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.
Satellite imagery of RAF Lakenheath reveals new construction of a security perimeter around ten protective aircraft shelters in the designated nuclear area, the latest measure in a series of upgrades as the base prepares for the ability to store U.S. nuclear weapons.
It will take consistent leadership and action to navigate the complex dangers in the region and to avoid what many analysts considered to be an increasingly possible outcome, a nuclear conflict in East Asia.
Getting into a shutdown is the easy part, getting out is much harder. Both sides will be looking to pin responsibility on each other, and the court of public opinion will have a major role to play as to who has the most leverage for getting us out.
How the United States responds to China’s nuclear buildup will shape the global nuclear balance for the rest of the century.