Overcriminalization
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Overcriminalization is John Kiriakou's term for the United States' habit of making too much illegal: 5% of the world's population but 25% of its prisoners, "worse than China, Russia, Iran", with Congress adding roughly 500 new felonies a decade. He has also put the figure as 500 new federal crimes between 2012 and 2022 alone, "not 500 new laws, 500 new crimes, things that in 2011 were legal and in 2022 were felonies." Kiriakou has repeated the 5%/25% statistic, which he traces to a Washington Post figure, and the "50 new felonies a year" estimate, the product of his own research, adding up to roughly a thousand new felonies over 20 years, in numerous other appearances. His signature example is a mid-level NOAA employee in Hawaii who ran weekend whale-watching trips; after a tourist whistled at an orca feeding on a seal, she was charged with a felony under the Endangered Species Act for interfering with a wild animal's feeding, and lost her job, pension, boat and business partnership even after pleading to a misdemeanor. Kiriakou has told a fuller version of the same NOAA case in other appearances: after the FBI raided the woman's home, seized her computers and DVDs, and pursued the felony charge for five years, she lost her boat, her business, and her federal pension before the charge was finally reduced to a misdemeanor, "she lost her boat, she lost her business, NOAA fired her." In further retellings he has specified that the case dragged on five and a half years, that the FBI raided her boat business after the whistling incident, and that she ultimately spent about $250,000 defending herself before the felony was knocked down to a misdemeanor.

The grouper and the kingdom-builders (Austin and Matt)

John Kiriakou adds a second overcriminalization case to the NOAA whale-watcher: an Alabama fisherman charged with a felony because one grouper measured 11 inches instead of 12, losing his boat, business and license. In a separate telling of the same case, Kiriakou says the fisherman, upon being boarded by a US Fisheries inspection boat, tried to throw the undersized grouper back while it was still alive rather than keep it, and was charged with a felony anyway. He has told the same story elsewhere as an example alongside the NOAA case: the felony conviction cost the fisherman his right to vote and to own a firearm, over a grouper one inch under the legal size limit. The reason such cases happen, he says, is promotion: FBI agents and prosecutors, who win "100% guilty verdicts", advance by "kingdom building," every assistant U.S. attorney seeing himself on a path to Congress or a $6-million law-firm office, "and they're going to do it on your back." He has made the same point elsewhere in near-identical terms: prosecutors get promoted for the toughest sentences, not for leniency, because most of them see themselves one day in Congress, running for governor, or in the corner office of a top law firm, and Kiriakou says prosecutors don't get promoted by not prosecuting you, just as FBI agents don't get promoted by not investigating you. In the same appearance, Kiriakou connected the dysfunction to a broken two-party system, arguing for viable third parties on the strength of his own experience touring with Gary Johnson's 2016 Libertarian campaign.

Kiriakou cites the book Three Felonies a Day, by Harvard law professor Harvey Silverglate, for the thesis that the average American unknowingly commits roughly three felonies a day given how over-regulated the country has become, meaning the government can, if it wants to, prosecute almost anyone it targets; he adds that in his own case prosecutors "made up felonies that I didn't even commit." He calls the tactic prosecutors use to force pleas "charge stacking": piling on every applicable charge, then agreeing to drop most of them once the defendant is financially and psychologically bankrupt enough to accept a plea to one or two counts. Citing ProPublica, he says this produces a 98.2% government win rate on federal cases, achieved almost entirely through plea bargains, pressure that falls on innocent and guilty defendants alike. A related tactic he calls "venue shopping": prosecutors file in the federal district most likely to produce the harshest sentence. He was moved to the Eastern District of Virginia, the "espionage court," where, he says, no national security defendant has ever won a case; he, Jeffrey Sterling, and Edward Snowden were all charged there.

Kiriakou describes CIA officer Jeffrey Sterling, an African-American case officer and Farsi linguist who was passed over for a posting to Europe because of his race, as a parallel case: Sterling was later convicted of espionage in the Eastern District of Virginia on what Kiriakou calls essentially no real evidence, metadata showing 52 phone calls with journalist James Risen over 18 months, which Sterling testified under oath concerned his own discrimination lawsuit against the CIA, not classified information. A jury consultant who had worked the O.J. Simpson, Zimmerman, and William Kennedy Smith cases reviewed Kiriakou's own case pro bono and told him he had no chance in the Eastern District of Virginia, because its jury pool is dominated by intelligence-community and government employees. Facing 45 years in prison, Kiriakou accepted a rare 11(c)(1)(c) plea agreement, a fixed sentence written in stone that the judge cannot alter, pleading guilty in October 2012 to a fixed two-and-a-half-year term. The presiding judge, a Reagan appointee on the bench since 1987, had initially called the agreement "fair and appropriate," before later telling him at sentencing that she wished she could give him the maximum.

Kiriakou connects this prosecutorial culture to mandatory minimum sentencing, which he says is problematic because it strips judges of discretion, the mandatory minimum effectively becomes the maximum sentence regardless of the individual circumstances of the case. He noted that in the week of a May 2017 interview, Attorney General Jeff Sessions had reinstated the Bush administration's mandatory-minimum policy, reversing Obama-era efforts to move away from it. He quotes former U.S. Attorney General Robert Jackson, later a Nuremberg judge and Supreme Court justice, on the danger of a prosecutor who acts from malice rather than fairness: "While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he's one of the worst." As a further illustration of overcriminalization's reach beyond his signature cases, Kiriakou tells of a friend's wife, a 62-year-old professor's wife, who was prosecuted and given six months of house arrest after arranging to get medication from a friend once she lost her health insurance during a university strike. He also argues that U.S. prisons teach no vocational skills, so people convicted of drug offenses are released back into their old neighborhoods with no option but to sell drugs again, a structural driver, he says, of high recidivism.

By contrast, Kiriakou describes a 1997 case in which a CIA colleague was found to have leaked terrorism-related information to a CNN-commentator boyfriend during "pillow talk"; she received only a letter in her personnel file, a four-week suspension without pay, and a promotion freeze, asking how, in one generation, the system went from that outcome to defendants facing the rest of their lives in a maximum-security penitentiary.

The FARA "process crime"

Kiriakou cites his own brush with the Foreign Agents Registration Act (FARA) as a related instance of process crime rather than substantive wrongdoing: about fifteen years earlier, he was paid $1,200 by the Abu Dhabi Chamber of Commerce to write three op-eds, and duly registered the payment on the Department of Justice's FARA website, with no consequence, then or since. He notes FARA violations went essentially unprosecuted for decades until about five years before 2023, when both the Trump and Biden Justice Departments began aggressively pursuing the filing requirement as an easy path to convictions, a shift he frames as bipartisan, not partisan.

In a separate conversation, immediately after discussing the whale-whistling case, Kiriakou illustrated the flip side of an overloaded justice system, legitimate cases the FBI won't touch, with his own Athens bank fraud report, in which an agent told him without "terrorism, China, or January 6th" they weren't interested. He has told a related story about the limits of his own willingness to report wrongdoing: he once took a lucrative six-week international job, discovered the company was laundering money, downloaded 15,000 pages of documents onto a thumb drive, resigned, and tried to report it to the FBI.

Kiriakou also connects overcriminalization's machinery to the treatment of whistleblowers more broadly, arguing that false accusations of sexual impropriety against whistleblowers like Julian Assange, DeHart, and Joshua Schulte function as character assassination that isolates them from their natural allies and supporters.

See also

- Private prison system
- Doing Time Like a Spy
