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Government Files Opposition in Kiriakou Case

Wells Bennett
Friday, July 6, 2012, 3:06 PM
The government has filed its opposition brief in United States v.

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The government has filed its opposition brief in United States v. Kiriakou – the unauthorized disclosures and false statements case against a former CIA officer, who helped to apprehend Abu Zubaydah and later publicly bashed the government for torturing terrorism detainees.  In its opposition, the government takes on Kiriakou’s recently-filed motion for  a bill of particulars, as well as his two motions to dismiss.  (Politico's Josh Gerstein and Emptywheel's Marcy Wheeler have coverage here and here, respectively.) The recent procedural history: last month, the defendant had asked the court to throw out the bulk of the government's case, arguing first that he was the victim of a selective and vindictive prosecution, and second, that certain provisions of the Espionage and Intelligence Identities Act were unconstitutionally vague and overbroad.  (He apparently does not seek dismissal of the government’s claim that Kiriakou willingly deceived the CIA’s publications review board, during its review of his memoir.) Separately, Kiriakou had moved for an order requiring prosecutors to submit a bill of particulars – essentially a more detailed explication of the allegations against him.  Among other things, the defendant asked the government to identify any “affirmative measures” that the CIA had taken in order to conceal the identity of “Covert Officer A” - whom Kiriakou allegedly had outed.  This dovetailed with the defendant’s earlier vagueness challenge: in the latter, Kiriakou had argued that reasonably intelligent people could not ascertain the meaning of “affirmative measures,” an undefined phrase set forth in Section 421(a) of the Intelligence Identities Protection Act. The government’s opposition arguments are summarized below.    Bill of Particulars A bill of particulars – a sort of indictment plus - is only required when the original indictment failed to provide adequate information.  And indictments are deemed adequate when they set forth the elements of charged offenses, and fairly apprise the defendant of the government’s allegations, such that the defendant prepare a case and, if necessary, raise double jeopardy arguments upon subsequent prosecution for the same offenses. Prosecutors say the indictment thoroughly satisfies these standards.  For example, some of the unauthorized disclosure counts are based upon Kiriakou’s own emails, the contents of which are described in the indictment itself.  Regarding the “affirmative measures” taken to mask Covert Officer A’s identity, the government agrees that not all such measures are listed in the indictment – but nevertheless argues that no exhaustive list is required.   Instead, the legislative history of Section 421 notes different kinds of “affirmative measures,” which could serve as guideposts for Kiriakou as he plans his defense.   Moreover, and in any case, the government says its forthcoming classified discovery will include employment records regarding “Covert Officer A.”  That, presumably, will describe the various steps the government took to shield the officer’s identity from public view. Selective and/or Vindictive Prosecution Regarding selective prosecution, the opposition proceeds in two parts.  The first is factual: according to the government, Kiriakou’s indictment was the result of an investigation into security breaches at GTMO.  Photographs of “Officer B” (whose association with the CIA was classified) had been shown to a detainee.   “Covert Officer A” also had been identified in a document filed with a military commission at Guantanamo.  An inquiry into these events – but not any inquiry into Kiriakou’s public remarks about waterboarding – lead eventually to his indictment.   (Provocatively, prosecutors also quote emails from Kiriakou, in which the defendant allegedly praised the appointment of a special prosecutor to investigate the Guantanamo disclosures; the government also refers to an FBI interview, in which Kiriakou allegedly confirmed that “Covert Officer A” was “always undercover,” and repeatedly denied making any unauthorized disclosures.) Law-wise, the government maintains that its prosecution decisions are entitled to a “presumption of regularity,” and also to substantial court deference.  Those high hurdles can only be overcome with clear evidence – which Kiriakou doesn’t have.  Among other things, Kiriakou must demonstrate that he has been “singled out” – that is, that others “similarly situated” have not been prosecuted, and that the government has acted in bad faith.  And yet, according to prosecutors, the defense has not pointed to any similarly situated defendants.  Instead he speculates about why the government did not bring cases against other unnamed leakers.  Kiriakou has not, for example, identified anyone else who could have been prosecuted but was not, much less demonstrated that those cases are indistinguishable from his.  Regarding bad faith, the government emphasizes that Kiriakou is not being prosecuted for any legally protected speech, but instead for unauthorized disclosures of classified information. Finally, the government claims Kiriakou is not entitled to discovery regarding the government’s exercise of prosecutorial discretion.  That, too, calls for a substantial showing – which, in the prosecutors’ view, Kiriakou has not made. Vagueness Regarding the alleged vagueness of Section 421(a) of the Identities Act, the government simply disagrees with Kiriakou about “affirmative measures.”  He thinks the term’s meaning can only be guessed at.  For their part, prosecutors counter that, on a plain-language reading, “affirmative measures” must refer “to some positive actions, steps, or means taken to conceal a covert agent’s relationship to the United States.”  That interpretation, the government argues, finds support in the legislative history, which catalogued various methods the government might employ in attempting to keep covert officers’ identities secret.   Moreover, Section 421(a) liability is limited to those who “had authorized access to classified information that identifies a covert agent” – a narrow class of individuals who are in a position to know what “affirmative measures” might entail.   People in this category, the prosecutors add, have no First Amendment right to disclose government secrets. Nor, the government continues, is guesswork required in order to understand the reach of the other disclosures law at play in this case: Section 793(d) of the Espionage Act.  Common sense says that classified information should not be disclosed by government officials; and Kiriakou, who signed several non-disclosure agreements, is a person to whom Section 793(d) obviously applies.  He therefore is “foreclosed from challenging the statute on grounds of vagueness.” Even if he could challenge Section 793(d) as unconstitutionally vague, Kiriakou’s vagueness arguments would still fail, in the government’s view.  For one thing, Kiriakou concedes that the Fourth Circuit has upheld 793(d) in the face of a vagueness challenge.  Further, the law requires the government to prove that the defendant acted “willfully” – that is, with knowledge that his conduct was unlawful.    That, according to prosecutors, takes care of Kiriakou’s suggestion that Section 793(d) could sweep in inadvertent or lawful actions. And the “information relating to the national defense” term is also not vague; the Court of Appeals has read “national defense” to “include only such information that the United States government has closely held and taken steps to keep from official public disclosure.”  The government must also prove that the defendant disclosed the defense information (in this case, information only, as opposed to secret documents themselves) to someone “not entitled to receive it,” while having “reason to believe” that the information’s disclosure could injure the United States or inure to a foreign country’s benefit.  Finally, the government speculates that the universe of information that is both improperly classified but not considered “defense information” for 793(d) purposes is quite small - or at least small enough such that the provision would not sweep in a substantial amount of protected activity, relative to the amount of unprotected activities that it validly proscribes. The government is especially dismissive of Kiriakou’s claims regarding extensive government over-classification.  These “have no bearing on the constitutional status of the [the Espionage Act],” prosecutors argue.  The question at trial will not be whether the disclosed information was classified, but instead whether it “related to the national defense.”  And, in any event, courts in fact have relied upon classification guidelines, in construing 793(d)’s language.  Those with access to classified information understand the damage that can be caused by the information’s unauthorized disclosure; they consequently “cannot be heard to complain” about a lack of notice, when they face prosecution for Espionage Act for violations. Overbreadth Similar “limited access” principles foreclose Kiriakou’s overbreadth claim regarding Section 421(a) of the Identities Act.  This provision only applies to defendants who had access to classified information that identified a covert agent. Again, prosecutors reject Kiriakou’s suggestion that, under certain circumstances, CIA personnel can have a legitimate, constitutionally protected interest in disclosing the identities of undercover officers.  The absence of any such interest disposes of Kiriakou’s suggestion that Section 421(a) is unconstitutional because, unlike 793(d) of the Espionage Act, it does not require the government to prove that the defendant meant to harm the United States, or to assist its enemies.   The government’s position is clear: you don’t have a right to tell people who the CIA’s secret agents are in the first place. For that same reason, Section 793(d)’s does not implicate the overbreadth doctrine in Kiriakou’s case.  There’s also superseding authority too: the Court of Appeals upheld the statute against an overbreadth challenge.  Though Kiriakou challenges that ruling as wrong, his alleged basis for doing so – rampant over-classification by the executive branch – is irrelevant to the constitutionality of Section 793(d).  And again, the fact that information is classified is not dispositive in a Section 793(d) prosecution.  The name of the game, instead, is national defense information. The response concludes with a quick rebuttal to Kiriakou’s “double-dipping” argument.  Recall that Kiriakou has been charged under the Identities Act with revealing the identity of a “covert agent,” a term defined by 421(a).  The defendant also has been separately charged under the Espionage Act, for revealing other, non-identity information about that same person - namely, that agent’s association with the CIA’s Rendition, Detention and Interrogation program.  This runs counter to the defense’s interpretation of 421(a), which, defense lawyers say, marks a congressionally-drawn boundary for disclosures regarding covert agents.  It is thus a no-no for the government to prosecute Kiriakou, under 793(d), for disclosures related a cover agent that it could not prosecute him for under 421(a). There’s nothing to this, according to prosecutors:

Kiriakou also argues that “[t]he overlap between Section 421 and Section 793(d) further demonstrates the constitutional infirmities of Section 793(d),” and points out that Section 421 “set[s] out a number of specific elements . . . and provides a definition of the term ‘covert agent,’” while Section 793(d) does not. (Vagueness Mot. at 18). But the differences between the two sections merely reflect the different purposes of the respective statutes. Section 421(a)’s elements reflect the narrow class of individuals to whom the statute targets, i.e., individuals who “had authorized access to classified information that identifies a covert agent,” and the specific harm it was designed to prevent, i.e., the unauthorized disclosure of “information that identifies a covert agent.” 50 U.S.C. § 421(a). That 793(d) has a broader purpose of preventing the unauthorized disclosure of information relating to the national defense has no bearing on overbreadth analysis.

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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