FAS

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

10.15.12 | 3 min read | Text by Steven Aftergood

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.

publications
See all publications
Nuclear Weapons
Blog
New Voices on Nuclear Weapons Fellowship: Creative Perspectives on Rethinking Nuclear Deterrence 

To empower new voices to start their career in nuclear weapons studies, the Federation of American Scientists launched the New Voices on Nuclear Weapons Fellowship. Here’s what our inaugural cohort accomplished.

11.28.23 | 3 min read
read more
Science Policy
Article
Expected Utility Forecasting for Science Funding

Common frameworks for evaluating proposals leave this utility function implicit, often evaluating aspects of risk, uncertainty, and potential value independently and qualitatively.

11.20.23 | 11 min read
read more
Nuclear Weapons
Report
Nuclear Notebook: Nuclear Weapons Sharing, 2023

The FAS Nuclear Notebook is one of the most widely sourced reference materials worldwide for reliable information about the status of nuclear weapons and has been published in the Bulletin of the Atomic Scientists since 1987. The Nuclear Notebook is researched and written by the staff of the Federation of American Scientists’ Nuclear Information Project: Director Hans […]

11.17.23 | 1 min read
read more
Social Innovation
Blog
Community School Approach Reaches High of 60%, Reports Latest Pulse Panel

According to the National Center for Education Statistics’ August 2023 pulse panel, 60% of public schools were utilizing a “community school” or “wraparound services model” at the start of this school year—up from 45% last year.

11.17.23 | 4 min read
read more