests several possibilities: That Covert Officer A’s status has been changed to permit this prosecution; Covert Officer A is no longer covert (though is still classified); Covert Officer A has left the CIA; or that Covert Officer A is no longer alive. Update: DOJ says this is the way they normally write their indictments.

Alternately (given the way the CIA screws up leak investigations) maybe they were giving Pat Fitzgerald bad information during the investigation. Nahh! The CIA wouldn’t screw up another leak prosecution, would they?

Update: Compare how they describe Covert Officer A with how they describe Deuce Martinez–whose employment, but not identity–is described in the past tense.

Officer B was employed by the CIA as an analyst assigned to the CIA Counterterrorism Center. Though the fact that the CIA employed Officer B was not itself classified, the associations of Officer B with the RDI Program and with the Abu Zubaydah operation were classified and constituted national defense information.

Update: The DOJ announcement says Covert Officer A “remains covert.”

 

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The Evolution of Patrick Fitzgerald’s Investigation into Torturer Disclosures

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Back in the CIA Leak Investigation days, we learned some interesting things from the changes in Patrick Fitzgerald’s authority to serve as Special Counsel. So when the Jon Kiriakou complaint the other day mentioned that Fitzgerald’s authority for that investigation had been changed twice…

By letter dated March 8, 2010, Patrick J. Fitzgerald, the United States Attorney for the Northern District of Illinois, was appointed Special Attorney to supervise the investigation pursuant to Title 28, United States Code, Section 515, subject to the supervision of the Deputy Attorney General.

The March 8, 2010 letter, as supplemented and amended on July 14, 2010 and clarified by letter dated May 27, 2011, delegates authority to conduct an investigation and any related prosecutions in connection with any matter arising out of the Department of Defense seizures of certain photographs from Guantanamo Bay detainees.

…It made me wonder whether those authorization letters would explain how this investigation moved from targeting detainee lawyers to targeting a former CIA officer, Jon Kiriakou. I also wondered whether it would tell us anything about whether Fitzgerald used the new DIOG guidelines to get reporter contacts with National Security Letters.

Alas, the letters–March 8, 2010; July 14, 2010; May 27, 2011–don’t answer the latter question. But they do show an interesting evolution over time.

As a reminder of where this all started, it’s worth reading this March 15, 2010 Bill Gertz article which was, AFAIK, the first public report of the investigation into the John Adams Project. It describes a March 9, 2010 meeting between Fitzgerald and the CIA.

The dispute prompted a meeting Tuesday at CIA headquarters between U.S. Attorney Patrick J. Fitzgerald and senior CIA counterintelligence officials. It is the latest battle between the agency and the department over detainees and interrogations of terrorists.

[snip]

According to U.S. officials familiar with the issue, the current dispute involves Justice Department officials who support an effort led by the American Civil Liberties Union to provide legal aid to military lawyers for the Guantanamo inmates. CIA counterintelligence officials oppose the effort and say giving terrorists photographs of interrogators has exposed CIA personnel and their families to possible terrorist attacks.

[snip]

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba.Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That meeting, of course, would have taken place the day after Fitzgerald was appointed. So immediately after Fitzgerald got put in charge of this investigation, he presumably moderated a fight between DOJ, which didn’t think detainee lawyers pursuing their clients’ torturers via independent means threatened to expose the torturers’ identity directly, and CIA, which apparently claimed to be worried.

At that point in the investigation, Fitzgerald’s mandate was very preliminary.

You are hereby appointed as a Special Attorney to the United States Attorney General pursuant to 28 U.S.C. § 515. In this capacity, you will investigate and determine whether criminal charges are appropriate in connection with any matter arising out of the Department of Defense seizures of certain photographs from Guantanamo Bay detainees.

By July 14, however, it appears that Fitzgerald determined there might be something worth prosecuting.

This letter supplements and amends your appointment as Special Attorney to the United States Attorney General and specifically authorizes you to conduct in the District of Columbia or any other judicial district of the United States any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct.

This supplement, note, was issued slightly more than 18 months ago (some grand jury terms are 18 months long).

So Fitzgerald identified a potential crime 18 months ago and only now is charging (but not yet indicting) someone? That might suggest, by the way, that Fitzgerald got this authority to use a grand jury to force people–perhaps the detainee investigators–to cooperate.

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Did the Government “Know Who Journalists Are Talking To” in the Kiriakou Investigation?

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As I laid out in this post, the complaint in the Jon Kiriakou case shows that the Patrick Fitzgerald-led investigative team could have found Kiriakou as the ultimate source for some Gitmo detainee lawyers’ information on two people associated with the torture program without accessing journalists’ communications directly (though the FBI has the contents two of Kiriakou’s email accounts, which likely contain a great deal of communication with journalists).

The sole possible exceptions are two emails between Journalist A and the Gitmo detainee lawyers’ investigator:

At 11:31 a.m. on August 19, 2008, approximately two hours after KIRIAKOU disclosed Covert Officer A’s last name to Journalist A, Journalist A sent an email to the defense investigator referenced above that contained Covert Officer
A’s full name in the subject line. The email further stated: “His name is [first and last name of Covert Officer A].” At 1:35 p.m., Journalist A sent a final email to the defense investigator in which he stated: “my guy came through with his memory.” Neither Journalist A nor any other journalist to my knowledge has published the name of Covert Officer A.

[snip]

For example, in an email dated April 10, 2008, Journalist A provided the defense investigator with Officer B’s home phone number.

The implication in the complaint is that the FBI got these emails from the investigator. But unlike Kiriakou’s emails, which it explains were, “recovered from search warrants served on two email accounts associated” with Kiriakou, the complaint doesn’t explain how and from whom the FBI obtained the emails between Journalist A and the defense team investigator.

Nevertheless, the complaint provides fairly innocuous possible explanations for how the FBI got a whole lot of emails involving journalists for this investigation. So maybe we have nothing to worry about.

Or maybe we do. It is also possible the government collected all communications within two degrees of separation from the defense investigator–thereby exposing a wide range of journalists’ sources–and we’d never know it.

That’s true for two reasons.

First, because this investigation is the first known leak investigation that has extended into the period–post October 15, 2011–during which the new Domestic Investigation and Operations Guide was in effect. The new DIOG made it a lot easier to use National Security Letters to get the contact information of journalists in investigations, like this one, with a national security nexus.

[T]he new DIOG seems to make it a lot easier to get news media contact records in national security investigations. A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictionsrequiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.

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How Did DOJ Find Jon Kiriakou?

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As I’ve noted, former CIA officer Jon Kiriakou was charged yesterday with leaking classified material–including one covert officer’s identity; the alleged leaks involve three different journalists. Since the complaint focuses on Kiriakou it’s easy to forget that the investigation didn’t start there: rather–it started with a filing submitted in a detainee defense case (almost certainly the 9/11 detainees) and photos found in some detainees’ cells, and went through at least one journalist (called Journalist A) along the way. So how did Patrick Fitzgerald’s team find Kiriakou? Did Fitzgerald obtain journalists’ contacts again?

In the case of Kiriakou, I don’t think so. At least not directly.

The complaint alleges there were two steps from Jon Kiriakou to the filing and the photographs.

Covert Officer A

  1. On August 19, 2008 Kiriakou gave Journalist A Covert Officer A’s name.
  2. Later the same day, Journalist A gave Covert Officer A’s name to the defense investigator.
  3. On January 19, 2009, the defense team submits a filing including Covert Officer A’s name.

Deuce Martinez

  1. On November 12, 2007, Kiriakou gave Journalist A Deuce Martinez’ personal email address. On May 20, 2008, Kiriakou told Journalist A that Martinez was not trained in torture. On November 17, 2008, Kiriakou told Journalist A some details about how Martinez traveled, presumably to a Black Site.
  2. On April 10, 2008, Journalist A gave a defense team investigator Martinez’ home phone number.
  3. The defense team had pictures taken of Martinez and gave them to detainees as part of a double blind identification effort; the pictures were found in “spring 2009.”

Note, the evidence in the complaint that Kiriakou was Journalist A’s source on Martinez is weaker than for Covert Officer A’s identity or that he was Scott Shane’s source for Martinez’ phone number. The complaint shows that Journalist A provided the phone number to the defense investigator, but does not show compellingly that Journalist A’s source of Martinez’ phone number was Kiriakou. That weak spot in their case is one piece of evidence that Fitzgerald’s team has neither interviewed Journalist A nor obtained his or her phone records to rule out other possible sources.

Now, remember, by the time DOJ started investigating this on March 19, 2009 (when the target was detainee lawyers, not their sources), and by the time Fitzgerald started investigating this on March 8, 2010, Scott Shane (who is described as Journalist B in the complaint) had already published this June 22, 2008 story, describing Deuce Martinez’ role in catching Abu Zubaydah and interrogating Khalid Sheikh Mohammed and others. It was sourced to,

The two dozen current and former American and foreign intelligence officials interviewed for this article offered a tantalizing but incomplete description of the C.I.A. detention program. [my emphasis]

In addition to Buzzy Krongard, Jon Kiriakou is the only on the record source. The story reveals that Kiriakou spoke with Shane in December 2007–the same month he spoke about waterboarding with ABC. But it also suggests Shane spoke with him after that, when he learned Kiriakou had been “cautioned … not to discuss classified matters.”

John C. Kiriakou, a former C.I.A. counterterrorism officer who was the first to question Abu Zubaydah, expressed such conflicted views when he spoke publicly to ABC News and other news organizations late last year. In a December interview with The Times, before being cautioned by the C.I.A. not to discuss classified matters, Read more →

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Did John Brennan’s Leak Hypocrisy Catch Up to Him?

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In his interview with Jason Leopold in May 2010, Jon Kiriakou explained how his book got approved by the CIA Publication Review Board. He describes someone who–given the mention of the transition team and the seniority at CIA–must be John Brennan, advising him to wait to resubmit his book until after the Obama Administration cleaned out the CIA.

Kiriakou: I called a very senior CIA officer, former CIA officer, who was very quietly supportive of me.

Leopold: Can you identify that person?

Kiriakou: I can’t, unfortunately. But he said, ‘I’m on the Obama transition team. We’re going to win this election next week. And we’re going to be making wholesale changes over there. Everybody’s gonna go. So make your changes and don’t resubmit until I tell you to.’ A week later Obama wins. About six weeks pass, Director Hayden resigns. Several people a layer or two, three layers beneath him also resign, My friend calls me back and says ‘resubmit it.’ This is immediately after Panetta is named Director. I resubmitted it. A week later, I got a one page letter saying ‘the book is cleared in its entirety.’

So not only was this guy who appears identical to John Brennan “quietly supportive
of Kiriakou,” but this John Brennan lookalike also played a key role in getting Kiriakou’s book approved.

Which is mighty interesting, because John Brennan was also centrally involved in this investigation, particularly in the hiring of Pat Fitzgerald in March 2010 to respond to CIA’s demand for IIPA charges.

According to the officials, the dispute centered on discussions for a interagency memorandum that was to be used in briefing President Obama and senior administration officials on the photographs found in Cuba.

Justice officials did not share the CIA’s security concerns about the risks posed to CIA interrogators and opposed language on the matter that was contained in the draft memorandum. The memo was being prepared for White House National Security Council aide John Brennan, who was to use it to brief the president.

The CIA insisted on keeping its language describing the case and wanted the memorandum sent forward in that form.

That resulted in the meeting and ultimately to Mr. Vieira withdrawing from the probe.

Now, I’m not suggesting that Kiriakou was targeted just to get back at John Brennan.

But I am saying that it is–at the very least–ironic that a world class leak hypocrite would be supportive of the guy who got nabbed in this investigation.

On the one hand, after all, Brennan had an antagonistic role with at least one of the whistleblowers the Obama Administration has targeted.

Yet, at the same time, he’s a noted leaker himself, such as for the breathless account of the Osama bin Laden targeting, and, more recently, providing on the record details that the Administration had declared a state secret.

The CIA got their IIPA charge. I’m not sure whether Kiriakou is the guy everyone thought they’d get.

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Will the CIA Regret It Started a Witchhunt against Detainee Lawyers?

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As I noted, DOJ charged former CIA officer Jon Kiriakou for allegedly leaking information relating to the CIA’s torture program (as well as purportedly secret information about GPS tracking that is not secret).

But remember how this investigation started: as an effort to implicate Gitmo detainees’ lawyers.

1) DOJ has been investigating the John Adams Project since last August to find out how photographs of torturers got into the hands of detainees at Gitmo. The JAP has employed a Private Investigator to track down likely interrogators of detainees, to take pictures, get a positive ID, and once done, call those interrogators as witnesses in legal proceedings. DOJ appears concerned that JAP may have made info–learned confidentially in the course of defending these detainees–available to those detainees, and therefore violated the protective order that all defense attorneys work under. Yet JAP says they collected all the info independently, which basically means the contractors in question just got caught using bad tradecraft.

2) DOJ appears to believe no crime was committed and was preparing a report to say as much for John Brennan, who will then brief Obama on it.

3) But CIA cried foul at DOJ’s determination, claiming that because one of the lawyers involved, Donald Vieira, is a former Democratic House Intelligence staffer, he is biased.  They seem to be suggesting that Vieira got briefed on something while at HPSCI that has biased him in this case, yet according to the CIA’s own records, he was not involved in any of the more explosive briefings on torture (so the claim is probably bullshit in any case). After CIA accused Vieira of bias, he recused himself from the investigation.

4) So apparently to replace Vieira and attempt to retain some hold on DOJ’s disintegrating prosecutorial discretion, DOJ brought in Patrick Fitzgerald to pick up with the investigation. Fitz, of course, a) has impeccable national security credentials, and b) has the most experience in the country investigating the Intelligence Identities Protection Act, having investigated the Torturer-in-Chief and his Chief of Staff for outing CIA spy Valerie Plame. In other words, DOJ brought in a guy whom CIA can’t bitch about, presumably to shut down this controversy, not inflame it.

Now, it appears that the CIA’s concerns were included in the memo to Brennan over DOJ’s wishes. Or perhaps Fitz is just going to review the case. And if the JAP people did, as they say, use only external information to ID these torturers, then they are likely legally safe and the involvement of Fitz is simply going to quiet down the controversy.

The investigation appears to have led to Kiriakou by tracing backwards through–presumably–John Sifton (who led the John Adams Project work) to his source, an as-yet unidentified journalist, and from him to Kiriakou.

Now, as a threshold matter, the investigation completely exonerated the detainee lawyers.

According to the complaint affidavit, the investigation determined that no laws were broken by the defense team as no law prohibited defense counsel from filing a classified document under seal outlining for a court classified information they had learned during the course of their investigation. Read more →

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DOJ Charges Former CIA Officer for Exposing CIA’s Torture

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It would be too simple to say that Jon Kiriakou was a whistle-blower. His initial leaks to journalists seemed like sanctioned leaks to minimize the effect torture had.

But whatever role he played, DOJ just charged him for leaking information–almost certainly about the Abu Zubaydah torture–to journalists.

A former CIA officer, John Kiriakou, was charged today with repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities, Justice Department officials announced.

The charges result from an investigation that was triggered by a classified defense filing in January 2009, which contained classified information the defense had not been given through official government channels, and, in part, by the discovery in the spring of 2009 of photographs of certain government employees and contractors in the materials of high-value detainees at Guantanamo Bay, Cuba. The investigation revealed that on multiple occasions, one of the journalists to whom Kiriakou is alleged to have illegally disclosed classified information, in turn, disclosed that information to a defense team investigator, and that this information was reflected in the classified defense filing and enabled the defense team to take or obtain surveillance photographs of government personnel. There are no allegations of criminal activity by any members of the defense team for the detainees.

I’ll have more shortly. But one thing to remember is that Lanny Breuer represented Kiriakou in the two years leading up to 2009. And Patrick Fitzgerald is the prosecutor on this case.

Update: Here’s the NYT story cited in the press release. It’s a Scott Shane article on Deuce Martinez.

Update: Here’s one detail Kiriakou is alleged to have leaked (the quote is from the Shane story).

Armed with Abu Zubaydah’s cellphone number, eavesdropping specialists deployed what some called the “magic box,” an electronic scanner that could track any switched-on mobile phone and give its approximate location. But Abu Zubaydah was careful about security: he turned his phone on only briefly to collect messages, not long enough for his trackers to get a fix on his whereabouts. [my emphasis]

First of all, this information was readily available–they will have an interesting time proving this was classified. But I find it particularly ironic given the Jones decision that came down today.

Update: I’ve corrected the title and text to indicate that Kiriakou was charged, but not yet indicted.

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