Intelligence Identities Protection Act
======================================

The Intelligence Identities Protection Act of 1982 (IIPA) criminalizes the intentional disclosure of the identity of a covert intelligence officer to any person not authorized to receive it.

John Kiriakou was ultimately convicted of one count of violating the IIPA, which he has described as arising from a single conversation in the summer of 2008. A journalist writing about the CIA's rendition, detention and interrogation program emailed him lists of names, asking if he could introduce the journalist to any of them; Kiriakou said he knew none of them. In a third email, the journalist asked about a person referred to only by the first name "John" in a passage of Kiriakou's own book, a short story about running into a former colleague on the tarmac as Abu Zubaydah was loaded onto a plane. Kiriakou confirmed the surname, adding that the man had probably retired and was living somewhere in Virginia: "That was it. I confirmed the surname of a former colleague. That was it."

The journalist, it later emerged, was not writing a book, he was working as an informal investigator for Guantanamo defense attorneys, without disclosing that relationship. He passed the name to Human Rights Watch; Human Rights Watch passed it to the Guantanamo defense attorneys; the defense attorneys filed a classified motion asking to interview the named officer; the Guantanamo judge flagged the name as possibly classified; and the information was routed back through the FBI to the CIA to John Brennan, completing the chain that led to Kiriakou's charge.

Kiriakou noted that the name he confirmed was never published or made public by anyone in the chain: "Nobody was harmed. Literally, the name that I confirmed was never made public. Never."

Five felonies, one conviction

Kiriakou says he was ultimately charged with five felonies: three counts of espionage, arising from his 2007 ABC News interview and a subsequent interview with the New York Times, one count of making a false statement his attorneys said was never clearly specified, and the single IIPA count. He notes he was only the second person in American history ever charged with violating the IIPA, and that the case had no precedent to draw on; the first person charged, he says, was a woman who was "actually a traitor." He and his attorneys found only a couple of Harvard Law Review articles arguing the law itself was unconstitutional, but with no prior defendant, no one had standing to challenge it in court. A related charge accusing him of outing an "overt" CIA employee, one publicly listed on LinkedIn as a CIA employee, was thrown out by the judge.

Prosecutors held their sentencing demand at 45 years for ten months before beginning to negotiate down, ultimately reaching a "best and final" offer of 30 months, of which he would serve 23. One of the assistant U.S. attorneys on the case, who Kiriakou says later became assistant attorney general for the criminal division under the Biden administration, told him to take a deal so that he might "live to meet your grandchildren, Mr. Kiriakou." Kiriakou says the threat behind the plea was explicit: refuse, and prosecutors would refile the espionage charges, add obstruction-of-justice charges, and seek 45 years. He weighed that against a ProPublica study published in November 2012 finding the federal government wins 98.2% of its cases; married with five children at home, he took the plea. Attorney Mark McDougall of Akin Gump Strauss told him bluntly that his problem was thinking the case was about justice rather than "mitigating damage," warning that a trial loss meant realistically 12 to 18 years. He ultimately accepted the deal, two and a half years, of which he served 23 months, and, though he had 11 attorneys, could afford to pay only six of them, filing for bankruptcy owing $1.15 million.

Kiriakou blew the whistle during the Bush administration, but it was the Obama administration that ultimately prosecuted him; he was sentenced in January 2013 and reported to prison in February 2013, losing his pension and his civil rights and unable to vote again until 2023.

In a separate telling, Kiriakou frames the charge itself as retaliatory: because he had exposed a crime, he says, the Obama administration secretly reopened the case against him, tapped his phones, and collected years of his emails, putting FBI surveillance teams on him before arriving at the IIPA violation. He again notes that the author whose inquiry prompted the charge never made the confirmed name public, so no actual danger to the officer was ever created, yet the Justice Department prosecuted him regardless.

As an expert witness

Kiriakou has since served as an expert witness in a federal trial, testifying about whistleblowing as a defense in a case invoking his own IIPA conviction as precedent; he says the jury, watching by Zoom, could reportedly be seen laughing at the prosecutor during his testimony.

The single-person pension amendment

John Kiriakou recounts that the amendment John McCain's staff drafted to restore his pension was written to cover "all Americans convicted of violating the Intelligence Identities Protection Act of 1981 between October 1st and October 31st of 2012", a description that, he notes, fits only himself.

Misclassified as espionage

The distinction between the Act and the Espionage Act had direct practical consequences for Kiriakou in prison. The Bureau of Prisons applied a public safety factor to him on the stated basis that he had committed espionage, which together with treason and sabotage falls within what the Bureau terms the greatest severity scale. His attorneys pointed out that he had been convicted under the Intelligence Identities Protection Act, which has nothing to do with espionage and is not in the same part of the U.S. Code, one of the reasons his judge and prosecutors had both recommended a minimum-security camp.

Kiriakou also notes the sentencing precedent. The only other person ever convicted of violating the Act served nine months of a five-year sentence at the facility popularly known as Camp Cupcake, so that even on the government's own theory of his conduct, precedent favoured him. He was charged with five counts under the Act.

His broader complaint is that many people in powerful positions have no idea what espionage is by definition, so that when they use the word it is effectively meaningless.

How the exchange went

The author who wrote to Kiriakou said he was writing a book on the Abu Omar rendition and asked for an introduction to someone who knew the case. Kiriakou answered that kidnapping had not been his line of work and that he did not know anyone involved. The author sent a list of a dozen names; Kiriakou did not recognise any of them. He sent a second list of another dozen, and Kiriakou told him he plainly knew the case better than Kiriakou did, who only knew what he had read in the Washington Post. The author then cited page 165 of Kiriakou's own first book, where a colleague was discussed, and asked for an introduction to him. Kiriakou's reply, recognising the first name and supplying the surname, was the felony.

The Justice Department's own objection was that he had not exposed the name but merely confirmed one already in the author's possession. In Kiriakou's account John Brennan's answer to that was "Run with it". Before Kiriakou the 1982 statute had been used once, against a CIA secretary who was sleeping with a member of the Ghanaian intelligence service and gave him the names of every recruited agent in Ghana; the government there executed them.

"Not a case about leaking"

Kiriakou has consistently separated the statute he was convicted under from the conduct he believes he was punished for. Speaking days after sentencing, he set the two side by side in a single sentence: "I''m going to prison ostensibly for violating the Intelligence Identities Protection Act of 1982. I believe, and my supporters believe, that this was not a case about leaking. This was a case about torture, and I believe I''m going to prison because I blew the whistle on torture."

He also describes a second use of the act, in the opposite direction. As a Senate Foreign Relations Committee investigator he was told that the CIA was placing torture-program officers under State Department cover precisely so that the act would attach to anyone who named them, the statute functioning less as protection for officers abroad than as a shield around a domestic program.

The plea, and the arithmetic behind it

Kiriakou describes the statute as the endpoint of a negotiation rather than the substance of the case. Charged with five felonies including three counts of espionage, he was "finally forced to take a plea to violating an obscure law", becoming "only the second American ever charged with violating the Intelligence Identities Protection Act."

The calculation was domestic: "I have five kids at home, and so I'm looking at 45 years. They offered me 30 months. I'd served 23. I took the deal."

His retrospective judgement has not moved: "zero regrets. I'd do it again tomorrow if I had the opportunity and the necessity for doing it."

The surname, and the asymmetry

Kiriakou's account of the conduct is a single word. A journalist writing a book on the Abu Omar rendition asked, after two lists of a dozen names had drawn blanks, about a man Kiriakou had mentioned in his own book by first name only. Kiriakou answered "oh, you're talking about John Doe, I don't know whatever happened to him, he's probably retired and living somewhere in Virginia." And, in his words: "when I said the last name, I said the surname, that was a felony. That was a violation of the Intelligence Identities Protection Act of 1982."

What he sets against it is that the statute had never been used: "nobody had ever been prosecuted for that. People use the names of covert operatives all the time." His comparison is David Petraeus, who as CIA director "revealed the names of 10 covert operatives to his girlfriend and biographer" and "wasn't even charged." The reason Kiriakou was, on his reading, has nothing to do with the name: "the CIA was so angry that I had exposed the torture program, that I had aired the agency's dirty laundry, that they used that confirmation of the last name to go after me."

What was actually charged, and what survived

He faced 45 years initially, on three counts of espionage, "and I hadn't committed espionage, of course", plus the Intelligence Identities Protection Act count and a charge of making a false statement, "where we were never exactly clear on what the false statement was supposed to be." The false-statement charge was eventually dropped and all three espionage charges were dropped.

The 2008 telephone call

Kiriakou has reconstructed the conversation that produced the single count he pleaded to, which took place in 2008, four years before the charge. A reporter writing a book on the rendition programme asked whether he knew anyone who could be interviewed for it.

His answer was that he did not: he had had nothing to do with rendition and had really never met any of those men. The reporter then asked about the man mentioned in Kiriakou's own book, encountered at an airport in Pakistan. Kiriakou said he could not remember the name. The reporter supplied the first name. Kiriakou then said where he supposed the man now was, probably retired and living somewhere in Northern Virginia.

His summary of what that amounted to is one sentence: "that was a felony, and I served two years in prison for that conversation."

In this telling he dates the statute to 1982, and distinguishes the count sharply from the business-card charges, because the man whose card was passed had never been undercover at all.

The information the government did not have to disclose

Kiriakou says his investigator developed information indicating that the reporter had not obtained the name from him at all, but from a disgruntled former CIA officer in Bethesda, Maryland.

Taken to the prosecutors, the point produced an answer he reports in two halves. First, that he could not prove the government had withheld the information, nor that it had ever had it. Second, an offer: they would drop the count under this statute, and go after him on the three espionage charges instead.

The night of research

Kiriakou's decision to refuse the best and final offer was not taken on instinct. "My wife and I stayed up literally all night long researching this law called the Intelligence Identities Protection Act. I was the first American charged with this crime, and so there were no precedents. There were two articles from the Harvard Law School Journal saying that the law was probably unconstitutional, but no one ever had standing to challenge it."

What that produced was a decision he now describes as belief rather than calculation: "So I decided I was going to turn this deal down and I was going to go to trial. Now I was facing 45 years in prison and they're offering me two and a half. And I said, I'm going for it. I'm innocent. I'm going to prove I'm innocent."

The answer, from a lead attorney "who has a reputation for being very difficult to get along with," is the line he now uses to summarise his entire experience of the federal system: "you know what your problem is? Your problem is you think this is about justice, and it's not about justice. It's about mitigating damage. Take the deal." He accepted it on the spot, "I realised at that moment that he's right. It's not about justice. It's not about who's right. It's not about public service. It's about accepting the fact that you're screwed and trying to come out of it with the best possible ending."

Two lists of a dozen names

The 2017 telling of how the confirmation happened is the most compressed in the corpus and puts the reporter's persistence at the centre of it. A reporter for ABC News wrote to Kiriakou asking for help with a book on the rendition programme; Kiriakou told him he knew nothing about rendition and knew no one involved in it. The reporter sent a list of a dozen names. Kiriakou knew nobody on it. The reporter sent a second list of a dozen names, and Kiriakou answered, "you obviously know this issue so much better than I do. I really can't help you."

What finally worked was not a list but a memory: "well, in your first book, what about a guy that you met in Pakistan, on the tarmac of an airport?" Kiriakou's reply, given in full, is the offence: "oh, you're talking about John Doe. I don't know whatever happened to him, he's probably retired and living in Virginia somewhere."

His summary of what made that criminal is a single clause, "that was a felony, because I had confirmed the name", set against the observation that "that happens in Washington every single day. If you pick up a copy of the New York Times or the Washington Post, you're going to see classified information."

Intent, and the witness for the defence

In February 2013 Kiriakou described a defence he was not permitted to mount. The author of the Act itself volunteered to serve as an expert witness for him. The argument that witness would have supported was that previous judicial rulings had made intent the crux of the law, so that "the government had to prove that I had the intent to harm the national security." The judge, he says, "dismissed those precedents," and he adds that she "should have known better."

Transcription note: the 2013 auto-caption garbles the clause identifying the volunteer, it renders as "the on there at the intelligence activities protection act", and the reading given here, that it was the author of the statute, is the one the surrounding sentence supports. The artifact is flagged rather than silently repaired.

See also

- Espionage Act
- John Kiriakou
- John Brennan
- Leonie Brinkema
