Waterboarding Whistleblower Released From Prison, Two Months After Torture Report's Release Vindicated His Actions

from the the-real-criminals-are-still-at-large dept

Guess who went to jail because of the CIA's long-running, illegal torture programs.

It wasn't former director Leon Panetta, who was ultimately responsible for the actions of his agency. It wasn't any number of agents, officials or supervisors who directly or indirectly participated in the ultimately useless torture of detainees. It wasn't the private contractors who profited from these horrendous acts committed in the name of "national security."

The single person to be put behind bars thanks to the CIA's torture programs was the man who blew the whistle on the agency's waterboarding: John Kiriakou. Now, he's finally free again (mostly), two months after the Torture Report that corroborates his allegations was released.

Kiriakou is serving out the remainder of his sentence for "revealing an undercover operative's identity" under house arrest. While still imprisoned, Kiriakou wondered aloud (in the Los Angeles Times) why Panetta wasn't facing similar charges, considering the former CIA head had disclosed far more sensitive information, including the names of SEAL operatives to a civilian -- the screenwriter for Zero Dark Thirty.

Now that he's out, he's still talking. Kiriakou gave his first post-release interview to Fusion's Daniel Rivero, and it opens up with a stark (but ultimately upbeat) statement about the damage this government can do to those who attempt to hold it accountable.

“It’s been a terrible three years, and it’s ruined me financially and personally, but in the greater picture it’s all been worth it,” John Kiriakou told Fusion over the phone from Arlington, Virginia, where he just began serving an 85-day house arrest sentence. It was his first interview since leaving a federal prison in Pennsylvania on Tuesday.

“I’m proud I had a role in seeing that torture is now banned in the United States,” he said.

The ultimate irony, he says, is that everything he was punished for saying has now been proven true. But this administration treats the unapproved dissemination of unflattering facts as criminal activity, rather than the check against government overreach it actually is. On the flipside, it allows officials like Panetta (and hundreds of unnamed ones granted anonymity by journalists) to "leak" classified information in order to push its preferred narrative.

Kiriakou's revelations should have prompted a deeper examination of the CIA, rather than a vindictive prosecution. Choosing this path -- one of the DOJ's favorites -- allowed the intelligence agency to expand and intensify its "enhanced interrogation" tactics.

[T]hat’s the problem with the torture program. Torture is a slippery slope, and once you start dehumanizing people, it’s almost a human tendency to do worse and worse and worse things to get the information you are supposed to be after,” Kiriakou said.

Imprisonment alone also dehumanizes people. Sometimes, the easiest way to throw someone's credibility into question is simply to press charges. Despite our justice system being advertised as "innocent until proven guilty," the perception among the general public tends to be that the accused is guilty until proven otherwise, or let off on a technicality. Prosecuting whistleblowers softens the impact of the exposed information, especially among those predisposed to granting the government more credibility than its citizens. The DOJ -- and the administration -- knows this, which is why this tactic has been pursued more often during the last seven years than in all the previous administrations combined.

CIA personnel -- and those overseeing them -- will see less time behind bars combined than John Kiriakou served on his own, because that's how supremely screwed up our government is at this point.

Filed Under: cia, john kiriakou, torture, torture report, waterboarding

Turns Out New Senate Intelligence Boss Was Simply Full Of It In Claiming Feinstein Couldn't Distribute The CIA Torture Report

from the off-to-a-great-start dept

The new head of the Senate Intelligence Committee, Senator Richard Burr, has long been known as a staunch defender of anything the CIA/NSA decide to do. That's why we still find it odd that he's now in charge of overseeing them, a job that was created to try to prevent their abuses. In the past, Burr has even argued that all hearings by the committee should be held in secret, to prevent any information from ever getting out. So, perhaps it wasn't that surprising when he kicked off his new role by claiming that his predecessor, Senator Dianne Feinstein, had somehow broken all sorts of protocol in actually distributing copies of the committee's 6000+ page report on the CIA's torture program and how the CIA lied to Congress about it. Burr was demanding all the copies back, while supposedly acting furious that it had been distributed. He claimed that it "was not a valid disclosure" and that it was done without approval.

As part of that complaint, he went to the Senate Parliamentarian (basically the referee who makes the calls on all the arcane and sometimes ridiculous rules of the Senate), asking for a determination that Feinstein had violated the rules in distributing the report. Instead, he got the opposite. The Parliamentarian has noted that Feinstein did nothing wrong in distributing the report.

The Senate Parliamentarian has vindicated former Senate Intelligence Committee chair Dianne Feinstein against charges that the California Democrat violated committee rules by sending the full, classified version of her panel’s torture report out to the executive branch.

“There’s nothing there. They’re taking no action,” Feinstein told HuffPost Tuesday.

Apparently, Burr isn't giving up, but in typical Burr fashion, he says he's going to keep what he does next a secret:

“We’ll proceed to whatever the next step is gonna be,” Burr said Tuesday. “I think there will be a next step, but it probably won’t be a public one.”

That's not particularly comforting.

Filed Under: cia, cia torture report, dianne feinstein, richard burr, senate, senate intelligence committee

DOJ Tells Court It Hasn't Even Opened CIA Torture Report... After Telling Reporters It Read The Whole Thing

from the YOU-TOO-CAN-SUPPORT-THIS-LIE-ON-LESS-THAN-A-CONUNDRUM-A-DAY! dept

I don't care who you are (even, say… the government), but if you're going to tell two different versions of a story, it helps to not have both in print and publicly available.

Trevor Timm of the Freedom of the Press Foundation caught the DOJ spinning two different yarns for two different entities about its familiarity with the CIA Torture Report.

DOJ told NYT they read the full torture report. http://t.co/euLgn20u3l Then, DOJ swore in court they didn't. http://t.co/Lw0fjrEe2d Huh?

— Trevor Timm (@trevortimm) February 3, 2015

If you can't see the tweet, it says:

DOJ told NYT they read the full torture report

Then, DOJ swore in court they didn't.

Huh?

Included were links to the source material. In arguing for the continued withholding of the full version of the CIA report from the NYT, here's the DOJ telling the paper of record one thing:

The Justice Department said in a statement on Tuesday that its investigators had looked at the full version of the Senate Intelligence Committee report “and did not find any new information that they had not previously considered in reaching their determination,” adding that Mr. Durham’s “inquiry was extraordinarily thorough and we stand by our previously announced decision not to initiate criminal charges.”

And here it is in court, defending its withholding of the report from a different FOIA requester:

"None of the defendant agencies have freely used the Full Report; they have kept it stored in a [sensitive compartmented information facility], with limited access," the government’s declaration reads. "Neither [the Department of Justice] nor [the Department of State], moreover, has even opened the package with the disc containing the full Report. And CIA and [the Department of Defense] have carefully limited access to and made only very limited use of the Report."

In both cases, the DOJ is justifying continued secrecy, but in only one case does it claim to be intimately familiar with the subject matter. So, which version of the DOJ's story is true? One would hope the declaration before the court would be the truthful statement, but you know what they say about "wishing with one hand." By the time you've worked your way through that process, your faith in the government dies a little more and you've defecated in your own hand -- neither of which are pleasant outcomes.

The only certainty here is that the DOJ will say whatever it wants to say in order to further its position. And that position is: shut up and stop asking. We're not going to let you see the full Torture Report. Another powerful blow against for government secrecy has been struck by the Most Transparent Administration in History. You may now continue your wholly sarcastic chants of "USA! USA! USA!"

Filed Under: cia, doj, lies, torture report

Former CIA & NSA Boss: September 11th Gave Me Permission To Reinterpret The 4th Amendment

from the i-guess-the-terrorists-did-win dept

Michael Hayden, the former CIA and NSA director, has revealed what most people already suspected -- to him, the Constitution is a document that he can rewrite based on his personal beliefs at any particular time, as noted by Conor Friedersdorf at the Atlantic. Specifically, he admits that after September 11th, 2001, he was able to totally reinterpret the 4th Amendment to mean something entirely different:

In a speech at Washington and Lee University, Michael Hayden, a former head of both the CIA and NSA, opined on signals intelligence under the Constitution, arguing that what the 4th Amendment forbids changed after September 11, 2001. He noted that "unreasonable search and seizure," is prohibited under the Constitution, but cast it as a living document, with "reasonableness" determined by "the totality of circumstances in which we find ourselves in history."

He explained that as the NSA's leader, tactics he found unreasonable on September 10, 2001 struck him as reasonable the next day, after roughly 3,000 were killed. "I actually started to do different things," he said. "And I didn't need to ask 'mother, may I' from the Congress or the president or anyone else. It was within my charter, but in terms of the mature judgment about what's reasonable and what's not reasonable, the death of 3,000 countrymen kind of took me in a direction over here, perfectly within my authority, but a different place than the one in which I was located before the attacks took place. So if we're going to draw this line I think we have to understand that it's kind of a movable feast here."

While it's true that the 4th Amendment does ban "unreasonable search and seizure," it seems like quite an interpretation to argue that "reasonableness" depends on what some third party does to us. That seems morally dangerous -- and it seems like a direct admission to terrorists that if they want to eviscerate the rights of Americans, they just need to keep on attacking, because folks like Hayden will just interpret it to mean that they should take away more and more rights from Americans.

Then there was this other rather stunning admission. Hayden admits that the NSA wants to listen to anyone it finds "interesting," not just those they think are doing something bad:

"I am not a law enforcement officer. I don't suspect anybody. I am simply going out there to retrieve information that helps keep my countrymen free and safe. This is not about guilt. In fact, let me be really clear. NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information."

This is a rather refreshing admission -- as most of those who normally defend the surveillance state like to pretend that they're only listening to "bad" people. They trot out the "if you're not doing anything wrong, you have nothing to fear" argument all the time. Even Hayden himself has argued along those lines in the past. Yet here he is, more accurately saying that "if you're boring, you have nothing to fear" but "if we think you're interesting, you should be very afraid." And "interesting" is subject to a lot more vague interpretations than "reasonableness."

You can see his whole speech below, and while it's nice that he's finally admitting how malleable his own morals are, it's depressing that he ever had the power to use his flexible morals to spy on all of us -- and then did so.

Filed Under: 4th amendment, cia, michael hayden, nsa, privacy, september 11, surveillance

Will Senator Burr's Attempt To Bury CIA Torture Report Actually Make It More Likely The Report Leaks?

from the action,-reaction dept

We already wrote about how Senator Richard Burr has demanded that the White House return all copies of the full, unredacted CIA Torture Report, which Senator Dianne Feinstein distributed to various department heads last month. As we noted in our article, this seemed like an effort to stuff the full report down the memory hole to make sure that no one could ever do anything with it at all and to make it more difficult to access in a series of FOIA lawsuits. Those lawsuits are demanding the report, as well as the internal Panetta Review that is supposedly the smoking gun, involving an internal CIA analysis that mostly agrees with the Senate Intelligence Committee's analysis in the full report.

Reporter Jason Leopold of Vice News (and one of the people suing the government, under FOIA, for the documents) has some more details about Burr's action, including a copies of the letter [pdf] Burr sent the White House, and the letter that Feinstein sent in reply. As Leopold notes, Burr's decision seems specifically designed to try to do a legal two-step to make the document immune from FOIA lawsuits:

By advising the White House to cease entering the full torture report into an executive branch system of records, Burr is saying that the document is a "congressional record," which is exempt from FOIA, as opposed to an "agency record," which is subject to the provisions of the law.

Feinstein's response shows that she disagrees, and that the report can properly be handed over to the Executive Branch. The reason for the letter, obviously, is for it to be used in killing off the FOIA attempts, and the DOJ wasted no time in making just that argument:

Tonight, the government filed a response in our long-running lawsuit and asked a judge to dismiss our case. A CIA lawyer said in a 31-page declaration that the redactions in the executive summary were justified and the Panetta Review is properly classified and should not be released. The government also responded to the ACLU's FOIA lawsuit for the full torture report. The government said the full torture report is not an agency record subject to FOIA, it is a congressional record. The government cited Burr's letter to support its case.

You can see that filing here [pdf], with this being the relevant portion:

Congress retains control over the Full Report for at least five reasons. First, the conditions under which the report was created reflect that SSCI as a whole asserted complete control over not only drafts, but also the final product. Second, throughout the years-long process of creating and finalizing the Report, both SSCI and the CIA handled the Report in accordance with SSCI’s instructions and strict limitations on access. Third, SSCI voted, in accordance with Senate Rules, to seek declassification and release only of the Executive Summary, Findings and Conclusions – not the Full Report. The then-SSCI Chairman’s decision to provide the Full Report to certain Executive Branch agencies for nonpublic use does not amount to a Committee decision to seek to declassify and release the Full Report. Fourth, the current Chairman of SSCI has reiterated SSCI’s intent to retain control of the Full Report. Finally, the defendant agencies have treated the Full Report, received in December 2014, as a congressional record, sequestering it in secure storage space appropriate to its classification and carefully limiting its dissemination and use. Because the Full Report remains a congressional record as opposed to an agency record, this Court lacks jurisdiction over plaintiffs’ FOIA claim seeking its release, and plaintiffs’ claim should be dismissed under Rule 12(h)(3) or 12(b)(1).2

This is not all that unexpected, even if it's fairly ridiculous. However, it's possible that the whole thing could backfire badly. Feinstein knew what she was doing in distributing the report to a number of people within the administration. While all of whom have access to it have the proper clearance, at least some have to agree that this report is an important historical document, detailing incredible misdeeds by the CIA -- and some of them may view it as important to have that information shared with the public to make sure such events never happen again.

Senator Burr's rather obvious move here to demand all copies be "returned" is seen by many as an attempt to bury the report entirely. As Senator Ron Wyden points out, returning the report would "aid defenders of torture who are seeking to cover up the facts and rewrite the historical record." Given that, it seems more likely that at least someone with access to the document is going to realize that this important review of history is at risk of being shredded. Hopefully there is someone in the government with the courage to stand up and get a copy out to reporters in some manner or another, before Burr has a chance to succeed in wiping it off the face of the earth.

Filed Under: cia, cia torture report, congress, dianne feinstein, doj, foia, jason leopold, leaks, richard burr, senate, senate intelligence committee, whistleblowing

New Senate Intelligence Boss Demands That White House 'Return' CIA Torture Report Copies

from the so-they-can-be-burned dept

We had mentioned in the past, that once Senator Richard Burr took over the Senate Intelligence Committee, it seemed likely that the CIA torture report, prepared by the Committee's staffers, would be buried. That was before the redacted version of the executive summary was released, and it was written to explain why an agreement needed to be reached to release the report before the new Congress took over. However, what we didn't expect was that Senator Burr, upon taking office, would then take the rather unprecedented step of trying to bury the report anyway.

But that's exactly what he's doing.

Specifically, he has freaked out and demanded that the White House return every copy of the full 6,600 page report, saying that Senator Feinstein never should have delivered that full report to anyone in the administration:

Burr, upon taking charge in January, wrote to the executive branch and the federal agencies in receipt of the document, and asked that it be returned to the committee, as he did not feel it was a valid disclosure.

“It gets pretty technical,” Burr said, confirming he sent the letter. The full document, he explained, had been voted complete in the 112th Congress, and the release of the executive summary was voted on by the 113th Congress.

But what wasn’t ever agreed upon, said Burr, was the disclosure of the full report to several arms of the federal government, which prompted his letter demanding all copies be returned.

And, that's not all he's asking for. He's also demanding back the so-called "Panetta Review," which was the internal review, done by the CIA of the torture program, with findings that largely mirrored the Senate Intelligence Committee's report. The Panetta Review had been done, on the orders of then director Leon Panetta, and the CIA insists it was only meant for internal use at the CIA. At some point, however, according to the Intelligence Committee staffers, the CIA gave a draft of that document over to the those staffers. That resulted in then Senator Mark Udall asking the CIA for the final review -- leading the CIA to freak out that a Senator knew of the existence of the Panetta Review in the first place.

That, of course, resulted in the CIA then spying on the Senate staffers' computers to find out how they got the document and the CIA ridiculously claiming that the staffers had violated criminal laws in removing the document from the network and storing it in a safe place. Udall, before leaving Congress, argued that the Panetta Review should be released, but Burr has (not surprisingly) demanded the document back.

Once again, this raises some serious questions about what Senator Burr thinks his role is. Is it oversight of the CIA -- or is he the CIA's protector? Because the demands for both of these reports to be "returned" so that he can more or less destroy them, certainly suggests the latter, rather than the former.

And, as ridiculous as it may sound to demand the return of these reports, it's more than just a gesture of solidarity with the CIA. The ACLU is currently suing the CIA over its refusal to release the Panetta Review under a FOIA request and also the federal government for refusing to release the full CIA torture report. Having that information in other parts of the government make it more likely that a court could order it to be turned over. But Burr seems to be focused on making sure that it's only held by "friendly" parties who might destroy this important historical document, detailing the CIA's abuses. As the ACLU noted in a statement:

“Senator Burr is supposed to be overseeing the CIA, not covering up its crimes. The full Senate torture report was given to Executive Branch agencies to be widely used to make sure that the federal government learns its lesson and never uses torture again. Senator Burr’s attempt to recall the report seems like a bid to thwart Congress’s own Freedom of Information Act, which protects the rights of the American people to learn about their own government. Americans should ask, if Senator Burr isn’t going to serve his role in the Constitution’s system of checks and balances, then why did he want to be chairman of the intelligence committee? This is a poor start to a chairmanship.”

Filed Under: cia, cia torture report, foia, oversight, panetta review, richard burr, senate intelligence committee
Companies: aclu

CIA Internal Review Clears CIA Of Senate Hacking Allegations; Claims Senate Improperly Accessed Classified Documents

from the CIA-says-CIA-did-nothing-wrong.-No-news-at-11. dept

Now that the long-delayed CIA Torture Report has been released, it's time to find someone to blame. Not for the torture, of course. There will apparently be no punishments handed down for the abuse uncovered by the Senate Intelligence Committee. (Also, apparently, there will be no huge international fallout. Remember just a few short weeks ago when we were promised increased terrorist activity if the report was released? Still waiting…) But there will be some noise made about the Senate's alleged impropriety.

One-man transparency army Jason Leopold reports at Vice that the Senate allegedly stole documents from the CIA -- documents they weren't supposed to have access to. But the credulity of this assertion really depends on how much you trust the source.

Contrary to accusations leveled by the Senate, a 38-page report has found that the CIA did not breach the computers of Senate Intelligence Committee staffers and spy on them while they were investigating the CIA's torture program.

The report was released today by the CIA. And is based on a review conducted by a CIA accountability board.

What the accountability board's review did find, however, is that Senate Intelligence Committee staffers stole documents from the CIA and violated an agreement it entered into with the agency over the use of a classified computer network. On several occasions between 2009 and 2013, while the committee was writing its report, committee staffers allegedly gained access to CIA documents they were not authorized to see — such as a spreadsheet that contained a list of videos apparently related to the torture program — and admitted as much when confronted by agency officials.

So, the CIA took it upon itself to perform an investigation no one asked for in order to clear itself of allegations that it had spied on Senate staffers. Chalk that one up to active disinterest by the administration in pursuing any allegations of wrongdoing associated with the Torture Report. Several months ago, the Senate claimed the CIA had hacked its computers and accessed Torture Report work-in-progress but the DOJ declined the invitation to investigate further.

Now, the CIA is claiming it was blameless (you know, other than the torture), based on its own internal investigation. The OIG report alleging CIA abuse of Senate computers was reviewed by the CIA's in-house Accountability Board and determined to be "riddled with errors."

The CIA's accusations against the Senate boil down to a bundle of classified internal CIA documents known as the "Panetta Review."

The Intelligence Committee made a formal request to the CIA for the Panetta Review in November 2013 — but unbeknownst to the CIA, the Senate already had a copy. According to the accountability board's report, the request set off alarm bells at the CIA, leading the agency to believe that the committee may have already accessed the Panetta Review. At that point, the Senate had already completed a draft of its torture report and was battling the CIA over the veracity of the findings and conclusions — that the CIA's program had been ineffective.

According to the CIA accountability board, the agency went back and reviewed the draft copy of the Senate report and the Panetta Review and found the language in both documents to be "remarkably similar," meaning that the Senate probably relied on the Panetta Review to draft its report.

If the CIA didn't want the Senate to access these documents, it's left unexplained as to how it failed to prevent this. The CIA supposedly had "walled off" space for the Senate to work within its network and actively monitored staffers' activity. In fact, it was this active monitoring that led to the Senate's accusations of CIA impropriety in the first place.

[CIA Director John] Brennan later revealed to Feinstein that he authorized the CIA employees to conduct a search of Intelligence Committee computers at the secure facility to determine how they obtained the Panetta Review. A CIA review of computer "audit logs" concluded that no one at the CIA had voluntarily turned over the Panetta Review.

That disclosure led Feinstein to make a dramatic speech on the Senate floor last March in which she accused the CIA of unlawfully monitoring Senate staffers' computers and attempting to sabotage the committee's investigation, which "undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function."

The agency determined that no one on its side had handed over the forbidden Panetta Review, so somehow the Senate had managed to thwart the CIA's secured system and access documents it wasn't supposed to see. Now, the CIA is pressing the DOJ to investigate the Senate. If this push is successful, the only people to be punished for years of unlawful torture will be Senate staffers. This won't do anything to salvage the CIA's reputation, but it may deter further investigations and oversight by the Congress and Senate. There's really only one reason the CIA wanted to keep the Panetta Review out of the Senate's hands, and it has nothing to do with national security and everything to do with self-preservation.

[T]he Intelligence Committee had found the findings of the Panetta Review — which had been conducted internally by the CIA — to be very different from what the CIA was telling the Intelligence Committee in response to the committee's torture report.

The fact that the CIA wants to punish the Senate for the Torture Report has provoked some heated responses from Senate Intelligence Committee members. Dianne Feinstein issued this short statement late Wednesday:

"Let me be clear: I continue to believe CIA's actions constituted a violation of the constitutional separation of powers and unfortunately led to the CIA's referral of unsubstantiated criminal charges to the Justice Department against committee staff," Feinstein said. "I'm disappointed that no one at the CIA will be held accountable. The decision was made to search committee computers, and someone should be found responsible for those actions."

Ron Wyden issued a longer statement in response, one that shows his irritation at the CIA being so willing to let itself off the hook:

"Both the CIA Inspector General and the review board appointed by Director Brennan have now concluded that the CIA's unauthorized search of Senate files was improper. It is incredible that no one at the CIA has been held accountable for this very clear violation of Constitutional principles. Director Brennan either needs to reprimand the individuals involved or take responsibility himself. So far he has done neither.

This episode further illustrates the cumulative corrosive effects of the CIA's torture program. First, agency officers and contractors went far beyond the limits set out even in the Justice Department's torture memos. Then, top officials spent a decade making inaccurate statements about torture's effectiveness to Congress, the White House and the American people. Next, instead of acknowledging these years of misrepresentations, the CIA's current leadership decided to double down on denial. And when CIA officials were worried that the Intelligence Committee had found a document that contradicted their claims, they secretly searched Senate computer files to find out if Senate investigators had obtained it.

At a time when the CIA appears incapable of policing itself, the intelligence community needs more external oversight, not less.

Last June senior officials from the NSA, FBI and ODNI all testified that their agencies did not have the authority to conduct a search of U.S. Senate files without external authorization, but Director Brennan has refused to say what rules apply to the CIA. This is unacceptable in a democracy. It is time for the Director's stonewalling to end."

Now, let's suppose that all of the CIA's allegations are true. If so, should the Senate be held accountable for actions it took that resulted in the exposure of CIA wrongdoing? Obviously, the CIA feels it should. But the documents "improperly accessed" were internal CIA documents that showed the agency was lying to its overseers about its interrogation techniques. Without this "improper" access, it's likely the Torture Report wouldn't have been as devastating. Large amounts of CIA wrongdoing would have remained undisclosed.

What's included in the Panetta Review is information the Senate Intelligence Committee should have had access to in the first place. But the CIA deliberately and wrongfully withheld information that contradicted the narrative it was feeding to its overseers. If the Senate is to be punished for its wrongful access, then it follows that the CIA should be held accountable for its deliberate misrepresentation of its torture programs. Instead, there's now a chance the investigators will pay for their (mild in comparison) misconduct while the agency walks away clean.

Filed Under: cia, dianne feinstein, john brennan, ron wyden, senate intelligence committee, senate spying, spying, torture report

DOJ, Which Once Claimed James Risen's Testimony Was Necessary, Now Tries To Block Other Side From Using Him

from the funny-how-that-works dept

The James Risen saga is basically over, but ended in a bizarre way. As you hopefully recall, this case goes back many years, and involves the DOJ trying to convict Jeffrey Sterling, a former CIA official, of leaking info to Risen. However, Risen has made the compelling case that the DOJ's desire to involve him was an attempt to punish him for earlier work he'd done exposing questionable practices by the intelligence community -- and specifically to force Risen to give up a source, so that future whistleblowers can't trust him. This backfired massively, as Risen fought this entirely, promising never to give up his source, even as the issue went up the Supreme Court (which refused to hear the case), but technically ended with a court saying Risen had to give up his source. Risen still insisted that he would not, and he'd go to jail if he had to. This put Attorney General Eric Holder in a bit of a bind, as he'd promised not to put reporters in jail. Thus, last month, Holder blinked, saying the DOJ would not force Risen to give up his source. However, he was still supposed to testify, just not on that.

Last week, Risen took the stand and basically said absolutely nothing, leading the DOJ on Monday to tell the court that it wanted to "exclude James Risen as an unavailable witness." The filing is fairly amusing, as it admits that Risen is refusing to reveal anything:

Mr. Risen’s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything else he’s written). He will not. As a result, the government does not intend to call him as a witness at trial. Doing so would simply frustrate the truth-seeking function of the trial.

But as you read it, you realize that the key reason for the filing isn't to admit defeat, but rather to block Sterling's lawyers from using Risen's refusal to testify (or the fact that, in previous filings, the DOJ had said, directly, that without Risen's testimony, they couldn't convict Sterling).

This is true irrespective of whether he is called by the government or the defense—he is unavailable to both parties. The law makes clear that testimony that is not subject to meaningful cross-examination regarding non-collateral matters is antithetical to the purpose of a trial and should be excluded.

And, specifically, please oh please, don't let Sterling's lawyers mention anything about all of this to the jury:

Moreover, since Mr. Risen is not available as a witness on the central issue in the case, the defendant should be prohibited from commenting on Mr. Risen’s failure to appear or suggesting that the government has failed to meet its burden because it did not call him as a witness.

In response, the judge refused the DOJ's request to declare Risen "unavailable" for both sides, and everyone's figuring out how to proceed, with Sterling's lawyers saying that they want to use earlier Risen testimony about how he had multiple sources for his book.

Either way, the DOJ comes out of this looking terrible, and James Risen has made it clear that, if you're a whistleblower, you certainly can trust him not to reveal who you are to the government...

Filed Under: cia, doj, eric holder, evidence, james risen, jeffrey sterline, leaks, sources, whistleblowers

Former CIA Director May Face Charges Under Espionage Act, Showing How Ridiculous Espionage Act Is

from the will-it-happen? dept

In a surprising development, the New York Times reported late Friday that the FBI and Justice Department have recommended felony charges against ex-CIA director David Petraeus for leaking classified information to his former biographer and mistress Paula Broadwell. While the Times does not specify, the most likely law prosecutors would charge Petraeus under is the same as Edward Snowden and many other leakers: the 1917 Espionage Act.

It remains to be seen whether Petraeus will actually be indicted (given how high-ranking government officials so often escape punishment), and the decision now sits on Attorney General Eric Holder's desk. But this is a fascinating and important case for several reasons.

First, all of Petreaus's powerful D.C. friends and allies are about to be shocked to find out how seriously unjust the Espionage Act is—a fact that has been all too real for many low-level whistleblowers for years.

By all accounts, Petraeus's leak caused no damage to US national security. "So why is he being charged," his powerful friends will surely ask. Well, that does not matter under the Espionage Act. Even if your leak caused no national security damage at all, you can still be charged, and you can't argue otherwise as a defense at trial. If that sounds like it can't be true, ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. The judge in his case ruled that prosecutors did not have to prove his leak harmed national security in order to be found guilty.

It doesn't matter what Petraeus's motive for leaking was either. While most felonies require mens rea (an intentional state of mind) for a crime to have occurred, under the Espionage Act this is not required. It doesn't matter that Petraeus is not an actual spy. It also doesn't matter if Petraeus leaked the information by accident, or whether he leaked it to better inform the public, or even whether he leaked it to stop a terrorist attack. It's still technically a crime, and his motive for leaking cannot be brought up at trial as a defense.

This may seem grossly unfair (and it is!), but remember, as prosecutors themselves apparently have been arguing in private about Petraeus's case: "lower-ranking officials had been prosecuted for far less." Under the Obama administration, more sources of reporters have been prosecuted under the Espionage Act than all other administrations combined, and many have been sentenced to jail for leaks that should have never risen to the level of a criminal indictment.

Ultimately, no one should be charged with espionage when they didn't commit espionage, but if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board—no matter one's rank in the military or position in the government. So in one sense, this development is a welcome one.

For years, the Espionage Act prosecutions have only been for low-level officials, while the heads of federal agencies leak with impunity. For example, current CIA director John Brennan, former CIA director Leon Panetta, and former CIA general counsel John Rizzo are just three of many high-ranking government officials who have gotten off with little to no punishment despite the fact we know they've leaked information to the media that the government considers classified.

So hopefully Eric Holder does the right thing and indicts Petreaus like he has so many others with far fewer powerful connections. As Petraeus himself once said after CIA whistleblower John Kiriakou was convicted for leaking: "There are indeed consequences for those who believe they are above the laws." 

But if Petraeus does get indicted, perhaps we should start a new campaign: "Save David Petreaus! Repeal the Espionage Act!"

Republished from Freedom of the Press Foundation

Filed Under: cia, david petraeus, doj, espionage act, fbi, leaks

How The CIA's Torture Program Is Destroying The Key Foreign Power The US Had: The Moral High Ground

from the depressing dept

Over a year ago, we wrote about a wonderful piece in Foreign Affairs by Henry Farrell and Martha Finnemore, noting that the real "danger" of the Snowden and Manning revelations was that it effectively killed off the US's ability to use hypocrisy as a policy tool. Here was the key bit (though the whole article is worth reading):

The deeper threat that leakers such as Manning and Snowden pose is more subtle than a direct assault on U.S. national security: they undermine Washington’s ability to act hypocritically and get away with it. Their danger lies not in the new information that they reveal but in the documented confirmation they provide of what the United States is actually doing and why. When these deeds turn out to clash with the government’s public rhetoric, as they so often do, it becomes harder for U.S. allies to overlook Washington’s covert behavior and easier for U.S. adversaries to justify their own.

Few U.S. officials think of their ability to act hypocritically as a key strategic resource. Indeed, one of the reasons American hypocrisy is so effective is that it stems from sincerity: most U.S. politicians do not recognize just how two-faced their country is. Yet as the United States finds itself less able to deny the gaps between its actions and its words, it will face increasingly difficult choices -- and may ultimately be compelled to start practicing what it preaches.

The argument that Farrell and Finnemore made was that the revelations that came about because of the whistleblowing by Snowden and Manning made it such that this hypocrisy didn't function as well, because it made it much easier for others to simply call bullshit.

Now, a new article at Foreign Policy, by Kristin Lord, takes this argument even further, by looking at the CIA torture program and how it has totally undermined America's "soft power" in diplomacy. Lord, thankfully, makes it quite clear that the problem here is the CIA's program and not (as some have tried to argue) the release of the report about the program:

But the fault lies not with those who released the report, as some critics argue, but with those who permitted and perpetrated acts of torture, those who lied about it to America’s elected representatives, and those who willfully kept the president and senior members of the Bush administration in the dark. Their actions undermined not only American values, but also American influence and national security interests. In the words of a former prisoner of war, Sen. John McCain (R-Ariz.), the actions laid out in the Senate report “stained our national honor” and “did much harm and little practical good.”

But the key point of Lord's article, like the earlier one by Farrell and Finnemore, is that the US has long relied on its "soft power strategy" of convincing others to do things because it's "the right thing to do." The US has long presented itself as holding a higher moral ground. However, as Lord points out, the soft power the US uses goes beyond just the moral high ground:

While morality is a normative system of values and principles that guides just behavior, soft power is ultimately about influence. As Joseph Nye, the former dean of the John F. Kennedy School of Government at Harvard, has argued, there are many different ways to affect the behavior of others. One can coerce with threats. One can induce with incentives. Or one can exercise the power of attraction, co-opting others who want the same things you want through the legitimacy of your policies and the values upon which they’re founded. The latter is called soft power.

Moral authority facilitates soft power, but so do relationships, shared values, and interlinking interests. Given the ideological component of so many of the national security threats that face the United States going forward — and the inability of any one country to meet them alone — soft power can be an important part of the strategy to address these threats. But Americans will need to cultivate it.

As the article makes clear, it seems like US leaders don't seem to recognize just how important the US's "soft power" is -- and how fragile it might be in the wake of the revelations of the past couple of years. What Farrell and Finnemore described as the power of American hypocrisy is becoming increasingly clear, making it an increasingly less effective diplomatic tool. And others are seizing on this.

Lord's piece then goes into a detailed explanation of what the US needs to do if it wishes to continue exercising "soft power" to influence the world. And part of that is recognizing just how badly the US has screwed up over the past decade and a half (mostly in response to 9/11):

First, it has to “walk the walk,” aligning actions and values, rhetoric and deeds. This is understandably difficult in a country with complex and wide-ranging foreign policy interests, but the United States could do better in one key respect: weighing potential damage to America’s moral authority when considering policy options. Such considerations are often trumped, and not without cause. Policymakers are regularly forced to choose from a series of bad options, and when they do, clear and short-term consequences weigh more heavily than diffuse costs to notions like reputation. If the United States is serious about countering challenges to its national security interests and democratic ideals, however, this must change. Perceptions that the United States does not live up to its own values fundamentally undermine American power and inhibit the country’s ability to defend not just its own interests, but also universal standards of what is right and just. They undermine America’s ability to defend the time-proven value of the moral high ground, and they empower cynical actors eager to seize the propaganda advantage.

Unfortunately, that doesn't seem to be happening. Rather than using the release of the Snowden documents or the CIA terror report as a true chance to reflect, to admit where things went wrong, and to show a real commitment to doing better in the future and being transparent about it, it has instead resulted in typical partisan bickering, ridiculous and counterproductive defenses of harmful surveillance and torture, and very little actual introspection. It is this response that only helps perpetuate the continuing and rapid deflation of any moral high ground that the US had to stand on.

The basic stated values of the US are something worth spreading and perpetuating. But the only way you can legitimately do that is to admit when the country has strayed from those values, and that means a true and honest accounting of where things went wrong, along with a transparent and concrete plan for dealing with those failings and making sure they don't happen again. Unfortunately, that doesn't seem to be happening, and many in power don't seem to understand the damages this is doing to the US's power around the globe.

Filed Under: cia, cia torture, diplomacy, hypocrisy, moral high ground, soft power, torture