Government says it will not seek testimony of journalists in Kiriakou prosecution

The U.S. government announced it will not subpoena journalists as witnesses in the prosecution of a former intelligence officer who allegedly leaked classified information.

According to a motion filed last week and first reported by POLITICO's Josh Gerstein, the government said the primary evidence in a trial against John C. Kiriakou will consist of the former CIA operative's recovered e-mail messages, his correspondence with the agency's Publications Review Board, non-disclosure agreements, a recorded interview with the FBI and other records and witnesses.

“The government does not intend to seek the testimony of either journalists to whom Kiriakou made the charged disclosures,” according to the motion. The journalists are unnamed in court records and are only referred to as "Journalist A" and "Journalist B."

Kiriakou was indicted in April after lawyers representing high profile prisoners at Guantanamo Bay received personal information about CIA employees. He was charged with violating the Espionage Act, the Intelligence Identities Protection Act and making false statements to the CIA Publications Review Board about "The Reluctant Spy" — a 2010 memoir he published about his time searching for terrorists as a CIA operative.

The government’s statement that it can prove its case against Kiriakou without direct, testimonial evidence from the journalists to whom he allegedly leaked the information stands in stark contrast with its assertions in an unrelated leak prosecution.

The U.S. Department of Justice is currently asking a federal appellate court to require New York Times reporter James Risen to testify in the Espionage Act prosecution of former CIA analyst Jeffrey Sterling.

“James Risen is an eyewitness to the serious crimes with which the grand jury charged Sterling, and his testimony is directly relevant to, and powerful evidence of, the factual issues that the jury must decide at trial,” the government said in a motion at the trial level. “Because he is an eyewitness, his testimony will simplify the trial and clarify matters for the jury. . . . His testimony . . . will allow for an efficient presentation of the Government’s case.”

Risen has faced three subpoenas in three years and has successfully invoked the First Amendment-based reporter’s privilege to refuse to testify at both the grand jury and trial stages of the federal prosecution.

The government subpoenaed Risen in 2008 to identify the confidential source cited in a chapter of his book titled "State of War.” His source, whom the government alleges is Sterling, revealed information about an unsuccessful attempt by the CIA to infiltrate Iran's nuclear program.

A judge previously found that Risen’s need to protect his source outweighed the government’s need to establish its case. An appeal of that ruling is pending before the U.S. Court of Appeals in Richmond, Va. (4th Cir.), a three-judge panel of which heard oral arguments in the case in May. The Reporters Committee for Freedom of the Press joined several news media and advocacy organizations in a friend-of-the-court brief that argued that the protection of confidential sources is vital to ensuring the free flow of information to the public.