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.