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Defense Motions in U.S. v. Kiriakou

Wells Bennett
Monday, June 25, 2012, 5:38 PM
Last week, two defense motions were released in United States v.

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Last week, two defense motions were released in United States v. Kiriakou, the much-publicized prosecution now ongoing in the Eastern District of Virginia.   (Steve Aftergood has copies of the filings and a summary of them over at Secrecy News.)  The defendant, an ex-CIA officer involved in the apprehension of Abu Zubaydah, seeks dismissal of the lone charge brought against him under Section 421(a) of Intelligence Identities Protection Act, and three charges filed under Section 793(d) of the Espionage Act.   (The government also claims that Kiriakou willfully concealed information from the Central Intelligence Agency's publication review board, during its security scrubbing of Kiriakou's then-forthcoming memoir.  Last week's motions do not raise any legal challenge to this facet of the prosecution.)     In his first motion to dismiss,  Kiriakou says both 421(a) and 793(d) contain language that is so vague as to violate the Fifth Amendment's due process clause, and so broad as to punish a substantial, intolerably high amount of First Amendment-protected speech.    Under the Identities Act, a defendant may be convicted only if, among other things, he intentionally has disclosed the identity of a covert agent while "knowing that the United States is taking affirmative measures to conceal such covert agent's relationship to the United States."   The "affirmative measures" phrase is not defined by statute, and no court has ever interpreted it, according to defense attorneys.  They argue that "[t]here is no standard in the statute against which to measure any steps taken by the government, and, therefore, no way to determine in advance whether any particular disclosure is prohibited by the [Identities Act]."  The need for such guesswork renders Section 421(a) unconstitutionally vague.   The same reasonably-intelligent-people-can't-tell-what's-illegal problem inheres in the three counts charged under Section 793(d) of the Espionage Act.  That provision bans disclosure of "information relating to the national defense" that the defendant has reason to believe "could be used to the injury of the United States or to the advantage of any foreign nation."  The defense filing claims that such "broad and undefined phrases" are, like the Identities Act's "affirmative measures" language, unconstitutionally vague - even though, as Kiriakou's lawyers acknowledge, a panel of the Fourth Circuit and a district judge within the Eastern District of Virginia both have rejected vagueness challenges to the law.   The appellate case is  distinguishable, in Kiriakou's view - there, the defendant had transmitted tangible, classified satellite photographs.  By contrast, Kiriakou stands accused of disclosing intangible information - the identities of covert agents.  Also, Kiriakou says that the Fourth Circuit's decision did not address the constitutionality of the phrase "reason to believe [the information] could be used to the injury of the United States or to the advantage of any foriegn nation."  Finally, Kiriakou notes that the unfavorable cases cited executive classification rules as providing sufficient guidance about the reach of the Espionage Act.  This tees up a central theme of the defense briefing: the government publicly has acknowledged its own tendency towards profound over-classification - that is, it has made lots of stuff secret that in fact could be revealed without any harm to the national security.  Overclassification, Kiriakou argues, undercuts the reasoning of the two cases that could be seen as cutting against him. The motion turns to the First Amendment's overbreadth doctrine.  The defense says that, unlike Section 793(d) of the Espionage Act, Section 421(a) of the Identities Act  

does not require the government to prove that the defendant intended to injure the United States or had reason to believe that his disclosures would harm the United States or an assist an enemy.  Without these requirements, the statute fails the constitutional balancing test [for overbreadth] because it penalizes speech well beyond those instances where the government needs to maintain secrecy in order to prevent actual harm to the national security.

Again, overclassification is key to Kiriakou's argument.  That tendency, his lawyers claim, necessarily "means that not all classified information has the potential to damage national security if released."  The implication seems to be that a good deal of overclassified information would otherwise warrant First Amendment protection - but will not find its way into the public, or see scrutiny by the press, because of the Identities Act.  Overclassification also underlies Kiriakou's overbreath challenge to 793(d).  As before, the defense here notes some contrary precedent, but challenges it as incorrect.  

For the defendant, a final illustration of 793(d)'s overbreadth is its use by the prosecution here, in a manner that contravenes the intent of Congress.  As noted, Kiriakou stands charged under the Identities Act for revealing the name of a "covert agent," a term defined by 421(a), to a journalist.  But he also faces one count under the Espionage Act for revealing other, non-identity information - namely, that same covert agent's association with the CIA's Rendition, Detention and Interrogation progam.  This runs counter to the defense's interpretation of 421(a), which, the lawyers say, marks a congressionally-drawn boundary for disclosures regarding covert agents.  On this reading, the government impermissibly is

trying to use Section 793(d) as a "catchall provision," to allow it to punish communications cited in Count 1 even if it cannot meet the specific requirements of Section 421.  But if the prosecution's scope is not limited by the specific contours of 421, disclosures about CIA agents that Congress did not intend to criminalize, and that should be protected under the Constitution, will be chilled by fear of the significant criminal penalties that may be imposed under Section 793(d).  For this reason, Section 793(d) is unconstitutionally overbroad when applied to the charges at issue here. 

Kiriakou's second filing says that the Identities Act and Espionage Act charges should be thrown out on grounds of selective and/or vindictive prosecution: selective, lawyers say, because Kiriakou spoke to the media in a manner offensive to the government, in particular by stating in a television interview that terrorism detainees had been tortured by U.S. officials and that such torture was ineffective.  Moreover, leakers of information favorable to the government consistently have escaped prosecution - or at least appear to have escaped it thus far.    The pattern implies a special vindictiveness towards Kiriakou, one prohibited by the Fifth Amendment.  From the motion:

[A]ll the available evidence indicates that this animus toward Mr. Kiriakou is the reason he faces prosecution.  If Mr. Kiriakou had gone to the press with stories the administration approved of, the government's consistent treatment of similar cases indicates no prosecution would have followed.   When White House aides leaked stories about the heroes who killed Osama bin Laden, they were not prosecuted.  When the Washington Post was granted access to the covert director of the [Counterterrorism Center] for a profile of those directing America's "war on terror," no one was prosecuted.  But when John Kiriakou gave an interview where he admitted the United States used waterboarding and when he opined that waterboarding was ineffective, the government went after him. 

The second motion concludes with a just-in-case request.  Shoud the vast public record of unprosecuted leaks not suffice to show animus to their client, then Kiriakou's lawyers want discovery into the government's motivations for prosecuting Kiriakou at this time.   

The motions are scheduled for a hearing before Judge Brinkema on July 20. 


Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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