from the FAS Project on Government Secrecy
Volume 2012, Issue No. 105
October 11, 2012

Secrecy News Blog:


In a new challenge to press independence, attorneys for John Kiriakou, the former CIA officer who is charged with leaking classified information, have asked a court for permission to depose three journalists in support of his defense.

Two of the journalists are cited in the April 2012 Kiriakou indictment as Journalist A and Journalist B. Based on the description provided, these are understood to be Matthew Cole, formerly of ABC News, and Scott Shane of the New York Times. The Kiriakou attorneys also asked for court authorization to depose a third journalist designated as Researcher 1, who "has worked in close association with Journalist A."

"Based upon communications with each of these individuals and their counsel, all are unwilling to submit to on-the-record interviews or otherwise testify voluntarily," the newly unsealed September 28 defense motion stated. "It is likely that all may assert a 'journalist's privilege' if compelled to testify."

"The applicability of this privilege in this case... is likely to be a point of significant debate," the motion acknowledged.

The Kiriakou defense said the reporters' testimony was needed because it could be exculpatory for their client, and that the reporters could affirm that Kiriakou lacked any intent to harm the United States or to benefit a foreign power.

"The defense anticipates the likely elicited testimony to speak directly to whether Mr. Kiriakou had the requisite state of mind or was merely induced into disclosing the information by these witnesses."

The government has objected to the defense proposal, declaring that "It is also impermissible to disclose classified information to unauthorized persons, including the media."

But this seems to miss the point. The Kiriakou defense does not seek to provide classified information to the reporters. Rather, "the defense intends to elicit answers from these witnesses that are expected to include classified information," though attorneys said they could not specify in advance what classified information the reporters might possess or reveal.

The defense has also filed an expansive list of categories of classified information that it intends to disclose at trial, which was unsealed and released in redacted form this week. It includes Mr. Kiriakou's entire personnel file, records describing his role in the capture of Abu Zubaydah, correspondence with the CIA Publications Review Board and quite a few other topics.

Prosecutors objected that the notice was "vague and overbroad" and smacked of "graymail."

"The filing purports to provide notice of 75 separate categories of information that the defense asserts it intends to disclose at a public trial, including more than 3000 pages of cited examples, all of which refer to entire sets of or excerpts of documents, without designating what part or portion of any given page it wishes to use," the government said.

In support of the proposed disclosures, the Kiriakou defense firmly reiterated its view of the relevant legal standard at issue in the case.

"To convict Mr. Kiriakou under [the espionage statute], the government must 'demonstrate the likelihood of [his] bad faith purpose to either harm the United States or to aid a foreign government,' and Mr. Kiriakou is entitled to discover, and present, evidence that shows the opposite," the defense said.

"Evidence that Mr. Kiriakou honorably served his country for fifteen years, placed his own life at risk to protect the national security, and received multiple awards and decorations for his service goes to the heart of the very specific mens rea [intent] element of the Espionage Act, and directly rebuts any evidence that Mr. Kiriakou acted with a 'bad faith purpose to... harm the United States."


President Obama yesterday issued Presidential Policy Directive 19 on "Protecting Whistleblowers with Access to Classified Information."

The directive generally prohibits official reprisals against an intelligence community employee who makes a "protected disclosure" concerning unlawful activity or "waste, fraud, and abuse." It does not authorize disclosure of classified information outside of official channels to the press or the public.

The directive was occasioned by the ongoing failure of Congress to extend the protections of the Whistleblower Protection Act to intelligence community employees.

The new presidential directive, reported today by Joe Davidson in the Washington Post, was welcomed by whistleblower advocacy organizations.

"While this directive is not a panacea, it begins to fill a large void in whistleblower protections and lays the framework for more government accountability where it is sorely needed," said Angela Canterbury of the Project on Government Oversight. "Because the President directs agencies to create procedures for internal review of claims, we will be very interested in the rulemaking and strength of the due process rights in practice."

"For the first time, intelligence community employees have free speech rights to challenge fraud, waste and abuse within agency channels," said Tom Devine of the Government Accountability Project, while cautioning that "Until agencies adopt implementing regulations, no one whose new rights are violated will have any due process to enforce them."

"This policy directive represents a significant breakthrough, but it is no substitute for Congress to legislate permanent rights for national security whistleblowers, with third party enforcement the same as for other employees," Mr. Devine said.


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

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