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Josh Gerstein of Politico raises more questions about the Espionage Act case against Central Intelligence Agency (CIA) whistleblower John Kiriakou:

Two New York-based reporters, Matthew Cole and Richard Esposito, are among the journalists the government has alleged as being on the receiving end of leaks from Kiriakou, sources familiar with the case told POLITICO.

Cole, described in court papers as “Journalist A,” worked until earlier this year as a producer for ABC News’s investigative unit, but the alleged leaks to him took place before he joined ABC.
. . .
Cole’s alleged role is closer to the core of the case against Kiriakou and also raises questions about whether Cole, whose website indicates he was working on a book at the time, was straddling the line between traditional journalism and information gathering for lawyers representing Guantanamo detainees.

I also guest-posted for Glenn Greenwald's Salon column about the fact that not only do Espionage Act prosecutions have the effect of discouraging whistleblowers and drying up sources for the media, but journalists themselves are directly implicated:  
At first I thought Obama’s war on whistleblowers was meant to appease the intelligence establishment, which saw him as weak. I soon recognized this assault as a devious way to create bad precedent for going after journalists. All the Espionage Act cases involve allegations that the government employee “leaked” information (or retained information for the purpose of leaking it) to journalists.
Gerstein recognizes that the threat the Espionage Act prosecutions poses to journalists is more than simply drying up sources:
Under the Espionage Act, even private citizens who obtain classified information outside of official channels can be charged with disclosing it.
Obama's war on whisitleblowers is quietly becoming a war on the media. Without the media able to report both sides of the story, the only side the public will hear is that of the government, a dangerous prospect when a government agency is engaging in waste, fraud, abuse, illegality, torture, warrantless surveillance, assassination, etc.

As for Kiriakou, the sixth whistleblower the Obama administration has prosecuted under the draconian Espionage Act, I detailed the flimsy charges against him in Salon:


Kiriakou is charged with identifying a covert agent, three Espionage Act counts, and making a false statement, for which he faces 50 years in prison. In the government’s own words: “The charges result from an investigation that was triggered by a classified defense filing [by attorneys representing Guantánamo detainees], which contained classified information the defense had not been given through official government channels, and in part, by the discovery . . . of photographs of certain government employees and contractors in the materials of high-value detainees.” In other words, instead of investigating the government’s withholding of exculpatory information from Gitmo detainees’ lawyers, the government investigated how the lawyers obtained the information. And instead of investigating the approximately 70 names and 25 photos of the detainees’ alleged torturers, the government investigated how the prisoners found them out.

Count I accuses Kiriakou of allegedly confirming the name of an allegedly covert agent — even though the covert agent’s name has never been made public. Count II alleges that Kiriakou violated the Espionage Act by affirming the allegedly covert agent’s (the same one whose name has never been made public) involvement with the “Rendition, Detention and Interrogation Program.” Counts III and IV stem from Kiriakou’s alleged communications with New York Times reporter Scott Shane, for a story he wrote in 2008 and for which Shane had some 23 other sources.  Count V alleges that Kiriakou tried to trick the CIA, but failed, during the pre-publication review process for his book, “The Reluctant Spy: My Secret Life in the CIA’s War on Terror.” The Indictment leaves out that Kiriakou took the “trick” information out of his book, and that the CIA cleared Kiriakou’s book in its entirety. More likely, the government is actually upset that Kiriakou’s book sharply criticizes the CIA’s torture program and reveals embarrassing information about the FBI – namely that the FBI shelved potentially-actionable intelligence in the aftermath of 9/11.

Conviction or not, the Espionage Act prosecutions are meant to send a message to potential whistleblowers, a fact that the Justice Department readily admitted in the case against National Security Agency (NSA) whistleblower Thomas Drake.
The indictment of John Kiriakou, like that of Tom Drake, is meant to chill whistleblowers and the journalists who report their stories.  After the Justice Department’s case collapsed, Drake’s prosecutor requested at sentencing that the judge impose a steep fine of $50,000 “to send a message” to intelligence community employees “who live by these non-disclosure agreements.” (“Non-disclosure agreements” are not to be confused with Omertà-style loyalty oaths. Federal employees do take an oath: to the Constitution, not to the President, an Agency, a boss, or a broken classification system.) The judge gave Drake no fine, but the government’s desired message is especially odious because Drake and Kiriakou are the only people to be prosecuted in relation to two of the Bush administration’s biggest scandals—warrantless surveillance and torture. After being put through what a federal judge called “four years of hell,” Drake is out a career, a federal retirement package, and almost a hundred thousand dollars in attorneys’ fees. Kiriakou himself has also spent tens of thousands in attorneys’ fees and is struggling to raise the million dollars his defense is expected to cost. Intelligence community employees with mortgages and mouths to feed no doubt get the message.
As I keep saying, John Kiriakou is the new Tom Drake — an assessment with which Drake himself agrees. And the government’s latest dirty little secret?  For these heavy-handed, oh-so-serious, America-harming, foreign nation-benefitting Espionage Act charges, the government was willing to let Kiriakou plead guilty to a single felony with no jail time.  Desperate.
After the spectacular collapse of the case against Drake and all of these questions about the Kiriakou case within days of the indictment, it is no wonder the government was willing to let Kiriakou plead to a single felony with no jail time.

To support Kiriakou go here and "like" the Defend John K Facebook page.

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Comment Preferences

  •  Jesselyn, is there any circumstance in which... (2+ / 0-)
    Recommended by:
    ballerina X, Limelite

    ...a government employee may not disclose a given piece of information to a third party if he or she judges that it's in the public interest to do so?

    But nobody's buying flowers from the flower lady.

    by Rich in PA on Tue Apr 10, 2012 at 05:43:02 AM PDT

  •  War on whistle blowers becomes war on journalists (18+ / 0-)

    We already have a main stream media which is for the most part an arm of the corporations. They play a role in delivering junk food for the mind making it very difficult for citizens to know what is going on. (Are Americans able to understand and follow rational arguments anymore?)

    Now these actions using the Espionage Act are an attack on journalists as well.

    Other than legislators, president, vice president and courts, I think that journalism is the only profession mentioned in the constitution. The founders knew that it it was essential for independent journalists to expose waste, fraud and abuse and be a check on power.

    Now that this seems to be the plan backed by both political parties, it shows that the parties are in fact factions not dealing with the real issues of our democracy.

    •  The espionage act was passed by Congress. (5+ / 0-)

      If we don't want such laws to be passed, we need to elect different people to Congress.  Instead of paying attention to how much money they are able to beg from supporters, we should focus on their ability to respect human rights and provide for the general welfare.
      Don't blame the executive for carrying out the Congressional directives.
      The AUMF still hasn't been repealed.

      When we've got a Congress full of petty potentates who think depriving individuals of rights, then we can't expect the executive to practice restraint.  The unitary or imperial executive is not the result of legislators being coerced into rubber stamping a ukase.

      People to Wall Street: "LET OUR MONEY GO"

      by hannah on Tue Apr 10, 2012 at 05:52:19 AM PDT

      [ Parent ]

      •  Obama justice department bringing these cases (12+ / 0-)

        Yes, observers have noted that we have possibly the worse legislative branch in history.

        But who is pressing these cases using the Espionage Act?

        Several times the number of these cases in our history?

      •  The Espionage Act was enacted (22+ / 0-)

        in 1917 and intended to be used against spies, not whistleblowers. It is an archaic law ill-suited for targeting whistleblowers, and the Obama Justice Department has the discretion not to use it against employees who expose waste, fraud, abuse, or illegality.

        My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

        by Jesselyn Radack on Tue Apr 10, 2012 at 06:03:51 AM PDT

        [ Parent ]

        •  If this is "Change", I'd hate to see stasis (16+ / 0-)

          I'm having a hard time seeing major differences between the Mukasey DOJ and the Holder DOJ, esp in areas of executive power and civil liberties.  In hindsight, I was apparently naive to think that a POTUS who had taught Con Law would make a point of it to restore some balance after 8 years of widespread executive lawlessness.  Whatever happened to the concept of "looking forward not backward" w/ the likes of Drake and Kriakou?

          Some men see things as they are and ask why. I dream of things that never were and ask why not?

          by RFK Lives on Tue Apr 10, 2012 at 06:26:12 AM PDT

          [ Parent ]

          •  "Change" is value-neutral (16+ / 0-)

            "Hope" is aspirational, not concrete.

            We've been sold a bait-and-switch, no matter what the apologists say.

            When Free Speech is outlawed, only outlaws will have Free Speech.

            by Dallasdoc on Tue Apr 10, 2012 at 06:34:35 AM PDT

            [ Parent ]

          •  Bush/Cheney were not lawless in most (0+ / 0-)

            instances.  The only real violation I'm aware of was the reprogramming of money intended for Afghanistan to start planning the invasion of Iraq.  I think that was some $300 billion, but the Congress did not call them on it.
            Republicans aren't necessarily lazy.  They just do nothing unless prompted.  The Congress is supposed to be the prompter for the executive.  But, when there's a Republican in the White House they prefer not to be bothered with anything but assuring their own tenure in office and, when there's a Democrat in the White House, they prefer to obstruct.
            Democrats made a mistake letting 2010 be a throw-away election.  But then, there were no substantive issues to address until prior legislation got implemented.

            The 2012 election is different and Democrats had better stop nattering and letting themselves be distracted by the clowns.

            People to Wall Street: "LET OUR MONEY GO"

            by hannah on Tue Apr 10, 2012 at 09:41:59 AM PDT

            [ Parent ]

        •  If it's archaic would it not be better to (0+ / 0-)

          repeal it?

          Is the Republican House interested in waste, fraud and abuse?  Are hearings being held to initiate reforms?  Abuses never come to light until several years and audits have passed.  Until now it's been too soon to go after Obama appointees without exposing the mischief in the prior administration.
          Partisan interests do not do the citizens much good.

          We are electing the whole House and a third of the Senate this November.  How many more real issues do we need to make a change?
          You want Gitmo closed?  Elect a Congress that will agree to transfer the prisoners and pass them through the judicial system.  
          You want nuclear weapons reduced?  Elect a Congress that will appropriate funds for weapons decommissioning and disposal.
          You want children to have human rights?  Elect a Senate that will ratify the Convention on the Rights of the Child.

          The unitary executive is a con perpetrated by the Capitol Hill Gang to make it look like they aren't to blame for anything.

          How many times has the gang of eight met to be briefed on national security affairs?

          Why are whistleblowers turning to the press?  Because there's no proper Congressional over-sight.  We elect representatives as watch-dogs and then we let them bite the hand that feeds them.

          People to Wall Street: "LET OUR MONEY GO"

          by hannah on Tue Apr 10, 2012 at 09:33:39 AM PDT

          [ Parent ]

          •  There are also no meaningful protections (2+ / 0-)
            Recommended by:
            Preston S, aliasalias

            for most national security whistleblowers. Intelligence Community whistleblowers are exempt from the Whistleblower Protection Act, which itself needs reform.

            My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

            by Jesselyn Radack on Tue Apr 10, 2012 at 09:36:46 AM PDT

            [ Parent ]

            •  So, we're agreed -- it's a legislative problem. (0+ / 0-)

              When the wrong entity is tasked with solving a problem, the problem will not be solved.  Conservatives, who do not want problems to be solved because failure is their familiar and the guarantor of longevity in office for politicians, are very adept at laying blame elsewhere.  It's always the executive or the judiciary that's at fault, never the people who draft and pass the laws.
              Of course, since our current crop of Republicans are mostly scofflaws, they have an interest in seeing that the rules of society don't work.

              Don't send a scofflaw to write the laws.

              People to Wall Street: "LET OUR MONEY GO"

              by hannah on Tue Apr 10, 2012 at 10:06:54 AM PDT

              [ Parent ]

              •  The Justice Department (2+ / 0-)
                Recommended by:
                aliasalias, BradyB

                has discretion not to criminally prosecute whistleblowers, as evidenced from the fact that ALL past presidents combined brought half as many Espionage Act cases for alleged mishandling of classified information as Obama has brought in one term.

                My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

                by Jesselyn Radack on Tue Apr 10, 2012 at 11:59:03 AM PDT

                [ Parent ]

  •   help me out here (1+ / 0-)
    Recommended by:

    When Scooter Libby et al outs covert CIA operator Plame it's bad, but when Karikaiou outs covert CIA operators it's good because he confirmed the waterboarding torture (clearly good) by describing in first person an event he had to later confess that he wasn't even present and didn't actually witness ? (woops, lying bad) I'm not saying the waterboarding didn't happen it did, but Karikaiou clearly bruised his integrity by lying in his account of it. I fail to see how that inoculates him from getting in legal trouble for outing covert agents. Splain please, what am i missing ?

    •  Really? (12+ / 0-)

      Well, Scooter Libby outed a CIA agent in order to cover up a crime.  Namely, lying us into a war crime, in other words, aggressive war.  He took an oath to do the opposite.  

      Karikaiou (didn't actually out anyone) "outed" a CIA agent in order to protect and defend the constitution.   In other words, his highest duty, and one in which he took an oath.  

      That's the difference.  

      If you haven't earned my vote when the time comes, don't blame me when you lose.

      by Nada Lemming on Tue Apr 10, 2012 at 06:54:51 AM PDT

      [ Parent ]

    •  Leaking vs. Whistleblowing (6+ / 0-)

      I explained the difference in an L.A. Times op-ed after Drake was indicted:

      Unfortunately, the terms "leaking" and "whistle-blowing" are often used synonymously to describe the public disclosure of information that is otherwise secret. Both acts have the effect of damaging the subject of the revelation. But leaking is quite different from blowing the whistle. The difference turns on the substance of the information disclosed. The Whistleblower Protection Act protects the disclosure of information that a government employee reasonably believes evidences fraud, waste, abuse or a danger to public health or safety. But far too often, whistle-blowers are retaliated against, with criminal prosecution being one of the sharpest weapons in the government's arsenal.

      For example, Daniel Ellsberg, the patriarch of whistle-blowers in modern times, disclosed the Pentagon Papers, a secret government study of the Vietnam War, to the New York Times. The publication of the papers helped to end the Vietnam War. But Ellsberg was still prosecuted. Tamm revealed an indisputably illegal secret surveillance program, but he has been under criminal investigation since Dec. 30, 2005, a case that remains open. I am still under investigation by the Washington, D.C., bar after nearly seven years, despite the hypocrisy of the Justice Department in declining to prosecute — much less refer to licensing bars — the lawyers who wrote the torture memos related to detainees after 9/11.

      In contrast, when I. Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, unmasked covert CIA operative Valerie Plame, he was not trying to disclose evidence of wrongdoing; in fact, quite the opposite. He put at risk national security and people's lives to undermine a critic. He was trying to punish former Ambassador Joseph Wilson by outing his wife. Libby was leaking, not whistle-blowing. His disclosure to the media had no intrinsic public value whatsoever, and he was rightly prosecuted and convicted.

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Tue Apr 10, 2012 at 08:50:06 AM PDT

      [ Parent ]

  •  Recommend reading Jesselyn's column at (10+ / 0-)

    It is a much longer article than her diary.

    It shows her command of the issues and reasoning ability.

    Our democracy cannot survive if journalists are silenced.

    I would appreciate any replies to this column of politicians who are taking a strong stand against these acts of intimidation of people telling the truth.

    No fair to bring up Kucinich since he is now out of office.

  •  The Plame case may have opened (3+ / 0-)
    Recommended by:
    Citizenpower, Don midwest, Limelite

    Pandoras Box on this.  There are distinctions between that case and this one--important distinctions--but once the government started looking at the Espionage Act w/r/t Libby, Rove, Armitage and by extension their contacts in the media, well, we should have seen this coming.  

    Judy Miller actually went to jail over this.  She's a detestable aider and abetter of war crimes, but perhaps our lack of sympathy for her blinded us to the red flags a journalist in jail was running up the pole.

    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Tue Apr 10, 2012 at 07:29:39 AM PDT

    •  Please see above comment on (3+ / 0-)
      Recommended by:
      JVolvo, marina, aliasalias

      "leaking vs. whistleblowing."

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Tue Apr 10, 2012 at 08:51:04 AM PDT

      [ Parent ]

      •  Inherently subjective. (0+ / 0-)

        Leaks we like are whistleblowing, and those we dislike are criminal conduct.

        See, e.g., the diplomatic cables provided by Bradley Manning to Wikileaks.

        Legally, there is no way those cables (most of which Manning did not read) qualify for whistleblower protection.  

        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

        by Geekesque on Tue Apr 10, 2012 at 10:06:38 AM PDT

        [ Parent ]

        •  NOT subjective (2+ / 0-)
          Recommended by:
          BradyB, aliasalias

          Whistleblowing is defined in law. 5 U.S.C. Sec. 2302(b)(8)(A)

          . . . any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—
          (i) a violation of any law, rule, or regulation, or
          (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. . .

          My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

          by Jesselyn Radack on Tue Apr 10, 2012 at 11:28:03 AM PDT

          [ Parent ]

          •  You forgot this part. (0+ / 0-)
            if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
            Which pretty much excludes from the category of whistleblower anyone who leaks classified information.

            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

            by Geekesque on Tue Apr 10, 2012 at 11:40:23 AM PDT

            [ Parent ]

            •  Thomas Drake (1+ / 0-)
              Recommended by:

              was prosecuted under the Espionage Act even though he never disclosed classified information and wasn't charged with disclosing classified information.  

              And properly classified information does not include information classified to cover-up government wrongdoing. Executive Order on classification:

              Sec. 1.7.  Classification Prohibitions and Limitations.  
              (a)  In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
              (1)  conceal violations of law, inefficiency, or administrative error;

              (2)  prevent embarrassment to a person, organization, or agency;

              (3)  restrain competition; or

              (4)  prevent or delay the release of information that does not require protection in the interest of the national security.


              My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

              by Jesselyn Radack on Tue Apr 10, 2012 at 11:56:52 AM PDT

              [ Parent ]

              •  "properly classified" is a massively (0+ / 0-)

                subjective term which moreover does not appear in the whistleblower statute.

                Even then, there's no colorable argument that it's improper for diplomatic cables to be classified.

                "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                by Geekesque on Tue Apr 10, 2012 at 12:09:43 PM PDT

                [ Parent ]

                •  Again NOT subjective (1+ / 0-)
                  Recommended by:

                  Classification standards are spelled out in the Executive Order.

                  Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

                  (a)  military plans, weapons systems, or operations;

                  (b)  foreign government information;

                  (c)  intelligence activities (including covert action), intelligence sources or methods, or cryptology;

                  (d)  foreign relations or foreign activities of the United States, including confidential sources;

                  (e)  scientific, technological, or economic matters relating to the national security;

                  (f)  United States Government programs for safeguarding nuclear materials or facilities;

                  (g)  vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or

                  (h)  the development, production, or use of weapons of mass destruction.


                  My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

                  by Jesselyn Radack on Tue Apr 10, 2012 at 12:52:53 PM PDT

                  [ Parent ]

                  •  Okay, so you concede that Manning's (0+ / 0-)

                    leak of the diplomatic cable is legally outside the category of whistleblowing then and is legally a mere leak.

                    Because, under any objective reading, diplomatic cables are properly within the standards you just listed.

                    If you disagree, then it's subjective after all.

                    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                    by Geekesque on Tue Apr 10, 2012 at 12:59:08 PM PDT

                    [ Parent ]

  •  from your post at Salon (1+ / 0-)
    Recommended by:

    The law-breaking telecoms who received retroactive immunity from Congress, the interrogators who tortured prisoners, the officials who gave the orders, the attorneys who authored the torture memos, and the CIA agents who destroyed the interrogation tapes have not been held professionally accountable, much less been charged with crimes. National security and intelligence whistleblowers have become the glaring exception to the Obama administration’s mantra of “looking forward, not backward.” If you committed crimes under the guise of national security and the war on terrorism, you will not be held criminally liable, but if you blow the whistle on crimes, you risk criminal prosecution under the Espionage Act.
    (my emphasis)

    without the ants the rainforest dies

    by aliasalias on Tue Apr 10, 2012 at 01:27:13 PM PDT

  •  From the comments at Salon (1+ / 0-)
    Recommended by:
    For those of us who don't have legal experience or power, what tangible steps can we take to register our disgust with this war on whistle-blowers and support the people trying to make a difference?
    Kiriakou, Manning, and Kim all have legal defense funds/support networks:

    Bradley Manning Support Network:

    Stephen Kim Legal Defense Trust:

    John Kiriakou Legal Defense Fund:

    (And, totally self-interested, you can always fund the National Security & Human Rights Program, which is currently not independently funded, at the Government Accountability Project:

    And, separately, By Thomas Drake:
    [...] I was able to prevail against the government with criminal defense attorneys that made the prevailing case in the courtroom, a judge who took the executive branch to task and through Jesselyn Radack and her tireless advocacy, incredible media outreach, phenomenal support and superb legal acumen in the court of public opinion that became absolutely crucial and the saving grace in directly influencing the successful outcome and resolution of my case after I faced upwards of 35 years in prison from a 10 felony count indictment that utterly collapsed on the eve of my scheduled public trial.

    In going after whistleblowers, the government is engaged in a direct assault on the First Amendment (watch out with whom you associate and speak), as well as journalists and reporters by going after their sources in violation of the Fourth Amendment, and sending the most chilling of messages.

    This is also a thinly veiled attempt by the government to establish the equivalent of an [Official] Secrets Act to protect the burgeoning national security state - a state anathema to our Constitutional Republic - a Republic that increasingly exists in name only.

    What country do we want to keep?

    "...just ordinary people, you know, people who are not famous, if they get together, if they persist, if they defy the authorities, they can defeat the largest corporation in the world. - Howard Zinn

    by Sean X on Tue Apr 10, 2012 at 03:19:39 PM PDT

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