On Jan. 23, the U.S. Department of Justice announced it had filed a criminal complaint against former CIA officer John Kiriakou alleging that Kiriakou illegally disclosed, on multiple occasions, classified information to journalists regarding the CIA’s extraordinary rendition and interrogation programs. The complaint alleges that one of the journalists, in turn, disclosed some of that information to an investigator for the defense team of a Guantanamo detainee, which allegedly enabled the defense to take or obtain surveillance photos of government personnel. According to the criminal complaint, some of those photos were found in the possession of a detainee at Guantanamo, and the CIA requested a federal criminal investigation, which in turn led back to Kiriakou. The complaint and the government’s news release both stressed that that the investigation found no evidence that the defense lawyers were aware of, much less disclosed, the identities of the persons depicted in the photos and no evidence that the defense team disclosed classified matters to any detainees. Upon learning of Kiriakou’s arrest, the National Association of Criminal Defense Lawyers issued the following statement:
Statement of the National Association of Criminal Defense Lawyers
Washington, DC (Jan. 23, 2012) – The National Association of Criminal Defense Lawyers engaged qualified death-penalty counsel to provide representation for alleged “high-value” detainees facing military proceedings at Guantanamo, and promised them the necessary resources to do so. We did this during a time when the Military Commission Act did not provide for such resources. Like their uniformed co-counsel, the lawyers who were engaged received the necessary security clearance from the government and are all highly-respected professionals with the best reputations. We have always known that they discharged their duty to provide zealous representation in a completely ethical manner, and we welcome the close to this investigation.
No laws were broken by members of the defense teams. As the FBI noted in the complaint, no law prohibited defense counsel from filing a classified document under seal outlining for the court classified information it had learned during the course of its own investigation. That’s the way it’s supposed to be done, and that’s the way it was done.
Defense counsel for the high-value detainees filed a motion with the military commission seeking permission to obtain information necessary to the defense of the detainees. As the complaint notes, in support of the motion, defense counsel filed a sealed, classified affidavit naming a person or persons whom counsel believed to be government personnel who had been involved with their clients.
As for the photographs allegedly found in the detention facility at Guantanamo, the identities of the persons in the photographs were not disclosed to anyone. As the complaint explains, defense counsel showed photographs of persons who may have been involved with their clients, along with photos of persons not affiliated in any way with the government in what is known as a “double-blind” photo lineup. In a double-blind photo lineup, neither the person showing the photographs, nor the person viewing them, is aware of the identities of the individuals in the photos. Despite allegations in the media over the past few years, no covert officers were photographed by defense investigators. As the government’s complaint notes, the defense team did not photograph any persons whose association with the government was not public, except for non-covert persons who may have been physically present during interrogations.
Finally, as defense lawyers, we must assert in the strongest terms that the accusations against former CIA officer John Kiriakou are mere charges and not evidence of guilt. The government maintains the heavy burden of proving every element of each of the charges against him beyond a reasonable doubt. Until such time, Mr. Kiriakou is presumed to be innocent.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.