Kiriakou Not Allowed to Argue Lack of Intent to Harm U.S.

Updated below

A court ruled this month that former CIA officer John Kiriakou, who is charged with unauthorized disclosures of classified information to the media, will not be permitted to argue at trial that he intended no harm to the United States, or that his entire career testifies to a deep commitment to national security.

Instead, the central question at trial will be whether Kiriakou “had reason to believe” that the information he allegedly released would cause injury to the United States.

The court ruling, which favors the prosecution’s conception of the case, was issued during a sealed hearing on October 1.  The hearing transcript has not been released, but the ruling was disclosed in two footnotes in an October 3 defense pleading that was unsealed last week. [See Update below]

The defense said it would have demonstrated at trial “that Mr. Kiriakou had no intent to harm the United States, and that he had no motive to do so had the Court not ruled such arguments inadmissible” (footnote 7).

Similarly, the defense indicated that “this Court’s October 1, 2012 ruling precludes arguments regarding Mr. Kiriakou’s intent to harm the United States or a defense resting on Mr. Kiriakou’s lack of bad faith” (footnote 4).

The defense said it would continue to “note where information would be relevant to such arguments in order to preserve its ability to appeal the issue should that become necessary.”

Meanwhile, two reporters who were subpoenaed by the Kiriakou defense filed motions to quash the subpoenas.

Attorneys for Matthew Cole, designated “Journalist A” in the Kiriakou indictment, said that the information sought by the Kiriakou defense was protected by a reporter’s First Amendment privilege and that there was no basis to overrule the privilege.

Not only that, but Cole attorneys George Doumar and Mark Zaid added that Mr. Cole would assert a Fifth Amendment right to refuse to testify to avoid self-incrimination.  They said that the government’s past move to prosecute unauthorized receipt and transmission of classified information in the AIPAC case (US v. Rosen) raises the possibility that Cole’s testimony “could subject him to a subsequent federal criminal proceeding. Therefore, he will invoke his Fifth Amendment right to remain silent.”

Washington Post researcher Julie Tate also moved to quash a subpoena for her testimony.  She was identified as the “Researcher 1” sought by the defense in an article by Josh Gerstein of Politico last week.

Ms. Tate possesses exceptional news gathering skills.  But she has nothing to do with the charges against Mr. Kiriakou, her attorneys said in their October 11 motion to quash.

“The testimony defendant seeks from Ms. Tate has no conceivable relevance to this case. Defendant has been charged with unlawfully disclosing classified information to Journalist A and Journalist B–not to Ms. Tate. Ms. Tate is not mentioned in the Indictment, and there is no evidence in the record that Ms. Tate has ever met or communicated with Mr. Kiriakou….  The law places the burden on the defendant to establish that he has a need for Ms. Tate’s testimony that is so compelling that it outweighs the First Amendment interests at stake. That burden has not been met.”

Scott Shane of the New York Times, who is “Journalist B” in the Kiriakou indictment, is also believed to have been subpoenaed.  But that subpoena is said to have been withdrawn for reasons that are unclear.  In any case, Mr. Shane and the New York Times did not file a motion to quash.

The pending motions to quash the subpoenas will be argued before Judge Leonie M. Brinkema at an October 18 hearing.

Update: On October 16, the Court issued a Memorandum Opinion explaining its ruling on the intent requirements of the Espionage Act in this case. The October 18 hearing on the pending motions to quash was postponed by the Court.

NATO: Nuclear Transparency Begins At Home

What’s wrong with this picture? Despite NATO’s call for greater nuclear transparency, old-fashioned nuclear secrecy prevents media access to the Nuclear Planning Group.

By Hans M. Kristensen

Less than six months after NATO’s Deterrence and Defense Posture Review (DDPR) adopted at the Chicago Summit called for greater transparency of non-strategic nuclear force postures in Europe, the agenda for the NATO defense minister get-together in Brussels this week listed the Nuclear Planning Group (NPG) meeting with the usual constraint: “no media opportunity.”

Why should the news media not have access to the NPG meeting just like they have access to other meetings discussing NATO security issues? After all, the high stakes that justified nuclear secrecy in the past disappeared with the demise of the Soviet Union, no urgent military mission is (publicly) attributed to the remaining nearly 200 U.S. nuclear bombs left in Europe, and NATO now officially advocates greater nuclear transparency.

Whatever the reason, the “no media opportunity” is symbolic of the old-fashioned secrecy that continues to constrain NATO nuclear policy discussions. The nuclear planners are insulated deep within the alliance with little or no public scrutiny. Even for NATO officials, tradition, past political statements, and turf can make it difficult to ascertain and question the rationales behind the nuclear posture.

The DDPR determined “that the Alliance’s nuclear force posture currently meets the criteria for an effective deterrence and defense posture.” The reasons for that conclusion remain elusive and the news media should have access to the NPG meeting to ask the questions. Not least because the conclusion is now resulting in significant modernization of NATO’s nuclear forces at considerable cost to the Alliance and some of its member countries. Another potential cost is how it will affect relations with Russia.

If NATO wants to increase nuclear transparency, it should and could break with old-fashioned nuclear secrecy and disclose the broad outlines of its non-strategic nuclear deployment in Europe. It is already widely known and NATO’s nuclear members are already transparent about the broad outlines of their strategic nuclear forces – those that unlike the non-strategic weapons in Europe are actually tasked to provide the ultimate security guarantee to the Allies.

Rather than limiting nuclear transparency efforts to prolonged negotiations for what’s likely to be small incremental steps that essentially surrender the agenda to hardliners in Moscow, unilateral disclosure of NATO’s non-strategic posture would jump-start the process, put pressure on Russia to follow suit, and be consistent with the already considerable transparency of NATO’s strategic forces.

See also: Non-Strategic Nuclear Weapons, FAS, May 2012.

This publication was made possible by a grant from the Carnegie Corporation of New York and Ploughshares Fund. The statements made and views expressed are solely the responsibility of the author.

Kiriakou Defense Seeks to Depose Reporters

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.”

Obama Issues Directive on Intelligence Community Whistleblowers

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.

Violent Behavior Cannot Be Reliably Predicted, Panel Says

The outbreak of violence by individuals who seek to harm other persons or institutions cannot be reliably predicted today, the Defense Science Board said in a new report to the Secretary of Defense.  Instead, efforts to counter violence should focus on prevention and mitigation of the threat.

The new DSB study on “Predicting Violent Behavior” was initiated in response to the 2009 Fort Hood shooting in which thirteen people were killed and dozens wounded allegedly by Army Major Nidal Malik Hasan, who had not previously been identified as a threat.

“The state of the art in physiological and neurological sciences today does not provide useful capability for predicting targeted violence,” the DSB report said.

“While there are promising indicators that might predict aberrant behavior, severe personality disorders, addiction, and other anti-social behaviors, the current state of the science is such that the false positives and false negatives are very high. In addition, developing a practical means to observe any useful indicators may present a significant challenge.”

In the wake of the Fort Hood shootings, the Defense Department attempted to develop lists of problematic behaviors that might signal a propensity to violence.  One such list was the behaviors included in the adjudicative guidelines for granting (or denying) security clearances.

But the use of that list was not justified, the DSB said.  “The Task Force found little to no relationship between the adjudicative guidelines and targeted violence.”

Moreover, “the Task Force also found that indicator lists are most effective in the hands of trained professionals and are not an effective substitute for a more nuanced, comprehensive set of factors developed by threat-management practitioners. If not handled properly and by trained personnel, lists can lead to high false-positives with accompanying stigma, lack of trust, and reluctance to report. Lists also tend to be static and unless continually revisited the list of indicators becomes less likely to identify adaptive perpetrators who will purposefully avoid elements of listed behavior to avoid interdiction.”

Overall, the DSB Panel advised, “prevention as opposed to prediction should be the Department’s goal.  Good options exist in the near-term for mitigating violence by intervening in the progression from violent ideation to violent behavior.”

Presidential Elections and National Security, More from CRS

Presidential elections and the possible transition to a new Administration are potentially a period of heightened national security vulnerability, a new report from the Congressional Research Service says.

The report distinguishes five phases of the presidential election period, and proposes concerns relevant to each.  Thre report provides tabulated listings of US military operations during presidential transition period, and terrorist incident that have occurred during such transitions.  See 2012-2013 Presidential Election Period: National Security Considerations and Options, October 5, 2012.

Some other noteworthy CRS products that Congress has not made publicly available include the following.

Sudan and South Sudan: Current Issues for Congress and U.S. Policy, October 5, 2012

U.S. Textile Manufacturing and the Trans-Pacific Partnership Negotiations, October 5, 2012

Presidential Appointments, the Senate’s Confirmation Process, and Changes Made in the 112th Congress, October 9, 2012

Unemployment: Issues in the 112th Congress, October 5, 2012

Antipoverty Effects of Unemployment Insurance, October 4, 2012

DOD: Strategic Stability Not Threatened Even by Greater Russian Nuclear Forces

Russia’s nuclear forces, even if carrying out a surprise disarming first strike against the United States with significantly more warheads than allowed under the New START Treaty limit, would have “little to no effects” on the US the ability to retaliate with a significant second strike, according to the Department of Defense.

By Hans M. Kristensen

A Department of Defense (DOD) report on Russian nuclear forces, conducted in coordination with the Director of National Intelligence and sent to Congress in May 2012, concludes that even the most worst-case scenario of a Russian surprise disarming first strike against the United States would have “little to no effect” on the U.S. ability to retaliate with a devastating strike against Russia.

I know, even thinking about scenarios such as this sounds like an echo from the Cold War, but the Obama administration has actually come under attack from some for considering further reductions of U.S. nuclear forces when Russia and others are modernizing their forces. The point would be, presumably, that reducing while others are modernizing would somehow give them an advantage over the United States.

But the DOD report concludes that Russia “would not be able to achieve a militarily significant advantage by any plausible expansion of its strategic nuclear forces, even in a cheating or breakout scenario under the New START Treaty” (emphasis added).

The conclusions are important because the report come after Vladimir Putin earlier this year announced plans to produce “over 400” new nuclear missiles during the next decade. Putin’s plan follows the Obama administration’s plan to spend more than $200 billion over the next decade to modernize U.S. strategic forces and weapons factories.

The conclusions may also hint at some of the findings of the Obama administration’s ongoing (but delayed and secret) review of U.S. nuclear targeting policy. Continue reading

FAS Roundup: October 9, 2012

New START data, Supreme Court ruling on FISA, India’s SSBN and much more.

From the Blogs

  • Fusion Centers Flayed in Senate Report: Steven Aftergood writes that the state and local fusion centers supported by the Department of Homeland Security have produced little intelligence of value and have generated new concerns involving waste and abuse, according to an investigative report from the Senate Homeland Security Committee Permanent Subcommittee on Investigations.
  • New START Data Released- Nuclear Flatlining: This week, the U.S. State Department released the fourth batch of START data which shows that the United States and Russia since January 5, 2011, have reduced their accountable deployed strategic delivery vehicles by 76 and 30, respectively. Parts of those numbers are fluctuations due to delivery platforms entering or leaving maintenance. Also, the United States and Russia have reduced their number of accountable deployed strategic warheads by 78 and 38, respectively. Much of these numbers are fluctuations due to delivery platform maintenance and it is not clear that either country has made any explicit warhead reductions yet under the treaty. In any case, 38-78 warheads don’t amount to much out of the approximately 5,000 nuclear warheads the two countries retain in each of their respective nuclear stockpiles.
  • New Declassification Portal at the National Archives: The National Archives has set up a new online portal that provides an overview of declassification activity in and around the Archives, with input from the National Declassification Center, the Public Interest Declassification Board, the Presidential Libraries, and the Interagency Security Classification Appeals Panel (ISCAP). The new section on ISCAP declassification decisions is of particular interest, since it provides links to the documents that have been newly declassified at the direction of the ISCAP, which receives appeals from the public for release of documents that agencies have declined to declassify.  Documents declassified through the ISCAP process in the past year include excerpts of several Presidential Daily Briefs from the 1960s, intelligence reports on various topics, and several documents on strategic nuclear forces.
  • Pentagon Sets New Framework for Security Policy: This week, the Department of Defense established a new Defense Security Enterprise that is intended to unify and standardize the Department’s multiple, inconsistent security policies.The new security framework “shall provide an integrated, risk-managed structure to guide DSE policy implementation and investment decisions, and to provide a sound basis for oversight and evolution.” The Defense Security Enterprise, launched October 1 by DoD Directive 5200.43, is a response to the often incoherent and internally contradictory state of DoD security policy.
  • Figure the Odds: Humans like to know what causes what – and particularly what causes bad things to happen. So when something bad – like cancer – happens we want to find a cause; and we also want to know what causes cancer so that we can avoid getting it. How does this concept relate to radiation and cancer?
  • Supreme Court Urged to Grant Standing in Surveillance Challenge: In its new term that began on October 1, the U.S. Supreme Court will hear arguments over whether to affirm the right of journalists and human rights organizations to challenge the constitutionality of the Foreign Intelligence Surveillance Act (FISA) Amendments Act, or FAA. The FISA Amendments Act authorizes the collection of a broad swath of public communications without a warrant (though not the intentional targeting of the communications of any particular U.S. person).  As such, critics say, it jeopardizes freedom of communication with individuals abroad.
  • 2010 Military Intelligence Budget Request Declassified: This week, the Department of Defense released a redacted version of the budget justification for the FY 2010 Military Intelligence Program (MIP). The MIP budget justification for FY 2010, which was submitted to Congress in 2009, presents dozens of individual military intelligence programs. While budget figures have been censored, along with various other classified matters, the summary descriptions of most of the individual MIP programs were released more or less intact.
  • India’s SSBN Shows Itself: A new satellite image might show part of India’s first nuclear-powered ballistic missile submarine, the Arihant. The image, taken by GeoEye’s satellite and made available on Google Earth, shows what appears to be the conning tower (or sail) of a submarine in a gap of covers intended to conceal it deep inside the Visakhapatnam (Vizag) Naval Base on the Indian east coast.


The Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty Organization is hosting an Advanced Science Course, “Around the Globe and Around the Clock: The Science and Technology of the CTBT” from November 12-23 at the Vienna International Centre. The course is also available online.

The course will take an in-depth look at the science behind the verification technologies of the CTBT, as well as the conduct of on-site inspections to verify compliance with the nuclear test ban.

Confirmed guest speakers include Princess Sumaya bint El Hassan of Jordan, Ambassador Linton Brooks and Professor Paul Richards from the Lamont-Doherty Earth Observatory at Columbia University.

For more information on the course, visit the CTBTO website here.


FAS in the News

Parties Tangle Over Discovery in Kiriakou Leak Case

The trial of former CIA officer John Kiriakou, who is accused of making unauthorized disclosures of classified information, has yet to begin.  But prosecutors and defense attorneys are now locked in a dispute over what classified information must be provided to the defense and can be cleared for disclosure at trial.

The resolution of the current pre-trial arguments may have a decisive effect not only on the outcome of Mr. Kiriakou’s proceeding but on the future use of the Espionage Act to penalize leaks of classified information.  That’s because the pending disagreements involving the nature of the charge will determine the standard by which the defendant will be judged.

“The government has no obligation to prove, and does not intend to prove, that the defendant [Kiriakou] intended to harm the United States,” prosecutors said in a September 26 motion that was unsealed last week.

“The government must prove only that the defendant had a ‘reason to believe’ that the information ‘could be used to the injury of the United States or to the advantage of any foreign nation’…. The defendant’s intent to injure or serve the United States is not at issue.”

Prosecutors rejected the contrary view of the defense that the government must demonstrate an intent by the defendant to harm the United States.  In a separate pleading last week, they said that view reflects a “misplaced” reliance on a 2006 holding in the AIPAC case (US v. Rosen) in which the court imposed a more stringent “intent” requirement on the prosecution, particularly since the defendants there did not hold security clearances and were dealing with information transmitted orally rather than with classified documents.

Rosen is distinguishable from this case… because Kiriakou transmitted the information electronically, not orally, and Kiriakou had a recognized obligation not to divulge classified, national defense information to those not entitled to receive it,” prosecutors said October 2.  (The latest defense argument on the subject is still under seal.)

But whether an email message is more like “documentary” information or like transcribed “oral” information seems to be an open question for the Kiriakou court to decide, along with other fateful questions about the use of the Espionage Act in leak cases.