Kiriakou pleads guilty in leak case

BERND PULCH, SECRECY NEWS 4 Minutes 
KIRIAKOU PLEADS GUILTY IN LEAK CASE

This morning former CIA officer John Kiriakou pleaded guilty to one count
of disclosure of information identifying a covert agent, a violation of the
Intelligence Identities Protection Act.

"When KIRIAKOU disclosed the identity of Officer A to Journalist A,
KIRIAKOU acted willfully in that defendant knew the disclosure was
illegal," according to a Statement of Facts approved and signed by Mr.
Kiriakou today.

        http://www.fas.org/sgp/jud/kiriakou/facts.pdf

Under the terms of a plea agreement, the parties agreed that a prison term
of 30 months would be "the appropriate sentence in this case."  Other
charges against him, including several counts under the Espionage Act,
would be dismissed.

        http://www.fas.org/sgp/jud/kiriakou/plea.pdf

By foregoing a trial, Mr. Kiriakou loses an opportunity to try and
persuade a jury that his motives were benign, and that the harm to national
security resulting from his disclosure was negligible and insignificant. 
But he gains an early resolution of the case, which could otherwise drag on
for months and years, as well as a sentence that would likely be much
shorter than if he were to be found guilty at trial.

"NEGATIVE RECIPROCITY" EMERGES IN THE SECURITY CLEARANCE SYSTEM

In the world of security clearances for access to classified information,
the term "reciprocity" is used to indicate that one executive branch agency
should ordinarily recognize and accept a security clearance that has been
granted by another executive branch agency.

This is not just a nice, cost-efficient thing to do, it is actually a
requirement of law.  Under the 2004 intelligence reform law, "all security
clearance background investigations and determinations... shall be accepted
by all agencies."

This requirement for mutual recognition and acceptance applies equally to
the higher order clearances of the intelligence community, where
reciprocity is intended to promote employee "mobility" throughout the
intelligence system, according to the 2009 Intelligence Community Directive
709.

        http://www.fas.org/irp/dni/icd/icd-709.pdf

So possessing a clearance from one agency should simplify the process of
access approval at another agency.  But the opposite is not supposed to be
true.  If an agency refuses for some reason to recognize the clearance
granted by another agency, that refusal is not supposed to incur loss of
clearance in the original agency.

Officially, such "negative reciprocity" is not an authorized, legitimate
security clearance practice.  And yet there are signs that it is being
adopted within the Department of Defense Office of Hearings and Appeals
(DOHA), which rules on contested security clearance cases.

A new paper by attorney Sheldon I. Cohen describes a series of DOHA
rulings in which a perverse form of negative reciprocity has been used to
justify the denial or revocation of a security clearance, to the obvious
detriment of due process.

        http://www.sheldoncohen.com/

"While the burden of proof has always been placed on the employee by the
DOHA Appeal Board to show why he or she should be granted a security
clearance, until now there was a modicum of a right to confrontation, and a
right to challenge the evidence presented by the government," Mr. Cohen
wrote.

But in a ruling he describes, "anonymous redacted reports and other
agency's decision are enough to deny or revoke a DoD clearance regardless
of contrary evidence."

In a series of recent decisions, the DOHA Appeal Board "has accepted
unsigned, unsworn, summary statements from unidentified persons in
government agencies [that are] in direct conflict with live testimony at a
hearing to deprive or revoke security clearances of government contractor
employees."

To avoid or limit the fallout of negative reciprocity, Mr. Cohen advises
DoD employees and contractors to immediately appeal any adverse clearance
decision, "at least to get [their] side of the issues on the record."  Left
unchallenged, it appears that adverse decisions by other agencies will be
presumed reliable by DOHA and that any later attempt to rebut them "will
most probably be rejected."

See "Has the Defense Office of Hearings and Appeals Become a Star Chamber
Court?" by Sheldon I. Cohen, October 19, 2012.

        http://www.fas.org/sgp/eprint/doha-cohen.pdf

The Department of Defense last week published a three-volume "DoD
Sensitive Compartmented Information (SCI) Administrative Security Manual,"
DoD Manual 5105.21, October 19, 2012.  A copy is available here:

        http://www.fas.org/sgp/othergov/dod/index.html

CONGRESSIONAL OVERSIGHT, AND MORE FROM CRS

Newly updated reports from the Congressional Research Service which
Congress has not made publicly available include the following.

Congressional Oversight, October 17, 2012:

        http://www.fas.org/sgp/crs/misc/97-936.pdf

Contemporary Developments in Presidential Elections, October 18, 2012:

        http://www.fas.org/sgp/crs/misc/R42139.pdf

U.S. International Trade: Trends and Forecasts, October 19, 2012:

        http://www.fas.org/sgp/crs/misc/RL33577.pdf

President of the United States: Compensation, October 17, 2012:

        http://www.fas.org/sgp/crs/misc/RS20115.pdf

Peru in Brief: Political and Economic Conditions and Relations with the
United States, October 18, 2012:

        http://www.fas.org/sgp/crs/row/R42523.pdf

Libya: Transition and U.S. Policy, October 18, 2012:

        http://www.fas.org/sgp/crs/row/RL33142.pdf

China Naval Modernization: Implications for U.S. Navy Capabilities --
Background and Issues for Congress, October 17, 2012:

        http://www.fas.org/sgp/crs/row/RL33153.pdf

Navy Force Structure and Shipbuilding Plans: Background and Issues for
Congress, October 18, 2012:

        http://www.fas.org/sgp/crs/weapons/RL32665.pdf

_______________________________________________
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
voice:  (202) 454-4691
twitter: @saftergood
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