Prosecutors Dispute Claims of Selective Anti-Leak Prosecution

Updated below

Last month, former CIA officer John Kiriakou, who is accused of unlawfully disclosing classified information to two reporters, said in pre-trial motions that he had been wrongly and unfairly singled out for prosecution, particularly since he had criticized the U.S. practice of waterboarding.  (“Kiriakou Calls Leak Prosecution Selective, Vindictive,” Secrecy News, June 22).

This week, prosecutors unsurprisingly rejected such claims while affirming that they intend to vigorously pursue their case against Mr. Kiriakou.

“The genesis of this prosecution has nothing to do with waterboarding, the national conversation about its wrongness or rightness, the defendant’s opinions, or other public statements he may or may not have made,” the July 2 government response states.

The new government filing presents a series of legal arguments against the defense motions for dismissal, explaining why prosecutors believe the Intelligence Identities Protection Act and the Espionage Act statutes under which Mr. Kiriakou is charged are sufficiently clear and specific to be constitutional.  Beyond that, the new government response makes a couple of noteworthy points.

“The government does not intend to seek the testimony of either journalist to whom Kiriakou made the charged disclosures,” prosecutors wrote.  By refraining from subpoenaing the two unnamed reporters — believed to be Matthew Cole, formerly of ABC News, and Scott Shane of the New York Times — prosecutors will steer clear of the controversies and difficulties facing the prosecution of former CIA officer Jeffrey Sterling, which is currently suspended while the government appeals the right to subpoena New York Times reporter James Risen, to whom Sterling allegedly provided classified information.

Prosecutors also suggest at one point that their obligation to prove at trial that Mr. Kiriakou had specific “reason to believe” his alleged disclosures would damage national security would be satisfied by “the non-disclosure agreements signed by Kiriakou,” since those agreements include boilerplate language affirming that unauthorized disclosures could cause injury to the United States.  This approach seems calculated to enable prosecutors to overcome the otherwise daunting hurdle of demonstrating the defendant’s intent to harm the country.  It is unclear if it would be found legally satisfactory by the court or persuasive to a jury.

In a critical account of the Kiriakou case to date, Dan Froomkin wrote that “The bitterest irony of the case is that if Kiriakou had actually tortured, rather than talked about it, he almost certainly wouldn’t be in trouble.” See “Squelching Secrets: Why Are Obama’s Prosecutors Pursuing John Kiriakou?”, Huffington Post, July 4.

Update (7/19/12):  The defense reply to the government is here.