Arresting the Witness Instead of the Criminals

By David K. Shipler

Does this make sense? The Obama administration is prosecuting a former CIA analyst for allegedly telling reporters the names of two interrogators, but it is not prosecuting interrogators who committed torture.

Sometimes the law collides with morality. When that happens, prosecutorial discretion is supposed to reflect a certain wisdom and perspective, not a narrow agenda of expediency. But here we have the United States misreading its national security interest and misunderstanding what constitutes a threat. It was the torture itself that damaged America’s global influence, not the disclosure of a couple of names to journalists. If any repair to American moral authority is possible now, it would come by bringing to trial those who authorized and carried out the torture—a federal crime much more serious than the victimless crime of which the analyst, John Kiriakou, is accused.


Judging by the FBI’s criminal complaint, Kiriakou’s actions in giving classified information to unauthorized people did not have adverse consequences. No undercover agents were publicly identified, no intelligence sources were compromised, and the methods of torture Kiriakou may have discussed—waterboarding in particular—were already well known. He is charged with telling New York Times reporter Scott Shane in 2008 about a “magic box” that had been used to locate al-Qaeda operatives through their cell phones, but the ability to track was no revelation by then, and Shane’s Times story didn’t describe how it worked.

So, what’s going on here? Is the administration’s draconian action meant to warn leakers? Obama is going after half a dozen of them, more than his predecessors.

Is it to conceal government wrongdoing? In other ways, too, Obama hasn’t delivered on his promise of transparency.

Is it a natural institutional reflex? The CIA, a zealous guardian of classified information, called for this investigation, and the Justice Department complied.

Is it a canny political calculation? Obama seems determined to bolster his right flank against any hint of softness on terrorism or national security.

Early in his administration, he rejected appeals for the prosecution of agents and contractors who engaged in torture, at least those who worked within the permissive guidelines set by Bush’s Justice Department. Granted, getting convictions wouldn’t be a slam dunk. In their defense, interrogators would surely cite the department’s notorious legal opinion by John Yoo exempting CIA methods from the definition of torture.

What Kiriakou is accused of doing, however, is little more than what State Department and Pentagon officials do every day in conversations with reporters. Every cable sent by a U.S. Embassy to Washington is technically classified, so conveying virtually any information from the field—analysis, assessment, prediction, policy—could probably be prosecuted. The selective telling of secrets is a seasoned tradition in Washington, done to further a cause or a complaint, to inform or influence.

Still, when you name intelligence agents’ names, you violate the most protective code of the most secretive tribe in Washington, and you should expect a tough reaction. The breach was discovered in 2009 when Guantanamo guards found, in the cells of several “high-value” prisoners, photographs of interrogators who had worked for both the CIA and its private contractors. How the pictures got there, and how Kiriakou was fingered as a source—perhaps not the only one—is a bizarre tale, sketched by the FBI affidavit.

The most stunning detail in the document is this: Kiriakou used e-mail to communicate with the journalists. Huh? A former CIA agent used e-mail, the electronic equivalent of a postcard? No secret drops, midnight encounters, encoded messages? E-mail is so easy to hack that brokerage firms warn against using it for account numbers, Social Security numbers, and other ingredients of identity theft. Law enforcement can get e-mails with subpoenas, and even without probable cause the National Security Agency scoops them up wholesale through at least one splitter installed in an AT&T switching station in San Francisco. Kiriakou didn’t know that?

Several of his and the journalists’ e-mails are quoted verbatim in the criminal complaint. “Journalist A,” who is not identified but is not Scott Shane, tries to pry a name out of Kiriakou, going back and forth with bits and pieces of information. The journalist mentions a first name, and after a couple of exchanges Kiriakou confirms in an e-mail that “he was the team leader” in an operation. The journalist then sends Kiriakou a list of last names, asking him to pick the one.

“The following morning, at 9:23 am,” the FBI affidavit says, “KIRIAKOU wrote back, stating, ‘[first and last name of Covert Officer A]. It came to me last night.’ The last name of Covert Officer A had not been on the list provided by Journalist A. . . . At 11:31 a.m. on August 19, 2008, approximately two hours after KIRIAKOU disclosed Covert Officer A’s last name to Journalist A, Journalist A sent an email to the defense investigator referenced above that contained Covert Officer A’s full name in the subject line.”

So, the government was able to collect e-mails of its former agent, journalists, and lawyers and investigators defending Abu Zubaydah, Khalid Sheikh Mohammed, and other top al-Qaeda prisoners.

Evidently, the journalist never published or broadcast the name of the undercover agent. Another interrogator named by Kiriakou was identified in Shane’s article as Deuce Martinez, but he was not working covertly and was reported to have turned down an offer to be trained in waterboarding. He did not engage in torture, according to Shane.

What ethical lapse prompted Journalist A to give the covert agent’s name to the defense investigator? An objective reporter works on behalf of readers or viewers, not clandestinely for one side or the other in a criminal investigation. Yet the information was useful to the defense team, which wanted to subpoena interrogators to testify about their methods. If extracted by torture or other coercion, evidence provided by prisoners or witnesses could be suppressed in a trial, even one held before a military commission. Therefore, defense investigators, armed with names and sometimes addresses, staked out houses and photographed agents, then put the pictures into photo arrays to show their clients in Guantanamo.

Once prisoners picked out interrogators from those photo lineups, the defense attorneys put the names in a sealed filing to the court, without revealing the names to their clients. The leak investigation worried the lawyers that they would become targets, when they were merely giving their clients the most vigorous defense possible. This concern disappeared when the Justice Department, in charging Kiriakou, said categorically that “no laws were broken by the defense team.”

But laws were broken by the torturers, who remain unscathed by justice.