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Protecting Torturers, Prosecuting Whistleblowers | The Nation

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Protecting Torturers, Prosecuting Whistleblowers

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This article originally appeared at TomDispatch.com. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com.

Here is what military briefers like to call BLUF, the Bottom Line Up Front: no one except John Kiriakou is being held accountable for America’s torture policy. And John Kiriakou didn’t torture anyone, he just blew the whistle on it.

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Peter Van Buren
Peter Van Buren spent a year in Iraq as a State Department Foreign Service Officer serving as Team Leader for two...

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In a Galaxy Far, Far Away

A long time ago, with mediocre grades and no athletic ability, I applied for a Rhodes Scholarship. I guess the Rhodes committee at my school needed practice, and I found myself undergoing a rigorous oral examination. Here was the final question they fired at me, probing my ability to think morally and justly: You are a soldier. Your prisoner has information that might save your life. The only way to obtain it is through torture. What do you do?

At that time, a million years ago in an America that no longer exists, my obvious answer was never to torture, never to lower oneself, never to sacrifice one’s humanity and soul, even if it meant death. My visceral reaction: to become a torturer was its own form of living death. (An undergrad today, after the “enhanced interrogation” Bush years and in the wake of 24, would probably detail specific techniques that should be employed.) My adviser later told me my answer was one of the few bright spots in an otherwise spectacularly unsuccessful interview.

It is now common knowledge that between 2001 and about 2007 the United States Department of Justice (DOJ) sanctioned acts of torture committed by members of the Central Intelligence Agency and others. The acts took place in secret prisons (“black sites”) against persons detained indefinitely without trial. They were described in detail and explicitly authorized in a series of secret torture memos drafted by John Yoo, Jay Bybee, and Steven Bradbury, senior lawyers in the DOJ’s Office of Legal Counsel. (Office of Legal Counsel attorneys technically answer directly to the DOJ, which is supposed to be independent from the White House, but obviously was not in this case.) Not one of those men, or their Justice Department bosses, has been held accountable for their actions.

Some tortured prisoners were even killed by the CIA. Attorney General Eric Holder announced recently that no one would be held accountable for those murders either. “Based on the fully developed factual record concerning the two deaths,” he said, “the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

Jose Rodriguez, a senior CIA official, admitted destroying videotapes of potentially admissible evidence, showing the torture of captives by operatives of the US government at a secret prison thought to be located at a Vietnam War era airbase in Thailand. He was not held accountable for deep-sixing this evidence, nor for his role in the torture of human beings.

John Kiriakou Alone

The one man in the whole archipelago of America’s secret horrors facing prosecution is former CIA agent John Kiriakou. Of the untold numbers of men and women involved in the whole nightmare show of those years, only one may go to jail.

And of course, he didn’t torture anyone.

The charges against Kiriakou allege that in answering questions from reporters about suspicions that the CIA tortured detainees in its custody, he violated the Espionage Act, once an obscure WWI-era law that aimed at punishing Americans who gave aid to the enemy. It was passed in 1917 and has been the subject of much judicial and Congressional doubt ever since. Kiriakou is one of six government whistleblowers who have been charged under the Act by the Obama administration. From 1917 until Obama came into office, only three people had ever charged in this way.

The Obama Justice Department claims the former CIA officer “disclosed classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities.”

The charges result from a CIA investigation. That investigation was triggered by a filing in January 2009 on behalf of detainees at that contained classified information the defense had not been given through government channels, and by the discovery in the spring of 2009 of photographs of alleged CIA employees among the legal materials of some detainees at Guantánamo. According to one description, Kiriakou gave several interviews about the CIA in 2008. Court documents charge that he provided names of covert agency officials to a journalist, who allegedly in turn passed them on to a Guantánamo legal team. The team sought to have detainees identify specific CIA officials who participated in their renditions and torture. Kiriakou is accused of providing the identities of CIA officers that may have allowed names to be linked to photographs.

Many observers believe however that the real “offense” in the eyes of the Obama administration was quite different. In 2007, Kiriakou became a whistleblower. He went on record as the first (albeit by then, former) CIA official to confirm the use of waterboarding of Al Qaeda prisoners as an interrogation technique, and then to condemn it as torture. He specifically mentioned the waterboarding of Abu Zubaydah in that secret prison in Thailand. Zubaydah was at the time believed to be an Al Qaeda leader, though more likely was at best a mid-level operative. Kiriakou also ran afoul of the CIA over efforts to clear for publication a book he had written about the agency’s counterterrorism work. He maintains that his is instead a First Amendment case in which a whistleblower is being punished, that it is a selective prosecution to scare government insiders into silence when they see something wrong.

If Kiriakou had actually tortured someone himself, even to death, there is no possibility that he would be in trouble. John Kiriakou is 48. He is staring down a long tunnel at a potential sentence of up to forty-five years in prison because in the national security state that rules the roost in Washington, talking out of turnabout a crime has become the only possible crime.

Welcome to the Jungle

John Kiriakou and I share common attorneys through the Government Accountability Project, and I’ve had the chance to talk with him on any number of occasions. He is soft-spoken, thoughtful and quick to laugh at a bad joke. When the subject turns to his case, and the way the government has treated him, however, things darken. His sentences get shorter and the quick smile disappears.

He understands the role his government has chosen for him: the head on a stick, the example, the message to everyone else involved in the horrors of post-9/11 America. Do the country’s dirty work, kidnap, kill, imprison, torture, and we’ll cover for you. Destroy the evidence of all that, and we’ll reward you. But speak out, and expect to be punished.

Like so many of us who have served the US government honorably only to have its full force turned against us for an act or acts of conscience, the pain comes in trying to reconcile the two images of the US government in your head. It’s like trying to process the actions of an abusive father you still want to love.

One of Kiriakou’s representatives, attorney Jesselyn Radack, told me, “It is a miscarriage of justice that John Kiriakou is the only person indicted in relation to the Bush-era torture program. The historic import cannot be understated. If a crime as egregious as state-sponsored torture can go unpunished, we lose all moral standing to condemn other governments’ human rights violations. By ‘looking forward, not backward,’ we have taken a giant leap into the past.”

One former CIA covert officer, who uses the pen name “Ishmael Jones,” lays out a potential defense for Kiriakou: “Witness after witness could explain to the jury that Mr. Kiriakou is being selectively prosecuted, that his leaks are nothing compared to leaks by Obama administration officials and senior CIA bureaucrats. Witness after witness could show the jury that for any secret material published by Mr. Kiriakou, the books of senior CIA bureaucrats contain many times as much. Former CIA chief George Tenet wrote a book in 2007, approved by CIA censors, that contains dozens of pieces of classified information—names and enough information to find names.”

If only it was really that easy.

Never Again

For at least six years it was the policy of the United States of America to torture and abuse its enemies or, in some cases, simply suspected enemies. It has remained a US policy, even under the Obama administration, to employ “extraordinary rendition”—that is, the sending of captured terror suspects to the jails of countries that are known for torture and abuse, an outsourcing of what we no longer want to do.

Techniques that the United States hanged men for at Nuremburg and in post-war Japan were employed and declared lawful. To embark on such a program with the oversight of the Bush administration, learned men and women had to have long discussions, with staffers running in and out of rooms with snippets of research to buttress the justifications being so laboriously developed. The CIA undoubtedly used some cumbersome bureaucratic process to hire contractors for its torture staff. The old manuals needed to be updated, psychiatrists consulted, military survival experts interviewed, training classes set up.

Videotapes were made of the torture sessions and no doubt DVDs full of real horror were reviewed back at headquarters. Torture techniques were even reportedly demonstrated to top officials inside the White House. Individual torturers who were considered particularly effective were no doubt identified, probably rewarded, and sent on to new secret sites to harm more people.

America just didn’t wake up one day and start slapping around some Islamic punk. These were not the torture equivalents of rogue cops. A system, a mechanism, was created. That we now can only speculate about many of the details involved and the extent of all this is a tribute to the thousands who continue to remain silent about what they did, saw, heard about or were associated with. Many of them work now at the same organizations, remaining a part of the same contracting firms, the CIA and the military. Our torturers.

What is it that allows all those people to remain silent? How many are simply scared, watching what is happening to John Kiriakou and thinking: not me, I’m not sticking my neck out to see it get chopped off. They’re almost forgivable, even if they are placing their own self-interest above that of their country. But what about the others, the ones who remain silent about what they did or saw or aided and abetted in some fashion because they still think it was the right thing to do? The ones who will do it again when another frightened president asks them to? Or even the ones who enjoyed doing it?

The same Department of Justice that is hunting down the one man who spoke against torture from the inside still maintains a special unit, sixty years after the end of World War II, dedicated to hunting down the last few at-large Nazis. They do that under the rubric of “never again.” The truth is that same team needs to be turned loose on our national security state. Otherwise, until we have a full accounting of what was done in our names by our government, the pieces are all in place for it to happen again. There, if you want to know, is the real horror.

Note to readers: What’s next for Kiriakou? The District Court for the Eastern District of Virginia will begin Classified Information Procedures Act hearings in his case on September 12. These hearings, which are closed to the public, will last until October 30 and will determine what classified information will be permitted during trial. Kiriakou has pled “not guilty” to all charges and is preparing to go to trial on November 26.

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