Prosecution of Accused CIA Leaker Will Face Legal Hurdles

Former CIA officer John C. Kiriakou was indicted yesterday on charges of leaking classified information to the press in violation of the Espionage Act and the Intelligence Identities Protection Act. He had been charged on January 23 but the indictment was not filed and unsealed until yesterday.

Kiriakou is accused of violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert CIA officer, and of violating the Espionage Act for allegedly disclosing national defense information to persons not authorized to receive it. He is further accused of making false statements to the CIA Publications Review Board in connection with a manuscript he intended to publish.

While the indictment is a daunting blow to Mr. Kiriakou, who must mobilize an expensive and burdensome defense, it is challenging in a different way for the prosecution, which will face a variety of substantive and procedural hurdles.

For one thing, it remains to be shown that the “covert officer” whose identity was allegedly disclosed to a reporter by Kiriakou actually falls within the ambit of the Intelligence Identities Protection Act. To be subject to the Act’s penalties, the covert officer in question — whose identity has not been publicly revealed — must not only be under cover but must also have served abroad within the past 5 years.

But the prosecution’s biggest challenge, which may well be insurmountable, will be to demonstrate to a jury that Mr. Kiriakou actually intended to harm the United States or to assist a foreign nation by committing an unauthorized disclosure.

The new indictment asserts generally that Kiriakou “had reason to believe [the information] could be used to the injury of the United States and to the advantage of any foreign nation,” which is an element of the crime set forth in the Espionage Act (18 USC 793).

Yet the meaning of this provision was construed by Judge T.S. Ellis III in a 2006 opinion in a way that would seem to make the prosecution of Mr. Kiriakou particularly difficult. In light of that opinion, the government will have to prove not merely that Kiriakou “had reason to believe” some harm to the United States could possibly result from his action, but that he deliberately intended to cause such harm.

This follows from the (alleged) fact that Kiriakou disclosed classified “information” rather than classified “documents,” as well as from the seemingly duplicative Espionage Act use of the terms willfulness and reason to believe, which Judge Ellis interpreted thus:

“If a person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for ‘willfully’ committing the prohibited acts even if he viewed the disclosure as an act of patriotism,” Judge Ellis wrote. “By contrast, the ‘reason to believe’ scienter requirement that accompanies disclosures of information requires the government to demonstrate the likelihood of defendant’s bad faith purpose to either harm the United States or to aid a foreign government.” (see pp. 33-34).

But there is no known indication that Mr. Kiriakou, a former CIA counterterrorism operations officer, had a bad faith purpose to harm the United States, and every indication of the opposite.

“For more than 14 years, John worked in the field and at home, under conditions of great peril and stress and at great personal sacrifice, dedicating himself to protecting America and Americans from harm at home and abroad,” states a new website devoted to his cause.