The latest unsealed court pleadings in the Espionage Act case against Central Intelligence Agency (CIA) whistleblower John Kiriakou reveal that Kiriakou's defense team has sought to subpoena journalists.
Steven Aftergood of Federation of American Scientists explained the pleadings, and he is right that the latest pleadings present "a new challenge to press independence." However, the subpoenas for journalist testimony are not the fault of Kiriakou, who revealed and opposed torture and will be awarded the Callaway Award for Civil Courage later this month. Rather, it is the government that indicted Kiriakou and put journalists at the center of the case. The indictment against Kiriakou specifically outlines alleged contacts Kiriakou had with journalists, and the most serious charges are based on information Kiriakou allegedly gave to journalists. Certainly Kiriakou's defense team is entitled to test those accusations.
Josh Gerstein of Politico (who reported on one journalist's (Matthew Cole) shady-sounding involvement in April) had an astute observation on the subpoenas:
It's unclear precisely what information the defense is seeking from the journalists, but it may be seeking to demonstrate that some of the information the government contends it was making efforts to keep secret was in fact being circulated outside the government.Kevin Gosztola of FireDogLake pointed out how the government's putting journalists at issue forced Kiriakou to subpoena the journalists to defend himself against a criminal indictment that threatens decades in prison:
The government makes references to these three journalists in their indictment against Kiriakou, but they have refused to seek testimony from the journalists. This puts Kiriakou and his defense in a position where they can either request depositions and appear to be attacking freedom of the press or they can choose to not seek any more information on the journalists and the information, which the government is believed to be using for prosecution.UPDATE: Marcy Wheeler just published some must-read insights on the Kiriakou case:
So Fitzgerald structured this case so as to avoid mentioning–much less admitting–that at its root lies a bunch of men guilty of torture. At its root lies the effort to hide the identity of torturers, and CIA’s efforts to punish those who brought that to light. If I’m right, and Tate is in that chain of people who exposed the identity of some torturers, then that’s part of what Kiriakou’s after: to show that he was simply involved in an effort to expose torturers. A whistleblower. . . . the Tate and Cole subpoenas sure seem like an effort to put the real lawbreakers–the torturers–back in the forefront of this case.(Emphasis in original).
Kiriakou's is not the only case where the Obama administration's war on whistleblowers has caught journalists in the cross-hairs. All of the Obama administration's record-breaking Espionage Act prosecutions put journalists and press freedom at risk, and, as I've written previously, serve as a back door for going after journalists and suppressing press freedom.
All the Espionage Act cases involve allegations that the government employee “leaked” information (or retained information for the purpose of leaking it) to journalists.It was surreal moment in the Drake case when the government moved to exclude from the trial any mention of "published newspaper articles" after having specifically referenced the articles in the indictment. The Judge correctly denied the government's request, inquiring as to how the government planned to prove the indictment without discussing the articles the government itself brought into play. In case against Drake there was no need to go down what the judge called the "deep dark hole" of subpoenaing reporters. But, then, despite the indictment's salacious narrative, Drake was never accused of actually disclosing classified information to a journalist, only with retention.
The government’s spectacularly failed case against NSA whistleblower Tom Drake claimed that he allegedly retained allegedly classified information for the purpose of leaking it to Siobhan Gorman, then with the Baltimore Sun. It turned out that he disclosed unclassified information about a failed and wasteful (multi-billion dollar) NSA spy program that compromised Americans’ privacy. FBI translator Shamai Liebowitz pleaded guilty to leaking information to a blogger. Leibowitz made his disclosure because of an all-too-real fear that Israel might strike nuclear facilities in Iran, a move he saw as potentially disastrous. State Department arms expert Steven Kim is accused of leaking to Fox News that North Korea was planning to respond to a U.N. Security Council resolution by setting off another nuclear test — surely of public interest to China and South Korea. And, of course, Army Private Bradley Manning is accused of leaking to WikiLeaks.
If the government wants to protect press freedom, it should stop using journalists' work as the basis for Espionage Act cases. One blindingly obvious solution would be for the Justice Department to use the Espionage Act as it was intended - to go after spies, not whistleblowers.
Lest we forget what's at stake in Kiriakou's case: Kiriakou appeared on ABC News in 2007 and became the first former CIA officer to call waterboarding torture. He said the U.S. should not engage in waterboarding and helped expose the G.W. Bush-era torture program as the policy it was, rather than the work a few rogue agents. He wrote a book that exposed deception leading up to the war in Iraq, the CIA's torture program, and the FBI bungling potentially valuable evidence after 9/11. And, Kiriakou is the only person to be criminally prosecuted in relation to the Bush-era torture program.
Attorney General Holder just recently foreclosed the last hope of prosecution for anyone who ordered torture, orchestrated the torture program, wrote the legal justifications for torture, or actually tortured prisoners. Another easy way to solve the problem of threats to free press: the Justice Department could focus its considerable taxpayer-funded resources on prosecuting people who tortured prisoners, rather than the whistleblower who exposed torture.