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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.

A day-long conference on national security secrecy will be held tomorrow, October 16, at Fordham Law School in New York City.

The conference brings together a promising mix of former government officials, journalists, litigators, academics and others, including myself.

For more information on the conference, which is open to the public, see here.

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.

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 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

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.

Military chaplains in the U.S. Army must have at least a Secret clearance. “This allow them access to the unit operations center and ensures that the chaplain is involved in the unit’s operational planning process.”

A newly updated Army doctrinal publication on Religious Support, which describes the functions of chaplains, explains that “Religion plays an increasingly critical role… across the range of military operations.”

“Chaplains and chaplain assistants continue to sustain programs that nurture ethical decision making and facilitate religious formation and spiritual development as an inseparable part of unit readiness.”

“Throughout our history, chaplains and chaplain assistants have served alongside combat Soldiers, enduring the same hardships, and bearing the same burdens.  They are members of the profession of arms.”

“Chaplains have served in the U.S. Army since the first days of the American Revolution and many have died in combat. These chaplains represented more than 120 separate denominations and faith groups from across America.”

“Six chaplains have been awarded the Medal of Honor for heroism above and beyond the call of duty,” the new Army Field Manual 1-05 noted.

However, “chaplains are noncombatants and do not bear arms.  Chaplains do not have command authority.”

Essentially, chaplains are expected to fulfill “three basic core competencies: nurture the living, care for the wounded, and honor the dead.”

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.

The documents were posted in response to Section 5.3(b)(4) of President Obama’s Executive Order 13526, which required that the ISCAP “appropriately inform senior agency officials and the public of final Panel decisions on appeals under sections 1.8 and 3.5 of this order.”

The release of the latest collection of documents through ISCAP is commendable, and its publication online is more than welcome.

And yet it is not entirely satisfactory, nor does it seem to comply with the spirit or the letter of the executive order.  That’s because while the newly posted documents are the products of ISCAP decisions, they are not the decisions themselves.  And those decisions have not been released.

By definition, every document released through ISCAP represents an error or a misjudgment by classifiers in the originating agency, who previously refused to release it to a requester.  Obviously, if the originating agency had released it, there would have been no appeal to ISCAP, and thus no occasion for an ISCAP decision to declassify.

But what was the error in each particular case?  Why exactly did ISCAP overrule the classifiers in the originating agency and order that the document be released?  And most important:  what are the lessons of each ISCAP decision for future agency classification and declassification activity?

These questions have no immediate answer.

The Executive Order stated clearly (section 3.1i) that “agencies shall consider the final decisions of the [ISCAP] Panel” in conducting their own declassification programs.  But without any articulation of the bases for the ISCAP decisions, there is nothing for agencies to consider.  All that can be said with confidence is that the individual document that has been released can no longer be withheld.  And we knew that already.

It seems that ISCAP does not prepare formal opinions to justify its actions.  It holds discussions among its interagency membership, and then it votes.

But if the ISCAP process is to be more than a retail declassification operation, producing a meager couple of dozen declassified documents per year, then it needs to do something more.  One way to proceed would be for ISCAP to issue a concise Record of Decision for each case.  It could describe the original agency position against disclosure, the ISCAP’s assessment of that position, and the logic of its decision to overrule the agency and declassify the document, in whole or in part.

In this way, the Panel’s impressive efforts to correct agency classification errors and misjudgements would have a better chance of propagating throughout the system.

“The ISCAP decisions site is a work in progress, and will be further refined to better serve the needs of our users,” according to an NDC blog entry on the site.

The Department of Defense this week released a redacted version of the budget justification for the FY 2010 Military Intelligence Program (MIP).

“The MIP sustains all programs, projects or activities that support the Secretary of Defense intelligence, counterintelligence, and related intelligence responsibilities and provides capabilities to meet the warfighters’ operational and tactical requirements whenever and wherever needed,” the document states.

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.

The document (large pdf) was provided to the Federation of American Scientists in response to a Freedom of Information Act request.

“In the last several years, we have embarked on a fundamental change to the concept of defense intelligence – one that balances the unique role of support to the warfighter with the recognition that today’s security environment crosses traditional organizational domains,” the budget document says.

“The deep integration of defense intelligence into the larger Intelligence Community, the evolution of our collaboration with homeland defense counterparts, and the fostering of committed international partnerships are all outcomes of this fundamental change,” wrote James R. Clapper, then-Under Secretary of Defense (Intelligence) in his introduction to the budget justification.

In FY 2010, Congress appropriated $27 billion for the Military Intelligence Program.  The FY 2013 request for the MIP was $19.2 billion.  The budget appropriation for FY 2012 is to be disclosed by the end of this month.

The Department of Defense this week 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.

An Inspector General report earlier this year said that there were at least 43 distinct DoD policies on security that could not all be implemented together.

“The sheer volume of security policies that are not coordinated or integrated makes it difficult for those at the field level to ensure consistent and comprehensive policy implementation,” the DoD IG wrote.  (“DoD Security Policy is Incoherent and Unmanageable, IG Says,” Secrecy News, September 4, 2012.)

But under the new Defense Security Enterprise, “Standardized security processes shall be implemented, to the maximum extent possible and with appropriate provisions for unique missions and security environments,” the DoD directive said.

The new structure is supposed to “ensure that security policies and programs are designed and managed to improve standards of performance, economy, and efficiency.”

But the directive does not explain how to proceed if “performance, economy, and efficiency” prove to be incompatible objectives.

Nor does it provide a working definition for the crucial concept of “risk management.”  This term, often contrasted with “risk avoidance,” implies an increased tolerance for risk (i.e. risk of failure).  But the practical meaning (or the limit) of this tolerance is nowhere made explicit.

The Defense Security Enterprise will be managed by “a core of highly qualified security professionals,” the DoD directive said.

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.  (NYT, WP)

“It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties,” said Senator Tom Coburn, the ranking member of the Subcommittee who initiated the investigation.

While it may not be the last word on the subject, the new Subcommittee report is a rare example of congressional oversight in the classical mode.  It was performed by professional investigators over a two-year period.  It encountered and overcame agency resistance and non-cooperation.  And it uncovered — and published — significant new information that demands an executive branch response.  That’s the way the system is supposed to work.