SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 30
April 6, 2012

Secrecy News Blog: http://www.fas.org/blog/secrecy/

PROSECUTION OF ACCUSED CIA LEAKER WILL FACE LEGAL HURDLES

Former CIA officer John C. Kiriakou was indicted yesterday on charges of leaking classified information to the press in violation of the Espionage Act and the Intelligence Identities Protection Act. He had been charged on January 23 but the indictment was not filed and unsealed until yesterday.

Kiriakou is accused of violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert CIA officer, and of violating the Espionage Act for allegedly disclosing national defense information to persons not authorized to receive it. He is further accused of making false statements to the CIA Publications Review Board in connection with a manuscript he intended to publish.

While the indictment is a daunting blow to Mr. Kiriakou, who must mobilize an expensive and burdensome defense, it is challenging in a different way for the prosecution, which will face a variety of substantive and procedural hurdles.

For one thing, it remains to be shown that the "covert officer" whose identity was allegedly disclosed to a reporter by Kiriakou actually falls within the ambit of the Intelligence Identities Protection Act. To be subject to the Act's penalties, the covert officer in question -- whose identity has not been publicly revealed -- must not only be under cover but must also have served abroad within the past 5 years.

But the prosecution's biggest challenge, which may well be insurmountable, will be to demonstrate to a jury that Mr. Kiriakou actually intended to harm the United States or to assist a foreign nation by committing an unauthorized disclosure.

The new indictment asserts generally that Kiriakou "had reason to believe [the information] could be used to the injury of the United States and to the advantage of any foreign nation," which is an element of the crime set forth in the Espionage Act (18 USC 793).

Yet the meaning of this provision was construed by Judge T.S. Ellis III in a 2006 opinion in a way that would seem to make the prosecution of Mr. Kiriakou particularly difficult. In light of that opinion, the government will have to prove not merely that Kiriakou "had reason to believe" some harm to the United States could possibly result from his action, but that he deliberately intended to cause such harm.

This follows from the (alleged) fact that Kiriakou disclosed classified "information" rather than classified "documents," as well as from the seemingly duplicative Espionage Act use of the terms willfulness and reason to believe, which Judge Ellis interpreted thus:

"If a person transmitted classified *documents* relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for 'willfully' committing the prohibited acts even if he viewed the disclosure as an act of patriotism," Judge Ellis wrote. "By contrast, the 'reason to believe' scienter requirement that accompanies disclosures of *information* requires the government to demonstrate the likelihood of defendant's bad faith purpose to either harm the United States or to aid a foreign government." (see pp. 33-34).

But there is no known indication that Mr. Kiriakou, a former CIA counterterrorism operations officer, had a bad faith purpose to harm the United States, and every indication of the opposite.

"For more than 14 years, John worked in the field and at home, under conditions of great peril and stress and at great personal sacrifice, dedicating himself to protecting America and Americans from harm at home and abroad," states a new website devoted to his cause.

DALE CORSON AND SCIENTIFIC FREEDOM

Dale R. Corson, a nuclear physicist who died last week, is best remembered as the Cornell University President who peacefully led his campus through the turmoil and upheaval of the Vietnam era. But he also played an influential role in deliberations over the role of secrecy in scientific research.

Dr. Corson chaired a 1982 committee of the National Academy of Sciences that produced a landmark study entitled "Scientific Communication and National Security," which became known as the Corson Report.

In sober and measured tones, the Corson Report pushed back against calls for increased secrecy in government-funded science:

"Current proponents of stricter controls advocate a strategy of security through secrecy. In the view of the Panel security by accomplishment may have more to offer as a general national strategy. The long-term security of the United States depends in large part on its economic, technical, scientific, and intellectual vitality, which in turn depends on the vigorous research and development effort that openness helps to nurture... Controls on scientific communication could adversely affect U.S. research institutions and could be inconsistent with both the utilitarian and philosophical values of an open society."

President Reagan cited Dr. Corson in National Security Decision Directive 189, "National Policy on the Transfer of Scientific, Technical and Engineering Information," which seemed to affirm that fundamental research should remain unrestricted to the maximum extent possible. In fact, however, that directive imperfectly reflected the input of the Corson Report, noted Harold C. Relyea in his book "Silencing Science: National Security Controls and Scientific Communication."

Still, many of the issues identified by Dr. Corson and his colleagues, and the concerns they expressed, remain current today and have not reached an unequivocal resolution, as evidenced most recently by the latest U.S. government policy on dual use biological research.

THE U.S. INFANT MORTALITY RATE, AND MORE FROM CRS

New or newly updated reports from the Congressional Research Service that have not been made readily available to the public include the following.

The U.S. Infant Mortality Rate: International Comparisons, Underlying Factors, and Federal Programs, April 4, 2012:

The Peace Corps: Current Issues, April 4, 2012:

Women in Combat: Issues for Congress, April 5, 2012:

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, April 4, 2012:

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, April 5, 2012:

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, April 4, 2012:

National Science Foundation: Major Research Equipment and Facility Construction, April 4, 2012:

The Strategic Petroleum Reserve: Authorization, Operation, and Drawdown Policy, April 2, 2012:

The Emergency Planning and Community Right-to-Know Act (EPCRA): A Summary, April 5, 2012:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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