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Why Trump’s Next Pardon Should Be CIA Whistleblower John Kiriakou

President Donald Trump should pardon John Kiriakou as soon as possible. He should do so to reverse former president Barack Obama’s worst injustice: putting a man in prison for blowing the whistle on the CIA’s post-9/11 interrogation techniques, now widely considered to be torture and banned by Obama himself.

Kiriakou was highly decorated during his 14 years of CIA counterterrorism service. In 2007, he went public with what the CIA was doing to prisoners—which current CIA director Gina Haspel most recently disowned in a letter to Senator Mark Warner: “[T]he program ultimately did damage to our officers and our standing in the world. With both the benefit of hindsight and my experience as a senior Agency leader, the enhanced interrogation program is not one the CIA should have undertaken.” Kiriakou’s objections catalyzed the Detainee Treatment Act of 2005, which strengthened and clarified existing interrogation prohibitions.

Kiriakou’s alleged crime was confirming the identity of a CIA agent to an ABC news reporter who maintained its confidentiality and never published it. No CIA officer or former officer was injured or threatened, and no intelligence method was disclosed.  

President George W. Bush’s Department of Justice thoroughly investigated Kiriakou, concluded no crime had been committed, and closed the case.

Then came Barack Obama. He appointed John Brennan, a nemesis of Kiriakou’s, as deputy national security advisor and then CIA director. Brennan ordered Kiriakou’s case re-opened. Then-FBI director Robert Mueller formed a “John Kiriakou Task Force.” No new evidence was unearthed. Yet Obama’s Department of Justice charged Kiriakou with five felonies for conduct the Bush administration had concluded he was innocent of.

It was Brennan who advised the DOJ to charge Kiriakou with espionage, despite the absence of evidence. The goal was to force Kiriakou to mount a costly defense. Faced with limitless DOJ resources, the prospect of bankruptcy, and decades in prison away from his children, Kiriakou pled guilty to one count of violating the rarely enforced 1982 Intelligence Identities Protection Act (IIPA). According to a recent Congressional Research Service report, the only other IIPA conviction was of Sharon Scranage, a CIA clerk stationed in Ghana, who disclosed the names of every covert CIA operative in West Africa to her Ghanian spy paramour. The disclosure reached America’s Soviet bloc enemies and occasioned the death of at least one CIA operative. Scranage served eight months of her sentence.

The constitutionality of the IIPA under the First Amendment was raised during its enactment. But the issue has never been decided by a federal court. Kiriakou served 23 months in prison and lost his pension and shining reputation, all over a disclosure that neither harmed nor threatened any individual or interest of the United States.  

Attorney General Robert Jackson warned in 1940 that, with limitless discretion and an arsenal of opaque federal prohibitions, prosecutors and the FBI needed no longer to stick to uncovering crimes and searching for culprits; instead they could identify enemies and search for crimes. The danger is vastly greater today, as renowned lawyer and author Harvey Silverglate chronicled in his book Three Felonies a Day, because both the volume of federal crimes and the magnitude of the government’s resources have increased.

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Attorney General Jackson elaborated:

With the law books filled with a great assortment of crimes, a prosecutor, stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him….[T]he real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

Kiriakou’s real “crime” was being personally obnoxious to Brennan and Mueller. That conclusion is reinforced by his selective prosecution. Consider the following.  

CIA director David Petraeus leaked the names of 10 undercover CIA officers to his biographer.

CIA director Leon Panetta leaked the name of the Navy SEAL who killed Osama bin Laden to persons without clearances during a speech in the CIA auditorium.

Deputy CIA director Michael Morell provided a briefing to the director and writer of the film Zero Dark Thirty at CIA headquarters using a classified mock-up of the bin Laden compound.

None of these Obama cheerleaders were charged under the IIPA or Espionage Act for disclosures vastly more alarming than Kiriakou confirming the identify of a single CIA agent to a news reporter who maintained its confidentiality.

Kiriakou’s case is bigger than just him. A pardon by President Trump would encourage like-minded patriots in the intelligence community, without fear of merciless retribution, to expose any epidemics of partisanship, lawlessness, or incompetence amongst its leadership.

President Trump has been politically courageous in issuing pardons. In contrast, Presidents Obama and Bill Clinton commuted the sentence of Chelsea Manning and pardoned Marc Rich, respectively, on their last days in the White House.  

Pardoning Kiriakou now would be both courageous and President Trump’s finest salute to justice.

(Full disclosure: Bruce Fein is an attorney representing Kiriakou, pro bono, in this matter.)

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.    

17 Comments (Open | Close)

17 Comments To "Why Trump’s Next Pardon Should Be CIA Whistleblower John Kiriakou"

#1 Comment By Ray Woodcock On June 12, 2018 @ 1:16 am

Are there really no other comments, or is the software just acting up? Because, to someone who knows very little about all this, this seems compelling and scandalous. Surely the website will allow me to see the comments after I enter this?

#2 Comment By Johann On June 12, 2018 @ 8:11 am

Thank you Mr. Fein for shining the light on this.

#3 Comment By Kurt Gayle On June 12, 2018 @ 9:12 am

Mr. Fein, you make a strong case for President Trump to pardon torture whistleblower John Kiriakou. Thanks for presenting the Kiriakou case in the context of other cases. The roles of Brennan, Mueller, and the Obama Justice Department in the Kiriakou case are especially interesting.

#4 Comment By Jeff On June 12, 2018 @ 9:20 am

There is exactly no chance that this will happen, given Trump’s well-publicized statements on “enhanced interrogation” and the fact that he secured the appointment of one Ms. Gina Haspel to the directorship of the CIA. I understand that it is Mr. Fein’s duty to advocate zealously for his client both inside the courtroom and out, but this will not happen.

#5 Comment By Egypt Steve On June 12, 2018 @ 10:17 am

Good luck. You are aware that Trump is fully in favor of torture, right? He has said so publicly many times.

#6 Comment By E. J. Worthing On June 12, 2018 @ 11:24 am

This is an excellent suggestion. John Kiriakou is an American hero.

#7 Comment By Youknowho On June 12, 2018 @ 1:39 pm

Mr. Fein. I applaud Mr. Kiriakou and his courage.

I applaud you for fighting for him.

Seems that you have done a lot of soul searching since working for Reagan, who was OK with torture in Latin America, as lonng as it was against communism. Same as Jeanne Kirkpatrick. I am glad of that.

#8 Comment By Jeeves On June 12, 2018 @ 4:50 pm

If the enhanced interrogation program “is not one the CIA should have undertaken” per Haspel, but was legal at the time, how is Kiriakou a “whistle blower”?

Mr. Fein doesn’t say, so I don’t know why Kiriakou’s “whistle blowing” necessitated disclosing the name of an agent to a reporter–regardless of whether or not any one was injured thereby, or the fact that prosecutions for Kiriakou’s crime are rare (which is not a defense, as Mr. Fein knows).

#9 Comment By EliteCommInc. On June 12, 2018 @ 8:02 pm

“It was Brennan who advised the DOJ to charge Kiriakou with espionage, despite the absence of evidence.”

It is frustrating to see how often government entities engage in cases with no evidence or the willingness to make it up as they go along to trash people.

This was a tiring tale in 1993, in 1994, in 1995, in 1996, in 1997 . . . that seems routine at will is just depressing.

This from an executive no doubt frustrated because the job turned out to be something other than he imagined. Having to abandon nearly everything he claimed he stood for must have been tough, especially as a legal scholar.

#10 Comment By ourconstitution.info On June 13, 2018 @ 12:09 am

I submitted this to Activist Post on 6/4 but it didn’t make the cut?! … Ex CIA blacksite/torture whistleblower John Kiriakou should be pardoned. Cleared by the FBI under Bush, the CIA asked Obama to go after him, and he did. There was much hypocrisy from those who pushed for Kiriakou to be charged. More recently, instead of draining the swamp, Trump supported Haspel’s rise in it. What made him do this? Feinstein’s Haspel no vote explanation is quite an insightful document. We only wish Feinstein would vote consistently on these issues, using this same thoughtfulness … It should be concerning to everyone that the CIA has the power to “influence” presidents in such a manner… Who is really in charge? What is the valid, reliable, and verifiable oversight of the CIA and the Intel Apparatus? Most people likely do not even realize that the CIA, per their mandate, should not be operating stateside. We know one of their supposed overseers, the Senate Intelligence Committee, was spied on by the NSA, along with millions of other Americans. We should all be marching, as though our lives depended upon it, until these agencies, including CIA, FBI, and NSA, are reformed or closed down. Also, many of their associations with our universities, students, hospitals, and medical schools must be just as carefully scrutinized and ended. For similar sentiments read what Presidents Truman and Eisenhower had to say. See these links and related information at ourconstitution.info.

#11 Comment By Dino J. DeConcini On June 13, 2018 @ 2:06 pm

Bruce Fine makes a compelling case for a pardon for Kiriakou with which I could not agree more. However Jeff and others are certainly right that Trump’s affinity for torture makes it unlikely it will happen. Equal Justice Under Law? Sometimes, some administrtions.

#12 Comment By L Garou On June 13, 2018 @ 11:54 pm

Hear, hear!
In your face you crooks..

#13 Comment By Charles L. On June 14, 2018 @ 10:09 am

“A pardon by President Trump would encourage like-minded patriots in the intelligence community, without fear of merciless retribution, to expose any epidemics of partisanship, lawlessness, or incompetence amongst its leadership.”

This statement is true. It is also the reason that Trump will not issue the pardon. The last thing he wants is more whistleblowers. Plus, as others have noted, Trump supports torture.

#14 Comment By towel root On July 4, 2018 @ 2:30 am

He is the prime minister he did everything because he has authority.

#15 Comment By Patty On August 28, 2018 @ 6:23 am

lawlessness, or incompetence amongst its leadership

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