Online, Student Articles — October 7, 2012 at 11:00 am

John Kiriakou: Reckless Lawbreaker or Bold Whistleblower?

By Sara Slavin*

A November 26 trial date has been set in the case of former CIA officer John Kiriakou.  Kiriakou was indicted by the Department of Justice on April 5 for allegedly disclosing classified CIA information to journalists on multiple occasions. He had previously been charged in criminal complaint and arrested in January 2012.

Kiriakou has pleaded “not guilty” to all charges and, according to his lawyer, plans to fight the case. His upcoming trial is the latest episode in the downfall of a once highly-regarded anti-terrorism official. Kiriakou worked for the CIA from 1990 to 2004 and was based in Pakistan from 1998 to 2004. In March 2002, he was instrumental in capturing Abu Zubaydah, the first major al-Qaeda target that U.S. intelligence captured alive after the 9/11 attacks. Kiriakou described the capture of Zubaydah as “one of the brightest moments of [his] professional life” in the 2010 memoir that has now become a focal point in the government’s case again Kiriakou. Prior to publishing his memoir, Kiriakou openly expressed his views of the security situation in Afghanistan—characterizing the country as “plain and simple, a mess,” in 2007—and had also spoken out publicly against waterboarding, particularly in connection with the interrogation of Zubaydah. Although Kiriakou did not actually witness Zubaydah’s waterboarding, he described the CIA’s controversial interrogation techniques in some detail to the media.

The investigation against Kiriakou initially began with a 2009 Justice Department investigation of Guantanamo detainee lawyers whom the Justice Department believed were trying to identify CIA interrogators. Although these attorneys have now been cleared of any wrongdoing, the investigation led officials to Kiriakou. The January CIA complaint alleged that Kiriakou himself had revealed the identity of a CIA officer involved in the Zubaydah interrogation to a journalist, who had in turn revealed it to the Guantanamo defense team. The Justice Department investigation also found emails suggesting that Kiriakou was the source for a 2008 front-page New York Times article on the interrogation of Zubaydah.

The five-count indictment against Kiriakou charged him with violations of both the Intelligence Identities Protection Act (for allegedly revealing the identity of a covert agent) and the Espionage Act (for allegedly revealing national defense information to unauthorized individuals such as journalists). He was also charged with making false statements to the CIA about a book that he was seeking to publish. The indictment characterizes these statements as “an unsuccessful attempt to trick the CIA” into letting him publish classified information. If convicted on all charges, Kiriakou could face up to 45 years in prison.

Kiriakou’s indictment has garnered praise from U.S. officials, particularly those in the U.S. intelligence community. The Obama administration has used the charges against Kiriakou to reaffirm its commitment to protecting national security and holding individuals accountable for leaking sensitive information. Further, the administration’s crackdown appears to be a result, at least in part, of pressure from both parties in Congress to discipline government employees for unauthorized national security disclosures. Many former intelligence officials have also condemned Kiriakou’s alleged national security breaches, with one analyst characterizing his actions as “reprehensible” and “a betrayal of the trust the U.S. government placed in him.”

Many commentators, however, view the government’s actions with a critical eye.  At least one whistleblower advocacy organization, the Government Accountability Project, has recoiled at Kiriakou’s indictment. The organization’s national security and human rights director asserts that the Justice Department is targeting Kiriakou, at least in part, because he criticized the CIA’s “torture program.” One commentator has lamented that the Obama administration’s “selective prosecution” of Kiriakou will deter other government insiders from speaking out against perceived governmental wrongdoing.  Others have characterized Kiriakou’s prosecution as a “gross perversion of justice” given that the government has eschewed prosecution of CIA operatives who participated in torture sessions that resulted in the death of prisoners.

Kiriakou’s upcoming prosecution signals that the President is taking a tough stance against U.S. citizens who violate national security protocol. On the other hand, the government’s seemingly unprecedented use of the Espionage Act—which, prior to 2008, had only been invoked three times since 1917—sends a powerful message about the perils of government whistleblowing.  Kiriakou’s upcoming trial may begin to reveal whether the administration is mistakenly chasing admirable whistleblowers or is successfully taking critical steps to guarantee the secrecy of U.S. intelligence operations.

* J.D. candidate, Harvard Law School, 2013; A.B., Harvard College, 2007.

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