A recent flurry of media coverage (here, here, here, and here) on the Espionage Act case against Central Intelligence Agency (CIA) whistleblower John Kiriakou brings new light to case and the impact the Obama administration's unprecedented use of the Espionage Act against whistleblowers has on free press.
In addition to facing what are shaping up to be increasingly flimsy Espionage Act charges, Kiriakou is also accused of confirming a name of a torturer to Matthew Cole, which eventually through Kevin Bacon-style degrees of separation ended up in a SEALED defense filing in a Guantanamo Bay tribunal - not in the press.
According to Cryptocomb,
The CIA officer listed as "Officer A" in the John Kiriakou complaint has been revealed to be Thomas Donahue Fletcher. Born in 1953. Fletcher is currently a resident of Vienna, VA.
I explained
yesterday that even if the allegation about Kiriakou confirming the name were true, he didn't actually "out" a CIA agent, whom I would argue was not properly under cover because 1) supposedly the government can't put people undercover shield their war crimes, 2) Mr. Fletcher was only under "nominal cover" (not the deeper "integrated cover" or "non-official cover"), and 3) his name was known (prior to Kiriakou's alleged "outing" in late 2008) by a huge swath of the human rights community, one of whom is willing to testify to this at Kiriakou's trial.
Also from Cryptocomb:
Further - source states journalists have known identity of this person prior to August 2008, when Kiriakou allegedly confirmed the identity in an email to Matthew Cole, formerly of ABC News.
Nonetheless, Kiriakou is the only person to be criminally prosecuted in connection with torture, and he refused to engage in torture and helped expose it in a 2007 ABC interview. One journalist
elaborated:
Brian Ross, who conducted the original ABC interview, later said it was critical to “shine some light on what was happening.” Kiriakou agreed. “We should be debating this,” he told Ross in 2007. “It shouldn't be secret. It should be out there as part of the national debate.”
The debate that did happen led to an uproar against torture and to President Obama’s formal ban on waterboarding in early 2009. While Kiriakou’s 2007 revelation was one of many in a series of scandals and conversations since September 11 regarding the use of torture, his disclosure was significant. Not only did he point to CIA leaders for directing harsh interrogation, he was one of the first in the CIA to come out against waterboarding, and to label it as torture.
Prosecuting whistleblowers like Kiriakou has far-reaching consequences far beyond the monumental injustice of Kiriakou being prosecuted while Fletcher enjoys his retirement.
In Kiriakou's case, Judge Leonie Brinkema recently rejected the defense's argument that the Espionage Act requires an intent to harm the U.S. or benefit a foreign nation despite the fact that law was intended to go after spies, and that Judge T.S. Ellis - from Brinkema's own district - grafted the intent requirement on to the Espionage Act in order to save the law's constitutionality. But that doesn't change the fact that - as with the other Espionage Act cases - journalists are caught in the cross-hairs. Josh Gerstein of POLITICO reports:
On Tuesday, Brinkema abruptly postponed a major motions hearing in the case set for Wednesday and a hearing set for Thursday on journalists' motions to quash subpoenas from the defense. She gave no reason for canceling the hearings.
The Washington Post's Julie Tate and freelancer Matt Cole are both fighting subpoenas served on them. A third subpoena, served on the New York Times's Scott Shane, was dropped, a New York Times spokeswoman confirmed Wednesday.
The Justice Department is using the Espionage Act as what
one defense attorney described as "a club" to silence whistleblowers:
“There’s a problem with prosecutions that don’t distinguish between bad people -- people who spy for other governments, people who sell secrets for money -- and people who are accused of having conversations and discussions,” said Abbe Lowell, attorney for Stephen J. Kim, an intelligence analyst charged under the Act.
The Justice Department canned response sounds pretty good at first blush:
The [Department of Justice] “does not target whistle-blowers in leak cases or any other cases,” Dean Boyd, a department spokesman, said.
“An individual in authorized possession of classified information has no authority or right to unilaterally determine that it should be made public or otherwise disclose it,” he said.
If Boyd's talking points were true, the Obama administration should never have prosecuted its first Espionage Act defendant,
Thomas Drake, who was not accused of disclosing any classified information and was undoubtedly a whistleblower. In fact, Drake disclosed massive fraud, waste, abuse, and illegality at the National Security Agency (NSA) through proper channels - to Congress and the Department of Defense Inspector General. The government then took his protected whistleblowing disclosures and used them against Drake in an Espionage Act prosecution. The case against Drake eventually collapsed under the weight of the truth.
Such deliberate use of the Espionage Act against an obvious whistleblower like Drake hardly support's Boyd's lame talking points. John Kiriakou is the new Tom Drake, and he is inches from jail while the CIA torturers are continuing their careers or enjoying their retirements.
Drake is rightfully free, but his prosecution sent a chilling message to the intelligence community. Dan Froomkin reported:
"It was very clear that they wanted to send the most chilling of messages, and that chilling message has been received," he said. Among former colleagues, Drake said, "there are those who will not talk to reporters—and we're not even talking leaking, we're just talking talking."
To support Kiriakou, go
here or "like" the
Defend John K Facebook Page.