John Kiriakou bends over the webcam. He wears a black sweater that matches the top of his salt-and-pepper hair and the outline of his wide glasses. His manner is affable, but he speaks with the intensity that one might expect of a man who would risk imprisonment to leak state secrets to the press.
After joining the Central Intelligence Agency as an analyst in 1990, Kiriakou (pronounced Keer-ee-AH-koo) shuffled around the agency for seven years, but he found himself bored. “I wanted to do something really exciting,” he remembered. On this impulse, he switched to counterterrorism operations in 1997. Four years later, in the aftermath of 9/11, he ventured to Pakistan, where he directed counterterrorism operations. Under his watch, the United States captured dozens of Al Qaeda fighters, including Abu Zubaydah, the presumed Al Qaeda third-in-command.
After stints at the CIA headquarters and the United Nations Security Council, and with five kids to care for, Kiriakou decided it was time to settle down. He resigned from the CIA in 2004, moved to Los Angeles, and took a consulting job at Deloitte.
But Kiriakou couldn’t keep himself out of the crossfire. In December 2007, the New York Times reported a shocking new revelation in the CIA’s torture program, by then known as “the worst kept secret in Washington.” The agency had videoed the use of what officials called “enhanced interrogation techniques,” which included waterboarding, sleep deprivation, and hooding, against Abu Zebaydah and other suspected terrorists before destroying the evidence three years later.
Kiriakou knew of the torture program but had turned down an opportunity to participate in it. He was passed over for promotion a month after that decision.
“The Deputy Director of Counterterrorism was an old buddy of mine, so I went in and said, ‘Bruce, what the fuck! What, do I have to catch Bin Laden to get promoted around here?’” Kiriakou remembered. “And he’s like ‘well, the chief said that you were the only one who turned down the enhanced interrogation training’ and that, these were his exact words: ‘you displayed a shocking lack of commitment to counterterrorism.’”
Kiriakou says this incident led others to start calling him “the human rights guy” behind his back and that it was “not a compliment.” But he knew of others who shared his thoughts on the program.
“I thought, ‘Okay, great. I’m not the only person who thinks this is an abomination. Somebody is going to say something.’ And nobody said a word,” he told The Politic.
So Kiriakou decided to speak. Three years after he had retired from the agency, he confirmed what the Times had reported to Brian Ross from ABC News.
Kiriakou claimed that he did not leak “the CIA’s dirty laundry” out of animosity. He felt he was defending the CIA’s practices in the name of national security. And initially, there were no hard feelings. A Department of Justice investigation found no criminal wrongdoing. Two years later, when Obama took office, Kiriakou even joined the Senate Foreign Relations Committee as a senior U.S. Senate investigator for two and a half years.
But the government’s leniency would run out. In 2012, the CIA asked the Department of Justice to reopen Kiriakou’s case. On April 5 of that year, he was indicted for violating the Intelligence Identities Protection Act and the Espionage Act, as well as lying to the CIA Publications Review Board. After first pleading not guilty, he took a plea deal and served 30 months in prison. He remains the only CIA agent involved in the U.S. government’s torture program to be convicted of any crimes. The CIA did not respond to a request for comment.
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Leaking U.S. government secrets is not a new phenomenon. As Jameel Jaffer, who directs the Knight First Amendment Institute at Columbia University and formerly represented Edward Snowden, remarked to The Politic, “If you look at today’s New York Times or Wall Street Journal, the front page will include multiple stories that contain classified information provided by government sources.”
However, Kiriakou is not an ordinary government source: He disclosed information on suspected government wrongdoing, making him a whistleblower. This distinction typically would afford Kiriakou legal immunity, but national security whistleblowers are exempt from the safeguards of the Whistleblower Protection Act. Instead, they are governed by the Intelligence Community Whistleblower Protection Act, which does not protect against retaliation or criminal prosecution, according to a 2013 Brennan Center factsheet on whistleblowing. This caveat has allowed the United States government to continue charging whistleblowers in the intelligence sector.
Gabe Rottman, an expert on the history of government leak investigations, directs the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press. He noted that the Intelligence Identities Protection Act, to which Kiriakou eventually pled guilty under one count of violating, “is one of the few federal statutes that explicitly criminalizes the public disclosure of truthful government information.” It has only been used successfully for two convictions; Kiriakou’s case is one of those two.
Kiriakou was also accused of violating the Espionage Act, which has only a slightly longer case history with whistleblowers. Rottman explained that the law, enacted during World War I, was built on prior legislation that protected defense and military institutions. “The initial intent behind it was to get at traditional espionage, the people selling secrets for money or ideological reasons, and for most of history that’s how it was used,” he said.
But this changed in the 2000s. Before former President Barack Obama took office, there had only been three prosecutions of whistleblowers under the Espionage Act; during his two terms as president, there were eight. This is inconsistent with Obama’s public stance on whistleblowers, where he has lauded the “courage and patriotism” of whistleblowers and claimed their actions merit legal protection.
In Jaffer’s words, “[After 9/11] the government started using the Espionage Act not just against spies as conventionally understood, but against government insiders who provided information to the press, with the purpose of informing the public about government abuse of one kind or another. The Bush administration really got that practice off the ground, but the Obama administration was arguably even more aggressive.”
Rather than looking back to Bush, Rottman sees Obama’s inauguration as the beginning of the uptick in prosecutions of journalistic sources, a term that refers to all leakers to the press and includes whistleblowers. Including the eight Espionage Act cases, he counts 11 journalistic source prosecutions during Obama’s presidency, more than all previous administrations combined. (By his count, there were nine more through the Trump presidency.)
Jaffer claimed that increased efforts to prosecute whistleblowers present a problem. “Once you start using the Espionage Act against journalistic sources, you really make it much more difficult for reporters to do the work that the public needs them to do… The only possible check on government abuse is an informed public, and whistleblowers are crucial [in this regard],” he continued.
Jaffer explained that suppressing whistleblowing extends beyond prosecuting whistleblowers themselves. He drew attention to the shift from charging sources criminally under the Espionage Act to charging the publishers of their information. He notes that, under President Trump, WikiLeaks founder Julian Assange became the first publisher to be prosecuted under the act. While Assange’s journalistic techniques differ from those of standard publications, Jaffer still thinks his case is a troubling sign.
He said, “There has always been this kind of line drawn between government insiders who leaked information to the press, and then the press itself… If you take seriously the proposition that publishers are liable under the Espionage Act when they publish classified information, then a great deal of what mainstream American newspapers do every day is criminal.”
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In contrast to Jaffer’s broad defense of disclosing classified information, some officials argue that whistleblowers should not override federal decision-making on classification. As a former Obama administration intelligence official who requested to remain anonymous said, leakers who follow their personal moral convictions evade discourses on standard classification processes.
“The decision [to classify information] is one that should be made at a societal level, not an individual level. As a society, we determined to delegate authority to classify the information to certain agencies and individuals within the government… Lower-level people who don’t necessarily have the full picture shouldn’t be the ones to say, ‘Oh, I think the President of the United States was wrong here, so I’m going to reveal this information.’”
The intelligence official hints at an important point. Americans tend to glorify the rugged individual acting in the name of truth and justice against the oppressive tyranny of government. In a country that has prioritized individual freedom since its conception, the increase in whistleblower prosecutions has little precedent. So what’s driving it?
Rottman contended that officials classifying documents err on the side of caution and will often give documents a higher classification level than necessary. They have little incentive to not do so; erring the other way could have national security consequences for which they would be responsible.
Kiriakou was quicker to blame specific government officials. He singled out Obama and John Brennan, the Homeland Security Advisor when Kiriakou was prosecuted. “Most other presidents hate leaks that make them look bad and love leaks that make them look good. Obama just hated leaks, period,” Kiriakou explained.
Kiriakou contended that Brennan helped Obama translate his animosity towards leakers into retaliatory action. He explained that Obama wanted Brennan to direct the CIA but encountered opposition from progressives who were concerned about Brennan’s involvement in the Bush administration’s torture program. In response to this discontent, the Obama administration appointed Brennan as Deputy National Security Advisor for Counterterrorism. In Kiriakou’s view, this gave Brennan time to “get the liberals to back off” while he could curry favor with Obama by demonstrating his austerity with national security leaks.
Kiriakou claimed that his lawyer thought the CIA’s case was “shit, and they know it’s shit.” But Kiriakou felt the agency did not care.
“The goal was to ruin me. There was one CIA officer who was involved in my prosecution who very stupidly told a journalist, ‘We’re taking Kiriakou down.’ They wanted to make sure that I paid a heavy price for airing the dirty laundry,” he said.
The Obama intelligence official did not feel the uptick in whistleblower prosecutions was revealing of a policy shift. Instead, he saw two related factors creating the rise of cases: the ease in accessing and distributing classified documents in the electronic age and the digital footprints left in doing so.
“The combination of those two is what led to the increase of prosecutions in the Obama administration, rather than any policy decision that says we need to increase our prosecution of leakers,” he said.
John Tye YLS ’06 agreed with this assessment. Tye is a former Obama-era whistleblower who went on to found the nonprofit Whistleblower Aid. He dismissed the idea that Obama was responsible for the sudden spike. “I don’t think that [the Obama administration] had an especially hard-line view on whistleblowers… I just think it was a lot of circumstance,” he argued.
The intelligence official did admit that the Obama administration was guilty of “hand-wringing” with the problem of overclassification. As he explained, classification guides are massive, and using them to properly classify every document would be far too time-consuming. “If people follow the [classification] procedure to the letter, nothing would ever get done in government,” he said.
However, the official was hopeful about the future of overclassification. He noted that the Director of National Intelligence, Avril Haines, recently stated that she intends to address the issue of overclassification. He also touched on the potential of artificial intelligence to determine classification levels. Although he acknowledged that there is concern about allowing a computer to classify national security information, he noted that studies suggest they can classify information better than humans.
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Jaffer thinks this is not enough. Although he noted that the Biden administration has yet to charge a journalistic source under the Espionage Act, he was dismayed that the current administration has not yet dropped the Julian Assange case or broadly reconsidered whistleblower prosecution policies. However, he still sees signs of improvement.
“I think that the experience of the Trump years has led many people who previously were very comfortable with unchecked executive power to be less comfortable with the idea. And some of those people are in the Biden administration.”
He continued, “I hope that those people will use the authority they now have to put some limits on the use of the Espionage Act in a context in which there are real implications of the use of the act for press freedom and the public’s ability to oversee the government.”
Jaffer touches on an important idea: that the security of government secrets is fundamentally at odds with the public oversight that is essential for a healthy democracy. Overcoming that tension requires individuals who do not fear disobedience or nonconformity to disclose classified information. In the context of this country’s reverence of freedom and individualism, it is only natural that America would respect the actions of these whistleblowers. But the recent rise in prosecutions does not reflect that sentiment.
An Andy Warhol photograph of the 1963 Birmingham race riots hangs behind Kiriakou. “I always wanted it,” he says. He holds his webcam up to the image and points out the key details. The German shepherd on the left is biting a black man’s leg while another shepherd lunges towards the man’s arm. Surrounding the scene, on all sides, are policemen with batons. It is a poignant, evocative image, but it is also emblematic of the man to whom it belongs. As whistleblowers like Kiriakou see it, the price of dissent may be high, but the price of silence is far higher.