McLEAN, Va. (AP) – Prosecutors have won a key legal ruling in their case against a former CIA officer accused of leaking the names of covert operatives to journalists.
The judge who will oversee John Kiriakou’s trial next month ruled Tuesday that prosecutors will not have to prove that Kiriakou actually intended to harm the United States by allegedly leaking the covert officers’ identities. Instead, they will only have to show that Kiriakou had “reason to believe” that the information could be used to injure the U.S.
U.S. District Judge Leonie Brinkema issued the ruling Tuesday. Kiriakou is charged with one count of disclosing classified information identifying a covert agent, three counts of illegally disclosing national defense information and one count of making false statements. He faces up to 45 years in prison if convicted.
Trying to prove that Kiriakou, a CIA veteran who played a central role in the agency’s capture of al-Qaida terrorist Abu Zubaydah in Pakistan in 2002, intended to harm the United States could have proven exceedingly difficult. When a judge imposed a similar standard in a leak case against two pro-Israel lobbyists, prosecutors ended up dropping charges they had been pursuing for years.
Kiriakou’s lawyers argued for that stricter “intent-to-harm” standard to be applied in the Kiriakou case. They were demanding the government turn over classified evidence that would demonstrate Kiriakou’s devotion to the U.S. That material includes details about his role in the capture of Abu Zubaydah, who gave interrogators information that led to the arrest of “dirty bomb” plotter Jose Padilla and exposed Khalid Sheikh Mohamed as the mastermind of the Sept. 11 terror attacks.
Prosecutors, though, successfully argued that the stricter standard should not be applied to a government employee who was on notice about the importance of protecting classified information, and Brinkema agreed.
“Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed,” Brinkema wrote. “Accordingly, there can be no question that Kiriakou was on clear notice of the illegality of his alleged communications.”
Kiriakou faces another potential setback in his defense: two journalists Kiriakou wants to depose have filed motions to quash the subpoenas. The journalists say they enjoy immunity from the subpoenas under the First Amendment protections guaranteeing freedom of the press. One of them is Washington Post researcher and former ABC producer Matthew Cole, identified in court papers only as “Journalist A.”
A third journalist linked to the case, New York Times reporter Scott Shane, so far has not filed a motion to quash, but the paper has said it would resist any effort to compel Shane’s testimony.
Court papers indicate that the investigation of Kiriakou began in 2009 when authorities became alarmed after discovering that detainees at Guantanamo Bay possessed photographs of CIA and FBI personnel. The investigation eventually led back to the alleged leaks by Kiriakou, according to a government affidavit.
The papers indicate prosecutors believe Kiriakou leaked the name of one covert operative to a journalist, who subsequently disclosed the name to an investigator working for the lawyer of a Guantanamo detainee.
Kiriakous trial in U.S. District Court in Alexandria is scheduled for Nov. 26. He is free on unsecured bond.
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