No Comment — December 21, 2007, 11:33 am

When Does an FBI Investigation Look Like Omertà?

In Italy’s Mezzogiorno, haven since the Renaissance to well-organized criminal gangs with their own elaborate social structure, there is a code of conduct known as “omertà.” Letizia Paoli defines it, in her classical study Mafia Brotherhoods, as “the categorical prohibition of cooperation with state authorities or reliance on its services, even when one has been victim of a crime.” The prohibition aims to obstruct law enforcement, namely, to hamper the discovery of crimes and prosecution of the perpetrators. Those who break the honor code can be subject to immediate and extremely violent retribution. Today we see the announcement of an FBI investigation. But this doesn’t look like a normal FBI investigation. In fact it looks remarkably like omertà.

John Kiriakou, a retired CIA agent, recently made dramatic appearances on ABC and NBC in which he discussed the CIA’s use of waterboarding techniques and laid out in some detail the process for vetting and approving the use of these techniques. Strictly speaking, nothing Kiriakou said was really news. The use of waterboarding is long known, and well documented, particularly due to the investigation and writing of reporters such as the New Yorker’s Jane Mayer, the Washington Post’s Dana Priest, ABC News’s Brian Ross and Time Magazine’s Adam Zagorin. It even came out in statements made repeatedly by Administration officials in testimony before oversight bodies, and Vice President Cheney decided to make the official use of waterboarding a subject of his typically dark humor when, in a interview with a Dakotan radio station, he compared it to bobbing for apples at a country fair.

Today we learn that the FBI has, at the request of the CIA, launched a criminal investigation targeting Kiriakou. His supposed crime? The “unauthorized disclosure of classified information.” McClatchy’s Washington Bureau reports:

The department opened the criminal probe of Kiriakou after receiving a ”criminal referral” from the CIA, according to officials familiar with the process. The officials requested anonymity because criminal referrals aren’t made public.

The investigation comes as the White House and the CIA face congressional investigations and court battles over a 2005 decision to destroy videotapes of Zubaydah’s interrogation and that of another al Qaeda member while they were being held secretly by the CIA.

So why is it harmless when Dick Cheney talks about the CIA’s use of waterboarding, but a violation of national security concerns when Kiriakou does? The answer to that is fairly obvious. If you disclose things classified as “secret” for purposes of advancing the political agenda of the Bush Administration, things are fine. If you disclose things classified as “secret” and articulate even the slightest criticism, then you’re obviously a criminal. We call this using the criminal justice system to attack perceived political adversaries. A Bush Justice Department specialty.

But the Kiriakou case presents a number of significant wrinkles.

According to sources within the intelligence community with whom I have spoken, Kiriakou’s appearances provoked a “healthy debate” inside the CIA. Many high-level figures were elated to see the telegenic Kiriakou vigorously defend the agency on a subject on which it is already taking a lot of flak. They noted that the efforts of the community’s leading figures, General Hayden and Admiral McConnell, to fend off criticism from Congress and the public, have “fallen flat.” (Actually, says the source, “falling flat is putting it pretty generously. The public seems to have decided that they don’t really believe Hayden or McConnell on this issue. That’s bad news for us.”) Since the leaders of the intelligence community are under constant attack these days both from Democrats and Republicans, this can’t really be surprising. Kiriakou was, simply put, far more credible and appealing as a media figure.

But while Kiriakou’s appearance on ABC scored high marks, the real concern focused on his appearance with Matt Lauer on NBC. It was not Kiriakou’s discussion of waterboarding which gave rise to concern, according to the source, but the fact that he described the decision-making process, linking it straight to the Department of Justice and the White House. Figures at Justice and in the National Security Council were said to have been furious over the public exposure of their intimate involvement in decisions to apply specific torture techniques in specific cases.

Why would they be concerned? The answers here are simple. Waterboarding was and is a serious crime. Those who gave the go ahead to use it bear direct criminal responsibility and are likely at some point to be prosecuted. Anonymity is a key aspect of the culprits’ defense. Don’t you wonder why those tapes were destroyed? And let’s all maintain a healthy level of skepticism about that mysterious fire that occurred earlier this week in Vice President Cheney’s offices. So what was the offense? Kiriakou pulled back the covers on the involvement of the White House and cabinet officers in the individual decisions to torture.

And this led to a decision to go after Kiriakou. “You’ll read that Justice got a request for a criminal investigation. That’s literally true. It’s highly misleading. The fact is that folks at Justice and the White House were clamoring for it. They want to make an example of Kiriakou.” Another typical feature in the Bush presidency: decisions to use the criminal justice system to go after people start at the top and work their way down. Some, of course, would call this a badge of tyranny.

And why are they targeting Kiriakou? That part’s simple. His remarks are having some predictable repercussions in Congress, where inquiries into the use of waterboarding and similar torture devices are now being discussed. Kiriakou revealed a number of Justice Department brush-off answers to be lies, and his comments provide reason to suspect that a number of senior Bush Administration officials made false statements to Congressional inquiries. In other words, they view Kiriakou as a snitch. And they’ve decided to retaliate against him.

But the action is clearly intended as a signal to others who have direct knowledge of the torture regime. If you talk publicly about this, we’ll come after you. It’s designed to stop leaks, block exposés and impede Congressional investigation. . . and to make the ultimate prosecution of the policy-maker perpetrators that much more difficult to put together. It’s a reminder that this Administration may be the Government, but it has adopted the behavior patterns of a criminal gang.

And in this sense, the investigation of Kiriakou may be an FBI probe. But it has the classical hallmarks of a crime boss engaged in enforcement of the code of silence.

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