Eric Holder served as Attorney General of the United States under Barack Obama. The Justice Department he ran reopened the closed investigation of John Kiriakou and brought the January 2012 indictment that ended in a twenty-three-month prison sentence.
The reopened case
The FBI investigated Kiriakou from December 2007 to December 2008 over his ABC News interview, and the Bush administration’s Justice Department then sent his attorneys a declination letter, reasoning that Human Rights Watch, Amnesty International and the International Committee of the Red Cross had all already published findings that the CIA was torturing prisoners, and that it was the worst-kept secret in Washington.[1] Three weeks later Obama was inaugurated, and the case was reopened in secret.[2]
Who asked for it reopened is told three different ways across the corpus. In one account John Brennan, newly installed as deputy national security adviser for counterterrorism, asked the Justice Department directly.[2] In another it was the CIA that asked Holder.[3] In a third it was Obama himself who asked Holder to reopen the investigation, after which Holder’s Justice Department brought three counts of espionage and one of violating the Intelligence Identities Protection Act.[4] The variance has never been resolved in Kiriakou’s telling.
The memo
Fifteen thousand pages of discovery followed the indictment. Among them was a memo from Brennan to Holder instructing him to charge Kiriakou with espionage. Holder wrote back that his people did not think Kiriakou had committed espionage. Brennan wrote back again: charge him anyway, and make him defend himself.[5] Kiriakou was charged in January 2012 with five felonies including three counts of espionage, a charge that can carry the death penalty; the espionage counts were dropped once he had gone bankrupt under $1.15 million in legal fees.[6][5]
The leak prosecutions
Between 1917 and 2009 three Americans were charged under the Espionage Act for providing information to the press. Obama and Holder brought eight such prosecutions in a single administration.[7] Holder’s Justice Department also threatened reporters with criminal prosecution as a matter of routine, and the reporters involved in Kiriakou’s own case were actively threatened.[8]
The request to reopen
Kiriakou names Holder as the recipient of the request that revived his case. The Bush Justice Department had investigated him for a year, from December 2007 to December 2008, and concluded that he had not committed a crime; the file was closed. “It was the Obama administration, specifically John Brennan, who personally asked Eric Holder to reopen the case against me, secretly.”[9]
The dinner party, and the reopened case
Kiriakou’s account of Holder turns on having met him socially first. It was at a small dinner party at Barbra Streisand’s house, while Obama was still running; Holder “presented as an incredibly enlightened, pro-civil liberties, decent fellow,” sat next to him and “agreed with me on everything.”[10][11]
The sequence he sets against that is the prosecution. The FBI opened an investigation within twenty-four hours of his December 2007 ABC interview; at the very end of the Bush administration the Justice Department concluded he had not committed a crime and closed it. Three months later Holder, newly Attorney General, ordered it reopened — “and so they reopened it and they were able to manufacture five felony charges against me.”[12]
Kiriakou’s framing of who did this is deliberate: not “some Dick Cheney type”, not “a neocon nut” — “it’s a liberal.” He notes the asymmetry that bankers found Holder equally enlightened, because he did not go after them either. Asked whether the plan was to destroy someone who told the truth, his answer is that deterrence is the point: “the only way to frighten anyone who might consider becoming a whistleblower … is to make an example of the person who does."[10][13][14]
"My people don’t think he committed espionage”
The memo Kiriakou found in discovery has Holder pushing back before giving way. Brennan’s request was to charge him with espionage; Holder’s reply was “My people don’t think he committed espionage”; Brennan’s answer to that was “Charge him anyway and make him defend himself.” The charges were brought, held until Kiriakou was bankrupt, and then dropped.[15]
Kiriakou frames the significance in institutional rather than personal terms, and notes that he had met Holder socially — “Here’s Eric Holder who I’ve had dinner with on occasion, presents as a very progressive open…” — before letting his interviewer complete the point: that the head of the Justice Department was willing to bring a charge his own lawyers did not believe in, in the hope of breaking the defendant. His answer to that characterisation is one word: “Yep.”[16][17]