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.”