Secrecy News – Kiriakou Defense seeks to depose reporters

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."

        http://www.fas.org/sgp/jud/kiriakou/092812-depose89.pdf

"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.

        http://www.fas.org/sgp/jud/kiriakou/091212-cipa90.pdf

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.

        http://www.fas.org/sgp/jud/kiriakou/092612-resp83.pdf

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."

        http://www.fas.org/sgp/jud/kiriakou/092812-reply91.pdf

OBAMA ISSUES DIRECTIVE ON INTEL COMMUNITY WHISTLEBLOWERS

President Obama yesterday issued Presidential Policy Directive 19 on
"Protecting Whistleblowers with Access to Classified Information."

        http://www.fas.org/irp/offdocs/ppd/ppd-19.pdf

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.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
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