Human rights and open government advocates on Tuesday harshly criticized the Obama administration over the criminal charges brought against an ex-CIA officer for allegedly leaking to reporters the names of two agency operatives involved in the brutal interrogation of terrorism detainees.
John Kiriakou, 47, the CIA's former director of counterterrorism operations in Pakistan, was arraigned in federal court in Virginia on Monday on charges of espionage, lying to investigators and disclosing the identity of a covert operative. He was released on bond.
His attorney, Plato Cacheris, said he would plead not guilty to the charges, which carry a maximum penalty of 30 years in prison.
Kiriakou, of Arlington, Va., is the sixth government official charged with espionage by the Obama administration for leaking classified information to reporters. The espionage law, enacted in 1917, was used only three times prior to Obama's election to prosecute leaks to the media.
Jesselyn Radack, an attorney with the Government Accountability Project, which defends whistle-blowers, called Kiriakou's arrest the most recent example of a broader administration crackdown against federal officials who disclose illegal, abusive or wasteful government activity.
"This is being done to send a chilling message to whistle-blowers, journalists and defense lawyers to keep quiet," Radack said.
Kiriakou allegedly leaked information to reporters about two CIA agents directly involved in interrogations of terrorism suspects during the Bush administration that used waterboarding -- a simulated drowning technique that President Obama has himself described as torture.
In 2009, President Obama declared that while waterboarding was torture and illegal, he would not pursue U.S operatives or officials who performed it or authorized its use.
Daniel Ellsberg, who leaked the "Pentagon Papers" in 1971, revealing a long history of government duplicity over the Vietnam War, said it was brazenly hypocritical to prosecute Kiriakou for leaking information related to waterboarding while those who performed it were granted immunity.
"You're criminalizing the revelation of illegality and you're decriminalizing the illegality -- the torture," Ellsberg said.
Ellsberg added that there had been no prosecution of the former head of the CIA's clandestine service, who admitted ordering the destruction of 92 videotapes of brutal interrogations of al-Qaeda suspects in Thailand.
"Is that person prosecuted?" Ellsberg said. "Absolutely not."
Justice Department officials, meanwhile, came down hard on Kiriakou, saying his unauthorized leaks to a New York Times reporter ultimately exposed the identity of a covert CIA operative to the defense counsel for a terrorism detainee in Guantanamo Bay.
According to news reports alluded to in court documents, that covert officer was responsible for the interrogation of Abu Zubaydah, an al-Qaeda lieutenant captured in Pakistan who was waterboarded 86 times in one month at the military prison in Guantanamo Bay in 2002, classified documents disclosed by the Obama administration revealed.
The operative's name was not published by the Times, prosecutors said, but was passed along to defense attorneys who included information on the officer in a classified legal filing.
Kiriakou also allegedly provided information on the identity of a second CIA agent, Deuce Martinez, according to prosecutors. Martinez, who was not a clandestine officer, was identified in a 2008 front-page story in the New York Times detailing the interrogation of Zubaydah and other al-Qaeda figures. Martinez interrogated al-Qaeda suspects but did not participate in waterboarding or other harsh techniques, according to the article.
Attorney General Eric Holder said the leaks jeopardized national security. "Safeguarding classified information, including the identities of CIA officers involved in sensitive operations, is critical to keeping our intelligence officers safe and protecting our national security," Holder said in a statement.
Yet even some strong supporters of the government's right to prosecute leakers questioned whether the Obama administration's use of the rarely invoked espionage statute against Kiriakou was warranted.
Glenn Carle, a former CIA clandestine operations officer and a top counterterrorism official during the George W. Bush administration, said he fully supported the prosecution of government leakers. "I don't accept that it's a routine matter, and that it's something we should condone," he said.
Nevertheless, Carle called the espionage charge against Kiriakou "chilling," and noted that it had previously been restricted almost solely for use against spies in the employ of foreign powers.
"That's what is really surprising and chilling about all this," Carle said. "It's turning to domestic uses a pretty heavy piece of artillery."
CIA officials, however, expressed no concerns over the prosecution. In a statement Monday, Gen. David H. Petraeus, the CIA director, said the agency "fully supported the investigation from the beginning and will continue to do so."
"Given the sensitive nature of many of our Agency's operations and the risks we ask our employees to take, the illegal passage of secrets is an abuse of trust that may put lives in jeopardy," Petraeus said.
Human rights advocates, however, questioned whether CIA and Justice Department officials may have a separate rationale for pursuing Kiriakou.
Scott Horton, a professor at Columbia Law School and a prominent human rights attorney, noted that the names of CIA operatives that Kiriakou allegedly leaked to the media would be extremely useful to foreign prosecutors pursuing possible war crimes charges against U.S. intelligence agents and officials.
Such probes, focusing on the use of torture against detainees and the kidnapping of terror suspects, known as "extraordinary rendition," are under way in Spain, Italy and Germany.
"You have to put this in the context of pending criminal investigations overseas which target these very people," Horton said. "That is why the CIA is so concerned."
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