Secrecy News -- 10/15/12

Mon Oct 15 07:01:11 PDT 2012

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 106
October 15, 2012

Secrecy News Blog:  http://www.fas.org/blog/secrecy/

**     KIRIAKOU NOT ALLOWED TO ARGUE LACK OF INTENT TO HARM U.S.
**     SECRECY CONFERENCE AT FORDHAM LAW SCHOOL

KIRIAKOU NOT ALLOWED TO ARGUE LACK OF INTENT TO HARM U.S.

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.

	http://www.fas.org/sgp/jud/kiriakou/100312-reply98.pdf

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."

	http://www.fas.org/sgp/jud/kiriakou/101112-Aquash.pdf

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."

	http://www.fas.org/sgp/jud/kiriakou/101112-tate-quash.pdf

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.

SECRECY CONFERENCE AT FORDHAM LAW SCHOOL

A day-long conference on national security secrecy will be held tomorrow,
October 16, at Fordham Law School in New York City.

The conference brings together a promising mix of former government
officials, journalists, litigators, academics and others, including myself.

For more information on the conference, which is open to the public, see
here:

	http://www.fas.org/sgp/news/2012/10/fordham.pdf

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

The Secrecy News Blog is at:
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691
twitter: @saftergood

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