John Kiriakou interviewed by Truthout's Jason Leopold/Flickr Photo by Truthout.org

Ex-CIA agent John Kiriakou, who blew the whistle on torture authorized by the administration of President George W. Bush, is accused of leaking classified information to journalists on the identities of a “covert CIA officer” and details on the other role of “another CIA employee in classified activities.” He was indicted in April on charges that included one count of violating the Intelligence Identities Protection Act, three counts of violating the Espionage Act and one count for “allegedly lying to the Publications Review Board of the CIA” so he could include classified information in his book.

In a latest development in the case, Kiriakou’s defense is pushing for classified information on the CIA’s capture of alleged al Qaeda operative, Abu Zubaydah. It also is seeking testimony from journalists on the “leaks” and “emails,” which detail the “CIA’s unsuccessful requests to stop the New York Times from publishing an article that named one of the exposed operatives,” according to the Associated Press.

The defense filed a motion on October 9 indicating it would like to depose three journalists. It notes, “The disclosures alleged in Counts 1 through 4 of the lndictment relate to Mr. Kiriakou’s purported discussions with Journalist A and Journalist B or Researcher 1, regarding the identity and/or association of two individuals–Covert Officer A and Officer B to the Rendition, Detention, and Interrogation Program (the “RDI Program”).”

Also, the motion makes the factual argument that “no record of interviews or any other statements to the government by Journalist A, Journalist B or Researcher 1” have been produced for the defense nor has the government provided any “context for the overall scheme or process,” which Kiriakou “allegedly disclosed” information. Particularly, there is no information in discovery evidence that has been provided to the defense on whether the journalists had “independent sources for the classified information.”

The motion shows that the defense wanted to subpoena three journalists. Who are they?

Jesselyn Radack of the Government Accountability Project has written about the case. On April 9 of this year, in a guest post for then-Salon columnist Glenn Greenwald, she wrote Matthew Cole of ABC News is “Journalist A” and “Journalist B” is Scott Shane of the New York Times.

On October 10, Radack sent a message on Twitter indicating two journalists had been subpoenaed.

In a message that followed, she noted these two journalists are referred to in the indictment against Kiriakou. The government, however, has not subpoenaed these journalists. So, she suggested Kiriakou was backed into a corner, where he would appear to be violating press freedom by subpoenaing them for his defense:

Marcy Wheeler of Emptywheel.net reminded Radack that Shane had “two dozen” sources for his article on Kiriakou. This prompted Radack to respond with a message that stated Shane was not one of the journalists subpoenaed:

On April 6, Radack wrote, “Two of the Espionage Act charges stem from Kiriakou’s alleged communications with New York Times reporter Scott Shane, for a story he wrote in 2008 and for which – Wheeler reports – Shane had “around 23 other sources (including former CIA Executive Director Buzzy Krongard).” Yet again, Kiriakou – who blew the whistle on waterboarding – is the only one to be charged, and 3 1/2 years after the article was published as a result of an investigation having nothing to do with the Shane article.”

Radack posted a cryptic tweet after this exchange:

Who is Julie Tate? Her name has not surfaced yet in coverage of Kiriakou’s case.

On January  23, 2012, Tate was listed as a “staff writer” for Greg Miller’s story on Kiriakou being charged. She contributed to a story on the International Committee on the Red Cross concluding in a “secret report that the Bush administration’s treatment of al Qaeda captives had ‘constituted torture.’” She helped research an article on the waterboarding and “rough interrogation” (torture) of Abu Zubaydah, which included quotes from Kiriakou. She contributed to two stories on revelations related to CIA prisons in 2007.

Tate supplied research to all of these stories. She was on the the CIA torture beat when the leak allegedly happened. Her Twitter account says she is a researcher for the Washington Post. It is likely and possible that she is Researcher 1.

Additionally, Radack highlighted Cole in an update to her guest post at Salon:

“Journalist A” in the Kiriakou indictment, Matthew Cole (who allegedly received illegal leaks from Kiriakou), is turning out to be a mercurial character.  As Politico’s Josh Gerstein reported, Cole “worked until earlier this year as a producer for ABC News’s investigative unit … Cole’s alleged role also raises questions about whether Cole, whose website indicates he was working on a book at the time, was straddling the line between traditional journalism and information-gathering for lawyers representing Guantánamo detainees. … Public court papers don’t offer much in the way of context for Cole’s interaction with the defense investigator.” Nor does Cole’s website, which was taken down after Gerstein’s article on Monday but can be seen here, elucidate the matter.

Cole’s removed website also says that Cole is “currently under contract to write a book for Simon & Schuster,” but as Jason Leopold—lead investigative reporter for Truthout.org – told me, Cole’s Simon & Schuster contract was cancelled. [emphasis not added]

Cole, according to Radack’s Salon report, allegedly received illegal leaks.

What about Journalist “B”? Radack claims it is not Shane. So, who could this person be? Or, perhaps, Radack was confused?

The tweets from Radack suggest only two journalists have been subpoenaed, even though the motion for depositions includes a request for three witnesses. Is it possible that Radack thought Journalist B was now Tate? Was she unaware that the defense was referring to a Researcher 1?

These are the questions that members of the press covering Kiriakou’s case should probably be asking. There are three journalists at the center of this leak prosecution. (One of them, Cole, seems like someone, who deserves particular scrutiny. How has he helped the government pursue Kiriakou?)

All three of the witnesses are likely to claim “reporter’s privilege.” If that happens, the government will be arguing in one leaks case (US v. Sterling) that reporters do not have the privilege to protect themselves from being forced to testify and in another (US v. Kiriakou) that reporters do have a privilege to protect themselves from providing testimony.

By subpoenaing journalists for their defense, it seems like Kiriakou and his defense have a complete disregard for press freedom. Steven Aftergood of Secrecy News has described the request for depositions “a new challenge to press independence.” However, the flipside is the government has put Kiriakou and his defense in this situation.

The government makes references to these three journalists in their indictment against Kiriakou, but they have refused to seek testimony from the journalists. This puts Kiriakou and his defense in a position where they can either request depositions and appear to be attacking freedom of the press or they can choose to not seek any more information on the journalists and the information, which the government is believed to be using for prosecution.

If the prosecution is completely bogus and about to collapse, the public relations disaster that could occur as a result of these journalist subpoenas now gives the government the leverage to push Kiriakou to accept a plea deal. Radack has written, “For these heavy-handed, oh-so-serious, America-harming, foreign nation-benefitting Espionage Act charges, the government [is] willing to let Kiriakou plead guilty to a single felony with no jail time.”

The government just wants to demonstrate and prove that it is not waging a war on whistleblowers and has ample legal justification for prosecuting people like Kiriakou, even if they cause no harm whatsoever to national security.

It is similar to what happened to NSA whistleblower Thomas Drake. In that case, the government referenced newspaper articles in the indictment but sought to preclude Drake and his defense from discussing the articles in open court. The judge was completely opposed to subpoenaing any of the authors of those articles to testify in court. Though the judge rejected the prosecution’s motion, it demonstrated the US government is willing to manipulate press coverage or involvement in alleged acts and play legal games to give it an edge in prosecuting those accused of leaks. And, Drake pled guilty to misdemeanor because the government’s case completely fell apart, which is what could happen with the government’s case against Kiriakou if the defense is able to get the information it seeks.