Will Michael Vickers Now Be Subjected to Forced Nudity?

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If you’ve been following the Bradley Manning case at all, you know the government treats alleged leakers by inventing reasons to take away their clothes away.

So I wonder whether they’ll now subject Undersecretary of Intelligence Michael Vickers–who, DOD’s Inspector General has determined, provided the identity of a Special Operations planner to the makers of Zero Dark Thirty.

Pentagon investigators concluded that a senior Defense Department official who’s been mentioned as a possible candidate to be the next CIA director leaked restricted information to the makers of an acclaimed film about the hunt for Osama bin Laden, and referred the case to the Justice Department, according to knowledgeable U.S. officials.

[snip]

The case involved a determination by investigators of the Pentagon’s inspector general’s office that Vickers provided the makers of the film “Zero Dark Thirty” with the restricted name of a U.S. Special Operations Command officer who helped plan the May 2, 2011, raid on bin Laden’s hideout in Pakistan, one official said.

Though perhaps the best comparison is not between Vickers and Manning, but between Vickers and Kiriakou. Both, after all, gave the name of someone who might not be all that protected to a third party so they could conduct further investigation. With both, the name did not become public via this leak.

And John Kiriakou’s headed to prison.

There’s little chance Vickers will experience a similar fate as Kiriakou though. As McClatchy notes, the Administration has already declassified a report showing Vickers providing this name. DOJ has been sitting on the referral since September. And McClatchy’s sources are discussing how this will affect Vickers’ chances of becoming CIA Director, not whether anything worse will happen.

Even Peter King, who demanded the investigation in the first place, does not want an indictment, but appears to prefer instead to politicize the fact that he hasn’t been told about Vickers’ role.

King told McClatchy that the delay in notifying him “raises the question” of whether officials were trying to put it off for political reasons, but he wanted to see the full report before drawing any conclusions.

“I’m not looking for anyone to be indicted,” he said. “But the IG does not make referrals to the Justice Department as a matter of routine. To me the fact that any information at all would be given to Hollywood producers by this administration is disgraceful.”

“If it’s wrong enough or questionable enough for the IG to refer it to the Justice Department, that means it shouldn’t have been done.” [my emphasis]

Yes, I imagine Peter King wouldn’t want to encourage top people being indicted for leaking classified information…

Which demonstrates, once again, what our classification system really is. It is not a law, to be applied neutrally to all. On the contrary, it is applied selectively, used primarily as a threat tied to higher wages tied to a clearances, but on occasion, as the premise to punish those who deviate from NatSec orthodoxy.

Update: This post originally stated Kiriakou was already in prison. He’s not. As Thomas Drake corrected me, he’s scheduled to be sentenced next month.

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Zero Dark 30 “Heroine” Outed and Scarred By European Torture Judgment

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[SEE CRITICAL UPDATE BELOW]

Although many people have been long familiar with her name and career, there seems to be new buzz about the [possible] identity of the female CIA operative lionized in the bin Laden killing and talk of the town movie “Zero Dark Thirty“.

The Twitters are abuzz this morning, but this article from John Cook at Gawker last September tells the tale:

Her name is Alfreda Frances Bikowsky and, according to independent reporters Ray Nowosielski and John Duffy, she is a CIA analyst who is partially responsible for intelligence lapses that led to 9/11. The two reporters recently released a “documentary podcast” called “Who Is Richard Blee?” about the chief of the agency’s bin Laden unit in the immediate run-up to the 9/11 attacks and featuring interviews with former counterterrorism official Richard Clarke, former CIA agent Bob Baer, Looming Tower author Lawrence Wright, 9/11 Commission co-chairman Tom Keane, and others. In it, Nowosielski and Duffy make the case that Bikowsky and another CIA agent named Michael Anne Casey deliberately declined to tell the White House and the FBI that Khalid al-Mihdhar, an Al Qaida affiliate they were tracking, had obtained a visa to enter the U.S. in the summer of 2001. Al-Mihdhar was one of the hijackers on American Airlines Flight 77. The CIA lost track of him after he entered the U.S.

Bikowsky was also, according to Nowosielski and Duffy, instrumentally involved in one of the CIA’s most notorious fuck-ups—the kidnapping, drugging, sodomizing, and torture of Khalid El-Masri in 2003 (El-Masri turned out to be the wrong guy, and had nothing to do with terrorism). As the Associated Press’ Adam Goldman and Matt Apuzzo reported earlier this year, an analyst they described only by her middle name—”Frances”—pressed for El-Masri to be abducted even though some in the agency weren’t convinced he was the terrorist that Frances suspected he was. Instead of being punished or fired for the error, “Frances” was eventually promoted to running the Global Jihad Unit by then-CIA director Michael Hayden. According to Goldman and Apuzzo’s story, “Hayden told colleagues that he gave Frances a pass because he didn’t want to deter initiative within the counterterrorism ranks.”

My, my, the CIA does have problems keeping secrets lately, don’t they? A point saliently noted by Marcy in relation to both Matt Bissonnette and the Mexican “trainers” who were involved in in an ambush. I guess the de rigueur Obama Administration leak prosecution will be along any second.

It is fairly amazing Bikowsky’s name has been kept out of the real limelight surrounding [speculation on] Zero Dark Thirty this long, considering her known involvement in the other issues, especially the one about gleefully horning in on the torture show viewing [which Bikowsky did in regards to KSM]. An attitude that speaks volumes as to Read more →

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Confirmed: Dutch Ruppersberger, NSA Intercepts, and Deep Hypocrisy on Leaks

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WSJ has a tick-tock of how the talking points on Benghazi developed. It confirms two of the things I noted yesterday. The Intelligence Community developed the talking points behind the pseudo-scandal pursuant to a request from Dutch Ruppersberger.

Later on Sept. 13, then-director David Petraeus presented the CIA’s initial findings to the Senate Intelligence Committee. His conclusions mirrored that morning’s intelligence reporting. He said the attack began “spontaneously” following the protest in Cairo over the video. He also discussed the reports of involvement of Ansar al-Sharia and the al Qaeda affiliate and called the assault a terrorist attack.

Mr. Petraeus presented the same findings the next day to the House intelligence panel, whose top Democrat, Maryland Rep. C.A. “Dutch” Ruppersberger, requested unclassified talking points for lawmakers to use when speaking about the attack.

And the IC decide to withhold the information about a tie to AQIM in part because they were NSA intercepts.

After rounds of bureaucratic exchanges, the CIA officials seeking to remove al Qaeda won the argument, and officials agreed to retain the umbrella term “extremists” but drop the mention of al Qaeda.

The term represented a hedge the CIA used because the attack’s links to al Qaeda had yet to be confirmed. This argument was that including the name would have required additional wording to indicate uncertainty about the al Qaeda links—language that could have opened additional avenues for misinterpretation.

The information was derived from what was seen as a “tenuous” source—intercepts of phone calls between suspected militants saying that al Qaeda-linked militants took part in the attack. The evidence was deemed by some of the intelligence officials to be inconclusive.

Eliminating references to al Qaeda also would protect sources, some of the officials argued. With so few suspected al Qaeda-affiliated militants taking part in the attacks, officials were concerned that fingering al Qaeda in official information would tip them off that they were being monitored. Read more →

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When Overseers Become Talking Heads

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The entire Benghazi pseudo-scandal can reportedly be traced back to House Intelligence Committee Ranking Member Dutch Ruppersberger’s request for talking points he could use to respond to journalists.

Three days after the lethal attack on the American Mission in Benghazi, Libya, Representative C. A. Dutch Ruppersberger of Maryland, the top Democrat on the House Intelligence Committee, asked intelligence agencies to write up some unclassified talking points on the episode. Reporters were besieging him and other legislators for comment, and he did not want to misstate facts or disclose classified information.

More than 10 weeks later, the four pallid sentences that intelligence analysts cautiously delivered are the unlikely center of a quintessential Washington drama, in which a genuine tragedy has been fed into the meat grinder of election-year politics.

Before I get too far, remember that Ruppersberger (D-NSA) is one of the geniuses who believe the way to stem leaks is to prevent intelligence professionals from giving background briefings. Remember, too, that the talking points that have caused so much trouble were almost certainly tweaked to protect the intercepts Ruppersberger’s constituent, the NSA, had collected. Nevertheless, this guy, who presumably supports the principle of not telling militants we’ve got their phone tapped, and who thinks people with a more developed understanding of sensitivities around intelligence should not be able to brief the press directly, had to have his talking points so he could talk to the press himself.

Ruppersberger’s inconsistency on this point reminded me that after the super secret drone killing of some American citizens last year, the Gang of Four all weighed in to assure Americans that Anwar al-Awlaki’s death was “legitimate” because there had been “a process.” The Gang’s loquacity contrasted sharply with the Administration’s silence on the very same issue, one reiterated since in the Administration’s Glomar claims about topics the Gang of Four feels welcome to discuss. That contrast is all the more troubling given that Ruppersberger admitted that the Gang of Four does not know who is on the Kill List (and therefore didn’t really know whether the killing of Samir Khan was “legitimate”).

It’s all very neat. Not only does the Gang of Four enjoy immunity from prosecution under the Speech or Debate Clause. But they were–and presumably are–serving as journalistic sources on topics about which they aren’t (though legally should be) fully informed.

Last week Julian Sanchez and Mike Masnick rehashed an earlier version of this, when the Bush Administration armed the Intelligence Committees with talking points that would reinforce their lies that the Terrorist Surveillance Program constituted the entirety of the illegal wiretap program.

Note what that does to the whole question of “legitimacy.” The Gang of Four only knows what Administration and agency officials tell them.  Yet, even in spite of potential and real limits to their knowledge of a program (and a history of deliberately misleading briefings on such topics), they will weigh in and declare something “legitimate.”

We have a problem in this country with the way our intelligence community communicates publicly (see Dan Drezner and Nada Bakos addressing different aspects of this problem.)

But the solution clearly is not the one the national security establishment increasingly appears to be adopting: to turn the four men and women who purportedly exercise the only oversight of the most sensitive programs into talking heads. That process almost certainly ensures incomplete briefing of these “overseers.” Worse, still, it guarantees a kind of complicity that makes the overseers-turned-talking-heads useless for oversight.

WIth their push to limit background briefings, the Gang of Four have raised their own stock as journalistic sources. But they’ve also further gutted the inadequate oversight we’ve got over intelligence.

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General Dynamics: The Digital Tale of John & Jill and Dave & Paula

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DO YOU KNOW THE WAY TO TAMPA BAY??

Another giant shoe has dropped in L’Affaire Petraeus. Not simply more specifics, but yet another General:

Gen. John Allen, the top American and NATO commander in Afghanistan, is under investigation for what a senior defense official said early Tuesday was “inappropriate communication’’ with Jill Kelley, the woman in Tampa who was seen as a rival for David H. Petraeus’s attentions by Paula Broadwell, the woman who had an extramarital affair with Mr. Petraeus.

In a statement released to reporters on his plane en route to Australia early Tuesday, Defense Secretary Leon E. Panetta said that the F.B.I. had informed him on Sunday of its investigation of General Allen.

Mr. Panetta turned the matter over to the Pentagon’s inspector general to conduct its own investigation into what the defense official said were 20,000 to 30,000 pages of documents, many of them e-mails between General Allen and Ms. Kelley, who is married with children.

Really, at this point, what can you even say about the secret storm soap opera that roils within the rarified brass air of the US Military? This was just the last hit for a night that saw the emergence of the Shirtless FBI Guy (now under investigation himself by the Office of Professional Responsibility at DOJ) to a nightime search of Paula Broadwell’s home by the FBI.

There are too many tentacles, evolving too quickly, to go too deep on all the facts that have rolled out even in the last twelve hours. But the General Allen/Jill Kelley bit is fascinating. Remember, the handful of emails Paula Broadwell sent to Kelley reportedly did not mention Petraeus by name. This latest report at least raises the possibility Broadwell was referring to an inappropriate relationship between Kelley and Allen, and not Kelley and Petraeus. I am not saying such is Read more →

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Petraeus Knew of FBI Investigation During Benghazi Pushback

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I’m supposed to be packing to move today, so I may not get to my post on how Big Brother and the Obama Administration’s assault on leakers doomed Petraeus’ career (though Josh Gerstein and Jesselyn Raddack hit on some of the issues).

For now, though, I’d like to make a very narrow point. According to the NYT’s reporting, the FBI spoke to Petraeus about their investigation of his mistress Paula Broadwell–and other issues–two weeks ago.

Government officials said that the F.B.I. began an investigation into a “potential criminal matter” several months ago that was not focused on Mr. Petraeus. In the course of their inquiry into whether a computer used by Mr. Petraeus had been compromised, agents discovered evidence of the relationship as well as other security concerns. About two weeks ago, F.B.I. agents met with Mr. Petraeus to discuss the investigation. [my emphasis]

So while the White House purportedly didn’t find out about this until Wednesday, Petraeus found out about it around October 25 or 26. That would put it well before the CIA’s pushback campaign on Benghazi–both the CIA rebuttal to Fox’s reporting that CIA security people at the annex did not respond right away to the attack on the mission, and, more interestingly, the 1,500 word requiem for Petraeus’ untainted image in the NYT. And while Petraeus’ aides seem to have orchestrated that media barrage, what are probably the same aides have been chatting freely albeit anonymously in the last day.

To be clear, I’m not saying that means Petraeus’ resignation was about Benghazi. I think it’s possible, but some reporters I trust insist it’s not.

But consider how different this passage from the NYT reads when you understand that Petraeus had already learned the FBI had discovered his former mistress may have been snooping through his emails–not to mention months of his emailed pleas to her to get back together.

Mr. Petraeus’s future has inevitably been the subject of rumors: that he would be Mitt Romney’s running mate, or, more plausibly, that he was interested in the presidency of Princeton. In a statement in late September, he did not rule that out for the future, but said that for the time being he was “living the dream here at C.I.A.” That was before the recriminations this week over Benghazi.

In late September–after Benghazi, mind you, but before he realized this affair had been exposed–Petraeus was still thinking about leading Princeton. But then “recriminations” jeopardized that hope.

The CIA blitz was certainly an attempt to minimize Petraeus’ and CIA’s role in getting an Ambassador killed. But it also reads, now, like an effort to preempt the damage from this.

One more note: the timing appears to be that the affair lasted for some of the period when Petraeus was in Afghanistan–so June 2010 to June 2011. It’s unclear whether the affair continued after Petraeus started at CIA in June 2011–though he did keep emailing Broadwell to try to get her to get back together. The NYT says the investigation started only  several months ago.

While that suggests the investigation may have been a counter-cyber investigation rather than a counter-intelligence investigation–an investigation into whether the Chinese had hacked his computer rather than an investigation targeting Broadwell from the start–the timing would coincide with the leak witch hunts launched by Congress. I would laugh my ass off if the same members of Congress who are bemoaning the loss of Petraeus now somehow led to this investigation with their earlier demands for leak investigations targeted at top Administration officials. Imagine how funny it’d be if in their search for blood, Congress ended up killing the career of the one person they all believed was above reproach?

Update: WSJ provides a different timeline, saying the affair started after he left the military and ended months ago, while the investigation started in the spring.

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Michael Hayden, Privacy and Counterterrorism Frugality Champion

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Of 1,423 words in an article questioning whether deficit hawkery might cut the domestic spying budget, Scott Shane devotes over a sixth–roughly 260–describing what former NSA and CIA Director Michael Hayden thinks about the balances between funding and security.

Remarkably, none of those 260 words disclose that Hayden works for Michael Chertoff’s consulting group, which profits off of big domestic spying. This, in an article that cites Chertoff’s electronic border fence among the expensive counterterrorism duds that were subsequently shut down (Shane mentions “puffer” machines as well, but not the Rapiscan machines that Chertoff’s group lobbied for, which are now being withdrawn as well).

And then there’s a passage of Shane’s article that touches on topics in which Hayden’s own past actions deserve disclosure.

Like other intelligence officials after 2001, Mr. Hayden was whipsawed by public wrath: first, for failing to prevent the Sept. 11 attacks, and then, a few years later, for having permitted the National Security Agency to eavesdrop on terrorism suspects in the United States without court approval.

Perhaps, as a result, he often says that the American people need to instruct the government on where to draw the line. He told an audience at the University of Michigan last month, for instance, that while a plot on the scale of the Sept. 11 attacks was highly unlikely, smaller terrorist strikes, like the shootings by an Army psychiatrist at Fort Hood in Texas in 2009, could not always be stopped.

“I can actually work to make this less likely than it is today,” Mr. Hayden said. “But the question I have for you is: What of your privacy, what of your convenience, what of your commerce do you want to give up?”

To be fair, Shane counters Hayden’s claims by noting that “secrecy … makes it tough for any citizen to assess counterterrorism programs.”

But he doesn’t mention one of the biggest examples where Hayden–where anyone–chose both the most expensive and most privacy invasive technology: the wiretap program Hayden outsourced to SAIC rather than use in-house solutions.

As Thomas Drake has made clear, by outsourcing to SAIC, Hayden spent 300 times as much as he would have with the in-house solution.

One of them was Lieutenant General Michael Hayden, the head of the agency: he wanted to transform the agency and launched a massive modernization program, code named: “Trailblazer.” It was supposed to do what Thin Thread did, and more.

Trailblazer would be the NSA’s biggest project. Hayden’s philosophy was to let private industry do the job. Enormous deals were signed with defense contractors. [Bill] Binney’s Thin Thread program cost $3 million; Trailblazer would run more than $1 billion and take years to develop.

“Do you have any idea why General Hayden decided to go with Trailblazer as opposed to Thin Thread, which already existed?” Pelley asked.

[snip]

Asked to elaborate, Drake said, “Careers are built on projects and programs. The bigger, the better their career.” [my emphasis]

Along the way, Hayden repeatedly blew off Congressional staffer Diane Roark’s inquiries about privacy protection.

When Binney heard the rumors, he was convinced that the new domestic-surveillance program employed components of ThinThread: a bastardized version, stripped of privacy controls. “It was my brainchild,” he said. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.” He said that although he was not “read in” to the new secret surveillance program, “my people were brought in, and they told me, ‘Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers’ ”—logs of dialled phone numbers—“ ‘on everyone in the country!’ ”

[snip]

[Former HPSCI staffer Diane Roark] asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not. [my emphasis]

So it’s not just disclosure of all the ways Hayden has and does profit off of continued bloated domestic surveillance that Shane owes his readers: he also should refute Hayden’s claims about the relationship between cost, privacy, and efficacy.

Michael Hayden’s SAIC-NSA boondoggle is one case where secrecy no longer hides how much money was wasted for unnecessary privacy violations.

Yet somehow, that spectacular example of the unnecessary waste in domestic spying doesn’t make it into the 260 words granted to Hayden to argue we need continued inflated spending.

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Remember Larry Franklin…

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I’m not a fan at all of what Larry Franklin did–leaking documents to help drum up a more hawkish policy on Iran.

But amid the news that John Kiriakou’s lawyer, Plato Cacheris, has docketed a change of plea hearing today at 11, it’s worth reviewing what happened with Franklin. After he was charged, the government put a lot of pressure on Franklin and his family (as they have with Kiriakou) and got him to plead guilty, with Cacheris’ advice. He was given a 10 year sentence.

Then the men he leaked to–Steven Rosen and Keith Weissman, with the counsel of Abbe Lowell–started questioning the very premise of the case. First, they prepared to call top officials, including Condi Rice, to demonstrate that they, too, leak classified information all the time. Then, the judge in the case, Thomas Ellis, ruled that they could not be charged for espionage if they didn’t have the intent to harm the US. It was the reverse of that ruling–Leonie Brinkema’s ruling that because Kiriakou was a government employee and therefore intent to harm the US didn’t matter–that led Kiriakou’s lawyers to rush to plead guilty.

But here’s the interesting thing.

After the government’s case against Rosen and Weissman fell apart, the judge then push to re-sentence Franklin. Ultimately, he was sentenced to 10 months of house arrest.

Now, I’m not saying that could happen with Kiriakou. According to Jesselyn Raddack, he will take the plea, and he will serve 2.5 years in prison.

And the cases are not parallel: while top Administration officials leak classified information to the press all the time, only Dick Cheney and Scooter Libby spend their time outing spies (though I still suspect Matt Bissonnette’s identity was confirmed by Pentagon sources).

But the government does continue to give its spooks fairly transparent covers, as was demonstrated when “Stan Dove Boss” got ambushed by cops tied to a drug cartel in Mexico, not to mention the entire CIA annex that militia members seemed well aware of in Benghazi. There was, certainly, the possibility that this case would have demonstrated how cavalierly the CIA had sent its kidnappers and torturers around the world with big expense account. And that, in turn, would demonstrate that the issue is not whether we–or al Qaeda–can learn the identities of the torturers, but whether citizens and journalists can speak of the torturers by name.

In any case, these cases are increasingly about whether or not the government will continue to use clearances and secrecy to set up a two-class society: those whose livelihood depends on complete obedience to the government’s asymmetric use of information, and those outside of that club who are not trusted with the truth about what our country does.

John Kiriakou’s plea deal is not only another victory in the Obama Administration’s cover-up of torture. But it’s also a win for the people who believe the citizens of this democracy are not entitled to know what is being done in their name.

Update: It’s done. Another DOJ win in protecting torturers.

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The US Attorney for CIA Scrambles to Cover-Up CIA’s Torture, Again

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Bmaz just wrote a long post talking about the dilemma John Kiriakou faces as the government and his defense lawyers attempt to get him to accept a plea deal rather than go to trial for leaking the names of people–Thomas Donahue Fletcher and Deuce Martinez–associated with the torture program.

I’d like to look at four more aspects of this case:

  • The timing of this plea deal–reflecting a realization on the part of DOJ that their efforts to shield Fletcher would fail
  • CIA’s demand for a head
  • The improper cession of a special counsel investigation to the US Attorney for Eastern Virginia
  • The ongoing efforts to cover-up torture

The timing of the plea deal

Intelligence Identities Protection Act cases will always be risky to bring. By trying someone for leaking a CIA Agent’s identity, you call more attention to that identity. You risk exposing sources and methods in the course of proving the purportedly covert agent was really covert. And–as the case against Scooter Libby proved–IIPA often requires the testimony of spooks who lie to protect their own secrets.

There is a tremendous irony about this case in that John Kiriakou’s testimony in the Libby case would have gone a long way to prove that Libby knew Valerie Plame was covert when he started leaking her name, but now-Assistant Attorney General Lanny Breuer talked Patrick Fitzgerald out of having Kiriakou testify. Small world.

Bmaz notes that the docket suggests the rush to make a plea deal came after Leonie Brinkema ruled, on October 16, that the government didn’t need to prove Kiriakou intended to damage the country by leaking the names of a bunch of torturers. That ruling effectively made it difficult for Kiriakou to prove he was whistleblowing, by helping lawyers defending those who have been tortured figure out who the torturers were.

But the rush for a plea deal also comes after Matthew Cole and Julie Tate filed initial responses to Kiriakou’s subpoena on October 11. And after the government filed a sealed supplement to their CIPA motion that same day.

While both Cole and Tate argued that if they testified they’d have to reveal their confidential sources, Tate also had this to say in her declaration.

In 2008, my colleagues and I were investigating the CIA’s counterterrorism program now known as Rendition, Detention and Interrogation Program” (the “RDI Program”).

[snip]

I understand that defense counsel has subpoenaed me to testify about the methods I may have used to obtain the identity of CIA officers during 2008 while I was researching the RDI program.

Tate doesn’t say it explicitly, but it’s fairly clear she was able to get the identity of CIA officers involved in the torture program. Her use of the plural suggests she may have been able to get the identity of more than just Thomas Fletcher and Deuce Martinez. And she says she would have to reveal the research methods by which she was able to identify CIA officers who were supposedly covert.

Read more →

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The Kiriakou Conundrum: To Plea Or Not To Plea

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There are many symbols emblematic of the battle between the American citizenry and the government of the United States in the war of transparency. One of those involves John Kiriakou. Say what you will about John Kiriakou’s entrance into the public conscience on the issue of torture, he made a splash and did what all too few had, or have since, been willing to do. John Kiriakou is the antithesis of the preening torture monger apologist in sullen “big boy pants”, Jose Rodriquez.

And, so, people like Kiriakou must be punished. Not by the national security bullies of the Bush/Cheney regime who were castigated and repudiated by an electorate who spoke. No, the hunting is, instead, by the projected agent of “change”, Barack Obama. You expect there to be some difference between a man as candidate and a man governing; the shock comes when the man and message is the diametric opposite of that which he sold. And, in the sling of such politics, lies the life and fate of John Kiriakou.

Why is the story of John Kiriakou raised on this fine Saturday? Because as Charlie Savage described, Kiriakou has tread the “Path From Terrorist Hunter to Defendant”. Today it is a path far removed from the constant political trolling of the Benghazi incident, and constant sturm and drang of the electoral polling horserace. It is a critical path of precedent in the history of American jurisprudence, and is playing out with nary a recognition or discussion. A tree is falling in the forrest and the sound is not being heard.

You may have read about the negative ruling on the critical issue of “intent to harm” made in the federal prosecution of Kiriakou in the Eastern District of Virginia (EDVA) last Tuesday. As Josh Gerstein described:

Prosecutors pursuing former CIA officer John Kiriakou for allegedly leaking the identities of two other CIA officers involved in interrogating terror suspects need not prove that Kiriakou intended to harm the United States or help a foreign nation, a federal judge ruled in an opinion made public Wednesday.

The ruling from U.S. District Court Judge Leonie Brinkema is a defeat for Kiriakou’s defense, which asked the judge to insist on the stronger level of proof — which most likely would have been very difficult for the government to muster.

In 2006, another federal judge in the same Northern Virginia courthouse, T.S. Ellis, imposed the higher requirement in a criminal case against two former lobbyists for the American Israel Public Affairs Committee.

However, Brinkema said that situation was not parallel to that of Kiriakou, since he is accused of relaying information he learned as a CIA officer and the AIPAC staffers were not in the government at the time they were alleged to have received and passed on classified information.

“Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed. Accordingly, there can be no question that Kiriakou was on clear notice of the illegality of his alleged communications.

Gerstein has summarized the hard news of the court ruling admirably, but there is a further story behind the sterile facts. By ruling the crucial issue of “intent” need not be proven by the accusing government, the court has literally removed a critical element of the charge and deemed it outside of the due process proof requirement, much less that of proof beyond a reasonable doubt.

What does that mean? In a criminal prosecution, it means everything. It IS the ballgame.

And so it is here in the case of United States v. John Kiriakou. I am going to go a little further than Gerstein really could in his report, because I have the luxury of speculation. As Josh mentioned:

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.

HELLO! That little tidbit is the everything of the story. I flat out guarantee the import of that is the court put the brakes on the entire case as a resultnof an off the record joint request of the parties to facilitate immediate plea negotiation. As in they are doing it as you read this.

There is simply no other reason for the court to suspend already docketed process and procedure in a significant case, much less do so without a formal motion to extend, whether by one party or jointly. That just does not happen. Well, it does not happen unless both parties talked to the court and avowed a plea was underway and they just needed the time to negotiate the details.

So, what does this mean for John Kiriakou? Nothing good, at best. Upon information and belief, Kiriakou was offered a plea to one count of false statements and no jail/prison time by the original specially designated lead prosecutor, Pat Fitzgerald. But the “word on the street” now is that, because the government’s sheriff has changed and, apparently, because Kiriakou made an effort to defend himself, the ante has been ridiculously upped.

What I hear is the current offer is plead to IIPA and two plus years prison. This for a man who has already been broken, and whose family has been crucified (Kiriakou’s wife also worked for the Agency, but has been terminated and had her security clearance revoked). Blood out of turnips is now what the “most transparent administration in history” demands.

It is a malicious and unnecessary demand. The man, his family, and existence are destroyed already. What the government really wants is definable precedent on the IIPA because, well, there is not squat for such historically, and the “most transparent administration in history” wants yet another, larger, bludgeon with which to beat the baby harp seals of whistleblowing. And so they act.

To date, there have been no reported cases interpreting the Intelligence Identities Protection Act (IIPA), but it did result in one conviction in 1985 pursuant to a guilty plea. In that case, Sharon Scranage, a former CIA clerk, pleaded guilty for providing classified information regarding U.S. intelligence operations in Ghana, to a Ghanaian agent, with whom she was romantically involved. She was initially sentenced to five years in prison, but a federal judge subsequently reduced her sentence to two years. That. Is. It.

So, little wonder, “the most transparent administration in history” wants to establish a better beachhead in its fight against transparency and truth. John Kiriakou is the whipping post. And he is caught in the whipsaw….prosecuted by a maliciously relentless government, with unlimited federal resources, and reliant on private defense counsel he likely long ago could no longer afford.

It is a heinous position Kiriakou, and his attorneys Plato Cacheris et. al, are in. There are moral, and there are exigent financial, realities. On the government’s end, as embodied by the once, and now seemingly distant, Constitutional Scholar President, and his supposedly duly mindful and aware Attorney General, Eric Holder, the same moralities and fairness are also at issue. Those of us in the outside citizenry of the equation can only hope principles overcome dollars and political hubris.

Eric Holder, attorney general under President Barack Obama, has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.
….
“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 once and previous criticisms of John Kiriakou, and others trying to expose a nation off its founding tracks, may be valid in an intellectual discussion on the fulcrum of classified information protection; but beyond malignant in a sanctioned governmental prosecution such as has been propounded against a civilian servant like John Kiriakou who sought, with specificity, to address wrongs within his direct knowledge. This is precisely where, thanks to the oppressive secrecy ethos of the Obama Administration, we are today.

Far, perhaps, from the “hope and change” the country prayed and voted for in repudiating (via Barack Obama) the festering abscess of the Bush/Cheney regime, we exist here in the reality of an exacerbated continuation of that which was sought to be excised in 2008. Kiriakou, the human, lies in the whipsaw balance. Does John Kiriakou plead out? Or does he hold out?

One thing is certain, John Kiriakou is a man, with a family in the lurch. His values are not necessarily those of those of us on the outside imprinting ourselves on him.

If the government would stop the harp seal beating of Mr. Kiriakou, and at least let the man stay with his family instead of needlessly consuming expensive prison space, that would be one thing. But the senseless hammer being posited by the out for blood successor to Patrick Fitzgerald – Neil MacBride, and his deputy William N. Hammerstrom, Jr. – is scurrilous.

Rest assured, far from the hue and cry on the nets and Twitters, this IS playing out on a very personal and human scale for John Kiriakou while we eat, drink and watch baseball and football this weekend.

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