Kiriakou gave an interview to ABC describing waterboarding on December 10, 2007, in order to defend the practice. The government did not charge him with any crimes at the time. Three years prior, Newsweek had reported on a secret memo from Yoo justifying the use of waterboarding on Abu Zubaydah. None of the people who leaked that memo were charged with crimes. Three months prior to Kiriakou's interview, "current and former high-ranking U.S. intelligence officials" said that three prisoners had been waterboarded, including Zubaydah. None of them were charged with crimes.

Four years after Kiriakou's interview, he was charged with giving the names of CIA agents to two journalists, a crime under the Intelligence Identities Protection Act punishable by up to 10 years imprisonment, not for describing waterboarding, which if he had leaked would have been covered by the Whistleblower Protection Act.