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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.