nationalsecuritylaw corrected United States v. Kiriakou (E.D. Va. Jan. 23, 2012) (

January 23, 2012

I wrote that summary paragraph too fast, and misstated the chain of alleged information transmission – the claim is that the defendant passed the information to a journalist who then shared it with the defense investigator.

From: Robert Chesney
Sent: Monday, January 23, 2012 11:20 AM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: United States v. Kiriakou (E.D. Va. Jan. 23, 2012) (

Well, this is going to get a lot of attention. Prosecutors are charging a former CIA officer with “repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities”—in connection with an incident at GTMO in which high-value detainees were found to have possession of photographs of certain government employees and contractors. The complaint alleges that the defendant passed the information to a defense team investigator, and that this in turn enabled the defense team to obtain or engage in surveillance resulting in the photographs.

The criminal complaint is attached, along with the underlying affidavit. From the DOJ press release:

The charges result from an investigation that was triggered by a classified defense filing in January 2009, which contained classified information the defense had not been given through official government channels, and, in part, by the discovery in the spring of 2009 of photographs of certain government employees and contractors in the materials of high-value detainees at Guantanamo Bay, Cuba. The investigation revealed that on multiple occasions, one of the journalists to whom Kiriakou is alleged to have illegally disclosed classified information, in turn, disclosed that information to a defense team investigator, and that this information was reflected in the classified defense filing and enabled the defense team to take or obtain surveillance photographs of government personnel. There are no allegations of criminal activity by any members of the defense team for the detainees.

Kiriakou, 47, of Arlington, Va., was a CIA intelligence officer between 1990 and 2004, serving at headquarters and in various classified overseas assignments. He is scheduled to appear at 2 p.m. today before U.S. Magistrate Judge John F. Anderson in federal court in Alexandria.

Kiriakou was charged with one count of violating the Intelligence Identities Protection Act for allegedly illegally disclosing the identity of a covert officer and two counts of violating the Espionage Act for allegedly illegally disclosing national defense information to individuals not authorized to receive it. Kiriakou was also charged with one count of making false statements for allegedly lying to the Publications Review Board of the CIA in an unsuccessful attempt to trick the CIA into allowing him to include classified information in a book he was seeking to publish.

The four-count criminal complaint, which was filed today in the Eastern District of Virginia, alleges that Kiriakou made illegal disclosures about two CIA employees and their involvement in classified operations to two journalists on multiple occasions between 2007 and 2009. In one case, revealing the employee’s name as a CIA officer disclosed classified information as the employee was and remains covert (identified in the complaint as “Covert Officer A”). In the second case, Kiriakou allegedly disclosed the name and contact information of an employee, identified in the complaint as “Officer B,” whose participation in an operation to capture and question terrorism subject Abu Zubaydah in 2002 was then classified. Kiriakou’s alleged disclosures occurred prior to a June 2008 front-page story in The New York Times disclosing Officer B’s alleged role in the Abu Zubaydah operation.

The CIA filed a crimes report with the Justice Department on March 19, 2009, prior to the discovery of the photographs and after reviewing the Jan. 19, 2009, classified filing by defense counsel for certain detainees with the military commission then responsible for adjudicating charges. The defense filing contained information relating to the identities and activities of covert government personnel, but prior to Jan. 19, 2009, there had been no authorized disclosure to defense counsel of the classified information. The Justice Department’s National Security Division, working with the FBI, began the investigation. To avoid the risk of encountering a conflict of interest because of the pending prosecutions of some of the high-value detainees, Mr. Fitzgerald was assigned to supervise the investigation conducted by a team of attorneys from the Southern District of New York, the Northern District of Illinois and the Counterespionage Section of the National Security Division who were not involved in pending prosecutions of the detainees.

According to the complaint affidavit, the investigation determined that no laws were broken by the defense team as no law prohibited defense counsel from filing a classified document under seal outlining for a court classified information they had learned during the course of their investigation. Regarding the 32 pages of photographs that were taken or obtained by the defense team and provided to the detainees, the investigation found no evidence the defense attorneys transmitting the photographs were aware of, much less disclosed, the identities of the persons depicted in particular photographs and no evidence that the defense team disclosed other classified matters associated with certain of those individuals to the detainees. The defense team did not take photographs of persons known or believed to be current covert officers. Rather, defense counsel, using a technique known as a double-blind photo lineup, provided photograph spreads of unidentified individuals to their clients to determine whether they recognized anyone who may have participated in questioning them. No law or military commission order expressly prohibited defense counsel from providing their clients with these photo spreads.

Further investigation, based in part on emails recovered from judicially-authorized search warrants served on two email accounts associated with Kiriakou, allegedly revealed that:

• Kiriakou disclosed to Journalist A the name of Covert Officer A and the fact that Covert Officer A was involved in a particular classified operation. The journalist then provided the defense investigator with the full name of the covert CIA employee;

• Kiriakou disclosed or confirmed to Journalists A, B and C the then-classified information that Officer B participated in the Abu Zubaydah operation and provided two of those journalists with contact information for Officer B, including a personal email address. One of the journalists subsequently provided the defense investigator with Officer B’s home telephone number, which the investigator used to identify and photograph Officer B; and

• Kiriakou lied to the CIA regarding the existence and use of a classified technique, referred to as a “magic box,” in an unsuccessful effort to trick the CIA into allowing him to publish information about the classified technique in a book.

Upon joining the CIA in 1990 and on multiple occasions in following years, Kiriakou signed secrecy and non-disclosure agreements not to disclose classified information to unauthorized individuals.

Regarding Covert Officer A, the affidavit details a series of email communications between Kiriakou and Journalist A in July and August 2008. In an exchange of emails on July 11, 2008, Kiriakou allegedly illegally confirmed for Journalist A that Covert Officer A, whose first name only was exchanged at that point, was “the team leader on [specific operation].” On Aug. 18, 2008, Journalist A sent Kiriakou an email asking if Kiriakou could pick out Covert Officer A’s last name from a list of names Journalist A provided in the email. On Aug. 19, 2008, Kiriakou allegedly passed the last name of Covert Officer A to Journalist A by email, stating “It came to me last night.” Covert Officer A’s last name had not been on the list provided by Journalist A. Later that same day, approximately two hours later, Journalist A sent an email to the defense investigator that contained Covert Officer A’s full name. Neither Journalist A, nor any other journalist to the government’s knowledge, has published the name of Covert Officer A.

At the time of Kiriakou’s allegedly unauthorized disclosures to Journalist A, the identification of Covert Officer A as “the team leader on [specific operation]” was classified at the Top Secret/Sensitive Compartmented Information (SCI) level because it revealed both Covert Officer A’s identity and his association with the CIA’s Rendition, Detention and Interrogation (RDI) Program relating to the capture, detention and questioning of terrorism subjects. The defense investigator was able to identify Covert Officer A only after receiving the email from Journalist A, and both Covert Officer A’s name and association with the RDI Program were included in the January 2009 classified defense filing. The defense investigator told the government that he understood from the circumstances that Covert Officer A was a covert employee and, accordingly, did not take his photograph. No photograph of Covert Officer A was recovered from the detainees at Guantanamo.

In a recorded interview last Thursday, FBI agents told Kiriakou that Covert Officer A’s name was included in the classified defense filing. The affidavit states Kiriakou said, among other things, “How the heck did they get him? . . . [First name of Covert Officer A] was always undercover. His entire career was undercover.” Kiriakou further stated that he never provided Covert Officer A’s name or any other information about Covert Officer A to any journalist and stated “Once they get the names, I mean this is scary.”

Regarding Officer B, the affidavit states that he worked overseas with Kiriakou on an operation to locate and capture Abu Zubaydah, and Officer B’s association with the RDI Program and the Abu Zubaydah operation in particular were classified until that information was recently declassified to allow the prosecution of Kiriakou to proceed.

In June 2008, The New York Times published an article by Journalist B entitled “Inside the Interrogation of a 9/11 Mastermind,” which publicly identified Officer B and reported his alleged role in the capture and questioning of Abu Zubaydah – facts which were then classified. The article attributed other information to Kiriakou as a source, but did not identify the source(s) who disclosed or confirmed Officer B’s identity. The charges allege that at various times prior to publication of the article, Kiriakou provided Journalist B with personal information regarding Officer B, knowing that Journalist B was seeking to identify and locate Officer B. In doing so, Kiriakou allegedly confirmed classified information that Officer B was involved in the Abu Zubaydah operation. For example, Kiriakou allegedly emailed Officer B’s phone number and personal email address to Journalist B, who attempted to contact Officer B via his personal email in April and May 2008. Officer B had provided his personal email address to Kiriakou, but not to Journalist B or any other journalist. Subsequently, Kiriakou allegedly revealed classified information by confirming for Journalist B additional information that an individual with Officer B’s name, who was associated with particular contact information that Journalist B had found on a website, was located in Pakistan in March 2002, which was where and when the Abu Zubaydah operation took place.

After The New York Times article was published, Kiriakou sent several emails denying that he was the source for information regarding Officer B, while, at the same time, allegedly lying about the number and nature of his contacts with Journalist B. For example, in an email dated June 30, 2008, Kiriakou told Officer B that Kiriakou had spoken to the newspaper’s ombudsman after the article was published and said that the use of Officer B’s name was “despicable and unnecessary” and could put Officer B in danger. Kiriakou also denied that he had cooperated with the article and claimed that he had declined to talk to Journalist B, except to say that he believed the article absolutely should not mention Officer B’s name. “[W]hile it might not be illegal to name you, it would certainly be immoral,” Kiriakou wrote to Officer B, according to the affidavit.

From at least November 2007 through November 2008, Kiriakou allegedly provided Journalist A with Officer B’s personal contact information and disclosed to Journalist A classified information revealing Officer B’s association with the RDI Program. Just as Journalist A had disclosed to the defense investigator classified information that Kiriakou allegedly imparted about Covert Officer A, Journalist A, in turn, provided the defense investigator information that Kiriakou had disclosed about Officer B. For example, in an email dated April 10, 2008, Journalist A provided the defense investigator with Officer B’s home phone number, which, in light of Officer B’s common surname, allowed the investigator to quickly and accurately identify Officer B and photograph him. Both Officer B’s name and his association with the RDI Program were included in the January 2009 classified defense filing, and four photographs of Officer B were among the photos recovered at Guantanamo.

In the same recorded interview with FBI agents last week, Kiriakou said he “absolutely” considered Officer B’s association with the Abu Zubaydah operation classified, the affidavit states. Kiriakou also denied providing any contact information for Officer B or Officer B’s association with the Abu Zubaydah operation to Journalists A and B prior to publication of the June 2008 New York Times article. When specifically asked whether he had anything to do with providing Officer B’s name or other information about Officer B to Journalist B prior to the article, Kiriakou stated “Heavens no.”

As background, the affidavit states that sometime prior to May 22, 2007, Kiriakou disclosed to Journalist C classified information regarding Officer B’s association with Abu Zubaydah operation, apparently while collaborating on a preliminary book proposal. A footnote states that Journalist C is not the coauthor of the book Kiriakou eventually published.

Prior to publication of his book, The Reluctant Spy: My Secret Life in the CIA’s War on Terror, Kiriakou submitted a draft manuscript in July 2008 to the CIA’s Publication Review Board (PRB). In an attempt to trick the CIA into allowing him to publish information regarding a classified investigative technique, Kiriakou allegedly lied to the PRB by falsely claiming that the technique was fictional and that he had never heard of it before. In fact, according to a transcript of a recorded interview conducted in August 2007 to assist Kiriakou’s coauthor in drafting the book, Kiriakou described the technique, which he referred to as the “magic box,” and told his coauthor that the CIA had used the technique in the Abu Zubaydah operation. The technique was also disclosed in the June 2008 New York Times article and referred to as a “magic box.”

In his submission letter to the PRB, Kiriakou flagged the reference to a device called a “magic box,” stating he had read about it in the newspaper article but added that the information was “clearly fabricated,” as he was unaware of and had used no such device. The affidavit contains the contents of an August 2008 email that Kiriakou sent his coauthor admitting that he lied to the PRB in an attempt to include classified information in the book. The PRB subsequently informed Kiriakou that the draft manuscript contained classified information that he could not use, and information regarding the technique that Kiriakou included in the manuscript remained classified until it was recently declassified to allow Kiriakou’s prosecution to proceed.

Upon conviction, the count charging illegal disclosure of Covert Officer A’s identity to a person not authorized to receive classified information carries a maximum penalty of five years in prison, which must be imposed consecutively to any other prison term; the two counts charging violations of the Espionage Act each carry a maximum term of 10 years in prison; and making false statements carries a maximum prison term of five years. Each count carries a maximum fine of $250,000.

A complaint contains only allegations and is not evidence of guilt. The defendant is presumed innocent and is entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.

The government is being represented in court by Assistant U.S. Attorneys Iris Lan (Southern District of New York) and Mark E. Schneider (Northern District of Illinois), and Justice Department trial attorney Ryan Fayhee of the Counterespionage Section of the National Security Division. Assistant U.S. Attorney Lisa Owings (Eastern District of Virginia) will assist in the matter under local court rules.

Complaint Criminal and Affidavit – SIGNED.pdf

Advertisements

nationalsecuritylaw United States v. Kiriakou (E.D. Va. Jan. 23, 2012) (

January 23, 2012

Well, this is going to get a lot of attention. Prosecutors are charging a former CIA officer with “repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities”—in connection with an incident at GTMO in which high-value detainees were found to have possession of photographs of certain government employees and contractors. The complaint alleges that the defendant passed the information to a defense team investigator, and that this in turn enabled the defense team to obtain or engage in surveillance resulting in the photographs.

The criminal complaint is attached, along with the underlying affidavit. From the DOJ press release:

The charges result from an investigation that was triggered by a classified defense filing in January 2009, which contained classified information the defense had not been given through official government channels, and, in part, by the discovery in the spring of 2009 of photographs of certain government employees and contractors in the materials of high-value detainees at Guantanamo Bay, Cuba. The investigation revealed that on multiple occasions, one of the journalists to whom Kiriakou is alleged to have illegally disclosed classified information, in turn, disclosed that information to a defense team investigator, and that this information was reflected in the classified defense filing and enabled the defense team to take or obtain surveillance photographs of government personnel. There are no allegations of criminal activity by any members of the defense team for the detainees.

Kiriakou, 47, of Arlington, Va., was a CIA intelligence officer between 1990 and 2004, serving at headquarters and in various classified overseas assignments. He is scheduled to appear at 2 p.m. today before U.S. Magistrate Judge John F. Anderson in federal court in Alexandria.

Kiriakou was charged with one count of violating the Intelligence Identities Protection Act for allegedly illegally disclosing the identity of a covert officer and two counts of violating the Espionage Act for allegedly illegally disclosing national defense information to individuals not authorized to receive it. Kiriakou was also charged with one count of making false statements for allegedly lying to the Publications Review Board of the CIA in an unsuccessful attempt to trick the CIA into allowing him to include classified information in a book he was seeking to publish.

The four-count criminal complaint, which was filed today in the Eastern District of Virginia, alleges that Kiriakou made illegal disclosures about two CIA employees and their involvement in classified operations to two journalists on multiple occasions between 2007 and 2009. In one case, revealing the employee’s name as a CIA officer disclosed classified information as the employee was and remains covert (identified in the complaint as “Covert Officer A”). In the second case, Kiriakou allegedly disclosed the name and contact information of an employee, identified in the complaint as “Officer B,” whose participation in an operation to capture and question terrorism subject Abu Zubaydah in 2002 was then classified. Kiriakou’s alleged disclosures occurred prior to a June 2008 front-page story in The New York Times disclosing Officer B’s alleged role in the Abu Zubaydah operation.

The CIA filed a crimes report with the Justice Department on March 19, 2009, prior to the discovery of the photographs and after reviewing the Jan. 19, 2009, classified filing by defense counsel for certain detainees with the military commission then responsible for adjudicating charges. The defense filing contained information relating to the identities and activities of covert government personnel, but prior to Jan. 19, 2009, there had been no authorized disclosure to defense counsel of the classified information. The Justice Department’s National Security Division, working with the FBI, began the investigation. To avoid the risk of encountering a conflict of interest because of the pending prosecutions of some of the high-value detainees, Mr. Fitzgerald was assigned to supervise the investigation conducted by a team of attorneys from the Southern District of New York, the Northern District of Illinois and the Counterespionage Section of the National Security Division who were not involved in pending prosecutions of the detainees.

According to the complaint affidavit, the investigation determined that no laws were broken by the defense team as no law prohibited defense counsel from filing a classified document under seal outlining for a court classified information they had learned during the course of their investigation. Regarding the 32 pages of photographs that were taken or obtained by the defense team and provided to the detainees, the investigation found no evidence the defense attorneys transmitting the photographs were aware of, much less disclosed, the identities of the persons depicted in particular photographs and no evidence that the defense team disclosed other classified matters associated with certain of those individuals to the detainees. The defense team did not take photographs of persons known or believed to be current covert officers. Rather, defense counsel, using a technique known as a double-blind photo lineup, provided photograph spreads of unidentified individuals to their clients to determine whether they recognized anyone who may have participated in questioning them. No law or military commission order expressly prohibited defense counsel from providing their clients with these photo spreads.

Further investigation, based in part on emails recovered from judicially-authorized search warrants served on two email accounts associated with Kiriakou, allegedly revealed that:

• Kiriakou disclosed to Journalist A the name of Covert Officer A and the fact that Covert Officer A was involved in a particular classified operation. The journalist then provided the defense investigator with the full name of the covert CIA employee;

• Kiriakou disclosed or confirmed to Journalists A, B and C the then-classified information that Officer B participated in the Abu Zubaydah operation and provided two of those journalists with contact information for Officer B, including a personal email address. One of the journalists subsequently provided the defense investigator with Officer B’s home telephone number, which the investigator used to identify and photograph Officer B; and

• Kiriakou lied to the CIA regarding the existence and use of a classified technique, referred to as a “magic box,” in an unsuccessful effort to trick the CIA into allowing him to publish information about the classified technique in a book.

Upon joining the CIA in 1990 and on multiple occasions in following years, Kiriakou signed secrecy and non-disclosure agreements not to disclose classified information to unauthorized individuals.

Regarding Covert Officer A, the affidavit details a series of email communications between Kiriakou and Journalist A in July and August 2008. In an exchange of emails on July 11, 2008, Kiriakou allegedly illegally confirmed for Journalist A that Covert Officer A, whose first name only was exchanged at that point, was “the team leader on [specific operation].” On Aug. 18, 2008, Journalist A sent Kiriakou an email asking if Kiriakou could pick out Covert Officer A’s last name from a list of names Journalist A provided in the email. On Aug. 19, 2008, Kiriakou allegedly passed the last name of Covert Officer A to Journalist A by email, stating “It came to me last night.” Covert Officer A’s last name had not been on the list provided by Journalist A. Later that same day, approximately two hours later, Journalist A sent an email to the defense investigator that contained Covert Officer A’s full name. Neither Journalist A, nor any other journalist to the government’s knowledge, has published the name of Covert Officer A.

At the time of Kiriakou’s allegedly unauthorized disclosures to Journalist A, the identification of Covert Officer A as “the team leader on [specific operation]” was classified at the Top Secret/Sensitive Compartmented Information (SCI) level because it revealed both Covert Officer A’s identity and his association with the CIA’s Rendition, Detention and Interrogation (RDI) Program relating to the capture, detention and questioning of terrorism subjects. The defense investigator was able to identify Covert Officer A only after receiving the email from Journalist A, and both Covert Officer A’s name and association with the RDI Program were included in the January 2009 classified defense filing. The defense investigator told the government that he understood from the circumstances that Covert Officer A was a covert employee and, accordingly, did not take his photograph. No photograph of Covert Officer A was recovered from the detainees at Guantanamo.

In a recorded interview last Thursday, FBI agents told Kiriakou that Covert Officer A’s name was included in the classified defense filing. The affidavit states Kiriakou said, among other things, “How the heck did they get him? . . . [First name of Covert Officer A] was always undercover. His entire career was undercover.” Kiriakou further stated that he never provided Covert Officer A’s name or any other information about Covert Officer A to any journalist and stated “Once they get the names, I mean this is scary.”

Regarding Officer B, the affidavit states that he worked overseas with Kiriakou on an operation to locate and capture Abu Zubaydah, and Officer B’s association with the RDI Program and the Abu Zubaydah operation in particular were classified until that information was recently declassified to allow the prosecution of Kiriakou to proceed.

In June 2008, The New York Times published an article by Journalist B entitled “Inside the Interrogation of a 9/11 Mastermind,” which publicly identified Officer B and reported his alleged role in the capture and questioning of Abu Zubaydah – facts which were then classified. The article attributed other information to Kiriakou as a source, but did not identify the source(s) who disclosed or confirmed Officer B’s identity. The charges allege that at various times prior to publication of the article, Kiriakou provided Journalist B with personal information regarding Officer B, knowing that Journalist B was seeking to identify and locate Officer B. In doing so, Kiriakou allegedly confirmed classified information that Officer B was involved in the Abu Zubaydah operation. For example, Kiriakou allegedly emailed Officer B’s phone number and personal email address to Journalist B, who attempted to contact Officer B via his personal email in April and May 2008. Officer B had provided his personal email address to Kiriakou, but not to Journalist B or any other journalist. Subsequently, Kiriakou allegedly revealed classified information by confirming for Journalist B additional information that an individual with Officer B’s name, who was associated with particular contact information that Journalist B had found on a website, was located in Pakistan in March 2002, which was where and when the Abu Zubaydah operation took place.

After The New York Times article was published, Kiriakou sent several emails denying that he was the source for information regarding Officer B, while, at the same time, allegedly lying about the number and nature of his contacts with Journalist B. For example, in an email dated June 30, 2008, Kiriakou told Officer B that Kiriakou had spoken to the newspaper’s ombudsman after the article was published and said that the use of Officer B’s name was “despicable and unnecessary” and could put Officer B in danger. Kiriakou also denied that he had cooperated with the article and claimed that he had declined to talk to Journalist B, except to say that he believed the article absolutely should not mention Officer B’s name. “[W]hile it might not be illegal to name you, it would certainly be immoral,” Kiriakou wrote to Officer B, according to the affidavit.

From at least November 2007 through November 2008, Kiriakou allegedly provided Journalist A with Officer B’s personal contact information and disclosed to Journalist A classified information revealing Officer B’s association with the RDI Program. Just as Journalist A had disclosed to the defense investigator classified information that Kiriakou allegedly imparted about Covert Officer A, Journalist A, in turn, provided the defense investigator information that Kiriakou had disclosed about Officer B. For example, in an email dated April 10, 2008, Journalist A provided the defense investigator with Officer B’s home phone number, which, in light of Officer B’s common surname, allowed the investigator to quickly and accurately identify Officer B and photograph him. Both Officer B’s name and his association with the RDI Program were included in the January 2009 classified defense filing, and four photographs of Officer B were among the photos recovered at Guantanamo.

In the same recorded interview with FBI agents last week, Kiriakou said he “absolutely” considered Officer B’s association with the Abu Zubaydah operation classified, the affidavit states. Kiriakou also denied providing any contact information for Officer B or Officer B’s association with the Abu Zubaydah operation to Journalists A and B prior to publication of the June 2008 New York Times article. When specifically asked whether he had anything to do with providing Officer B’s name or other information about Officer B to Journalist B prior to the article, Kiriakou stated “Heavens no.”

As background, the affidavit states that sometime prior to May 22, 2007, Kiriakou disclosed to Journalist C classified information regarding Officer B’s association with Abu Zubaydah operation, apparently while collaborating on a preliminary book proposal. A footnote states that Journalist C is not the coauthor of the book Kiriakou eventually published.

Prior to publication of his book, The Reluctant Spy: My Secret Life in the CIA’s War on Terror, Kiriakou submitted a draft manuscript in July 2008 to the CIA’s Publication Review Board (PRB). In an attempt to trick the CIA into allowing him to publish information regarding a classified investigative technique, Kiriakou allegedly lied to the PRB by falsely claiming that the technique was fictional and that he had never heard of it before. In fact, according to a transcript of a recorded interview conducted in August 2007 to assist Kiriakou’s coauthor in drafting the book, Kiriakou described the technique, which he referred to as the “magic box,” and told his coauthor that the CIA had used the technique in the Abu Zubaydah operation. The technique was also disclosed in the June 2008 New York Times article and referred to as a “magic box.”

In his submission letter to the PRB, Kiriakou flagged the reference to a device called a “magic box,” stating he had read about it in the newspaper article but added that the information was “clearly fabricated,” as he was unaware of and had used no such device. The affidavit contains the contents of an August 2008 email that Kiriakou sent his coauthor admitting that he lied to the PRB in an attempt to include classified information in the book. The PRB subsequently informed Kiriakou that the draft manuscript contained classified information that he could not use, and information regarding the technique that Kiriakou included in the manuscript remained classified until it was recently declassified to allow Kiriakou’s prosecution to proceed.

Upon conviction, the count charging illegal disclosure of Covert Officer A’s identity to a person not authorized to receive classified information carries a maximum penalty of five years in prison, which must be imposed consecutively to any other prison term; the two counts charging violations of the Espionage Act each carry a maximum term of 10 years in prison; and making false statements carries a maximum prison term of five years. Each count carries a maximum fine of $250,000.

A complaint contains only allegations and is not evidence of guilt. The defendant is presumed innocent and is entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.

The government is being represented in court by Assistant U.S. Attorneys Iris Lan (Southern District of New York) and Mark E. Schneider (Northern District of Illinois), and Justice Department trial attorney Ryan Fayhee of the Counterespionage Section of the National Security Division. Assistant U.S. Attorney Lisa Owings (Eastern District of Virginia) will assist in the matter under local court rules.

Complaint Criminal and Affidavit – SIGNED.pdf


nationalsecuritylaw United States v. Mahamud (D. Minn. Jan. 18, 2012) (denying FISA suppression motion)

January 20, 2012

* United States v. Mahamud (D. Minn. Jan. 18, 2012) (denying FISA suppression motion)

In a case involving the prosecution of a man linked to al Shabaab (on charges go conspiring to provide and actually providing material support to that group), Chief Judge Davis has issued a brief opinion denying the defendant’s motion to suppress the fruits of electronic surveillance and physical searches conducted pursuant to FISA. Nothing novel or unusual here, but I am passing the opinion along for teachers and students who might find it instructive that the opinion contains a pithy rundown of the issues and standards and such matters arise.

United States District Court,

D. Minnesota.

UNITED STATES of America, Plaintiff,

v.

Ahmed Hussein MAHAMUD, Defendant.

Criminal No. 11–191.

Jan. 18, 2012.

John Docherty and Charles Kovats, Assistant United States Attorneys and William M. Narus, U.S. Department of Justice, for Plaintiff.

Rick E. Mattox, Mattox Law Office, for Defendant.

MEMORANDUM OPINION AND ORDER

MICHAEL J. DAVIS, Chief Judge.

Defendant has been charged by Indictment with conspiracy to provide, and providing, material support to terrorists and conspiracy to provide, and providing, material support to a Foreign Terrorist Organization (“FTO”). The government has provided notice to the Court and to the Defendant pursuant to 50 U.S.C § 1806(c) and 1825(d) that it intends to introduce at trial evidence obtained and derived from electronic surveillance, 50 U.S.C. § 18011812, and evidence obtained from physical searches. 50 U.S.C. § 18211829.

Defendant has filed a motion to suppress any evidence illegally obtained by wire surveillance, based on intercepted electronic communications obtained under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., and has moved for disclosure of all evidence related to the electronic surveillance. (Doc. Nos. 39 and 40.)In response, the government has filed a classified, as well as a redacted, unclassified memorandum opposing the motions. The Defendant’s motions have triggered this Court’s review of the FISA applications and orders pursuant to 50 U.S.C. § 1806(f) to determine whether the surveillance was lawfully authorized and conducted.

I. Foreign Intelligence Surveillance Act

FISA governs electronic surveillance and physical searches within the United States for foreign intelligence purposes. Each application for a warrant pursuant to FISA shall include the following:

(1) the identity of the Federal officer making the application;

(2) the identity, if known, or a description of the specific target of the electronic surveillance;

(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

(4) a statement of the proposed minimization procedures;

(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance …

50 U.S.C. § 1804(a).

The application should also include a certification from the appropriate official

(A) that the certifying official deems the information sought to be foreign intelligence information;

(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;

(C) that such information cannot reasonably be obtained by normal investigative techniques;

(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and

(E) including a statement of the basis for the certification that—

(I) the information sought is the type of foreign intelligence information designated; and

(ii) such information cannot reasonably be obtained by normal investigative techniques …

Id. § 1804(6).

Finally, the application should include a summary of the surveillance to be conducted and whether a physical entry is required, whether “previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application” and the time period for which surveillance is needed. Id. § 1804(a)(7)-(9).

When reviewing a request for a warrant, the FISA Court must find probable cause to believe that the target of the surveillance is a ‘foreign power or an agent of a foreign power’ and that the place or facilities to be surveilled are ‘being used, or … about to be used, by a foreign power or an agent of a foreign power.’“ United States v. AbuJihaad, 630 F.3d 102,117–18 (2d Cir.2010) (quoting 50 U.S.C. § 1805(a)(2)).

FISA further provides that the target of surveillance “may move to suppress the evidence on the grounds that [it] was unlawfully acquired or the surveillance was not made inconformity with [a FISA] order …”50 U.S.C. § 1806(e). Where such a motion is filed, or a motion to discover or obtain FISA applications or orders is made, the court must, upon the filing of an affidavit from the Attorney General that disclosure of such material or an adversary hearing would harm national security,

review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.

Section 1806(f).

II. Motion to Disclose

Defendant moves for an Order directing the government to disclose and to certify the extent of electronic surveillance used by the government in any phase of its investigation of him. Disclosure of such materials is warranted “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”50 U.S.C. § 1806(f). Where the court “determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.”Id. (citing 50 U.S.C. § 1806(g)). Disclosure is thus “the exception and ex parte, in camera determination is the rule. AbuJihaad, 630 F.3d at 129 (internal citations omitted).

In this case, Attorney General Eric Holder has filed an affidavit dated January 5 2012, declaring that disclosure of classified material or an adversary proceeding concerning such material would harm national security. (Government’s Memorandum in Opposition, Exhibit 1) The Court has thus conducted an ex parte, in camera review of the applicable FISA applications, orders and related materials as provided in § 1806(f).

In determining whether disclosure is necessary, the Court should consider whether, after its initial review, any irregularities are revealed, such as whether: the materials evidence a possible misrepresentation of fact; the persons to be surveilled are not clearly identified; or the surveillance records include a significant amount of nonforeign intelligence information, indicating a possible issue with the minimization standards utilized. United States v. Warsame, 547 F.Supp.2d 982, 987 (D.Minn.2008) (quoting United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir.1982)). Based on its ex parte, in camera review, no such irregularities were revealed. The Court thus finds that disclosure of the materials is not necessary to make an accurate determination of the legality of the surveillance.

III. Motion to Suppress

Defendant has moved to suppress any evidence obtained directly or indirectly from the interception of electronic communications on the grounds that such interceptions were obtained in violation of his rights under the Fourth Amendment and his legal rights under 18 U.S.C. § 2510 and 50 U.S.C. § 1806(e). Defendant furthers argue that to the extent the government offers information to the Court in camera on the legal authority to intercept communications in this case, the Defendant objects that such proceedings deprive him of his rights to due process under the Fifth Amendment.

A. Statutory Requirements

When reviewing FISA applications and orders to determine compliance with FISA procedures, the Court must keep in mind that “FISA warrants are subject to ‘minimal scrutiny by the courts,’ both upon initial presentation and subsequent challenge.”AbuJihaad, 630 F.3d at 130 (quoting United States v. Duggan, 743 F.2d 59, 77 (2d Cir.1984)). When reviewing a FISA warrant, the FISA Court considers whether the application makes the proper probable cause showing that the target of the warrant is a foreign power or an agent of a foreign power and that the facilities or places to be searched or surveilled are being used by the foreign power/agent, whether the application is otherwise proper, and when the target is a United States citizen, whether the application’s certifications are not clearly erroneous. Id. When reviewing a FISA Court Order, the reviewing court must presume as valid “ ‘the representations and certifications submitted in support of an application for FISA surveillance …’“ absent a showing sufficient to trigger a Franks hearing FN1.”Id.

FN1. In Franks v. Delaware, the United States Supreme Court held that to be entitled to a hearing to challenge the veracity of a warrant affidavit, a defendant must first make a showing that the affidavit contains deliberate falsehoods or statements made with a reckless disregard of the truth, and an accompanying offer of proof. 438 U.S. 154, 171 (1978).

With this standard in mind, the Court has thoroughly reviewed the FISA applications, orders and related materials, as well as the government’s classified memorandum in opposition to the motions to suppress and for disclosure. As discussed below, the Court finds that both the applications and orders complied with all requirements set forth in 50 U.S.C. § 1805(a) and there has been no showing to trigger a Franks hearing.

1. Certification

The FISA applications and orders in this case satisfy the statutory requirements set forth in 50 U.S.C. §§ 1804(a) and 1805(a). The applications were made by a federal officer and were approved by the Attorney General or his authorized designate. Further, the applications contain the required statements and certifications. Also, no showing has been made which provides a basis to find that any of the facts contained in the FISA application are false or were made with reckless disregard for the truth.

2. Minimization Procedures

The minimization procedures contained in the FISA applications must comply with Section 1801(h), which provides:

“Minimization procedures”, with respect to electronic surveillance, means—

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

After carefully reviewing the minimization procedures described in the FISA applications, the Court finds that such procedures comply with the statutory requirements set forth in Section 1801(h). The Court further finds that the government followed these procedures to appropriately minimize the information it obtained.

3. Probable Cause

In reviewing a FISA application, the FISA Court is to determine whether the application establishes probable cause that “A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.”50 U.S.C. § 1805(a)(2).

In making the probable cause determination, the FISA Court may also “consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target .”Id. § 1805(b). “Foreign power” is not limited to a foreign government, it also includes a “group engaged in international terrorism or activities in preparation therefor.”§§ 1801(a) and 1821(1). Further, an “agent of a foreign power” is one who “knowingly engages in sabotage or international terrorism, or activities in preparation therefor, for or on behalf of a foreign power” and “anyone who knowingly aids, abets, or conspires with any person to engage in the activities described in the Act.”Id.§§ 1801(b)(2) and 1821(1). Finally, “international terrorism” is defined as including conduct that “involve[s] a violent act[ ] or act[ ] dangerous to human life that are a violation of the criminal laws of the United States” that appears intended to “intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnaping; and occurs totally outside the United States or transcend national boundaries.”Id.§§ 1801(c) and 1821(1).

There is no agreement among the federal courts as to whether the probable cause determination is made de novo or if a deferential standard is applied. See AbuJihaad, 630 F.3d at 130; Warsame, 547 F.Supp.2d at 990 (court reviewed probable cause determination de novo, given that the Court’s review is ex parte ). Even applying a de novo review, however, the Court finds that there was sufficient probable cause set forth in the applications and related materials that Defendant was an agent of a foreign power, al-Shabaab, and that the places to be searched or to be surveilled were being used by Defendant.

D. Timing

Finally, Defendant raises concern that the government did not follow the time limits of surveillance. Based on its ex parte, in camera review, the Court finds that the government complied with the time limits of surveillance set forth in the applicable orders.

Based on the above, the Court finds that Defendant’s motion to suppress any evidence obtained directly or indirectly from the interception of electronic communications on the grounds that the FISA applications and orders did not meet the statutory requirements of FISA must be denied.

B. Fourth Amendment

Defendant argues that any evidence obtained directly or indirectly from the interception of electronic communications should be suppressed as such evidence was obtained in violation of his Fourth Amendment rights. To the extent that Defendant’s motion is based on the arguably lower probable cause standard applied to FISA applications, many courts, including the Eighth Circuit, have found that the probable cause standard set forth in FISA does not violate the Fourth Amendment. See United States v. Duka, ––– F.3d ––––, 2011 WL 6794022, at *4 (3d Cir. Dec. 28, 2011) (rejecting defendant’s constitutional challenges to FISA under the Fourth Amendment); AbuJihaad, 630 F.3d at 120; United States v. Isa, 923 F.2d 1300,1304 (8th Cir.1991); Warsame, 547 F.Supp.2d at 993–94. Accordingly, to the extent the Defendant’s constitutional challenge is based on the probable cause standard set forth in FISA, the motion must be denied.

To the extent that Defendant’s motion is based on the argument that the “significant purpose” test violates the Fourth Amendment because there is no requirement of a probable cause showing that a crime is being committed, this argument has also been rejected by a number of courts. See, e.g., Dukas, 2011 WL 6794022, at *10;AbuJihaad, 630 F.3d at 127; Warsame, 547 F.Supp.2d at 995 (noting that courts addressing this issue, save one, have upheld FISA as consistent with the requirements of the Fourth Amendment). Based on the applicable law, the Court is satisfied that FISA’s significant purpose requirement is consistent with the Fourth Amendment’s protections against unreasonable searches and seizures.

C. Fifth Amendment

Defendant argues that to the extent the government intends to offer information to the Court in camera on their legal authority to intercept his communications, such procedure deprives him of his right to due process in violation of the Fifth Amendment. This argument has also been rejected on many occasions, on the basis that the ex parte, in camera review satisfies due process. See, e.g., Abu–Jihaad, 630 F.3d 129 (finding that the court’s ex parte, in camera review permitted it to assess the legality of the surveillance and the requirements of due process did not counsel otherwise); United States v. Damrah, 412 F.3d 618, 624; United States v. Ott, 827 F.2d 473, 476–77 (9th Cir.1987); Warsame, 547 F.Supp.2d at 988–89. This Court is also satisfied that its review of the FISA materials permitted the Court to adequately assess the legality of the surveillance, and that due process did not counsel otherwise. Accordingly, the motion to suppress based on a violation of the Fifth Amendment will be denied.

IV. Motion for Discovery

Finally, Defendant seeks to inspect the facility where the original tapes or data was stored, and to inspect the sealing orders and logs for such data. Defendant does not provide any authority to support these requests. As discussed previously in this Memorandum Opinion, FISA prohibits disclosure of material obtained or derived thereunder, unless constitutionally required by due process or Brady v. Maryland.

In Isa, the Eighth Circuit rejected the argument that evidence obtained through FISA warrants should have been suppressed because the government did not provide minimization logs of the entire surveillance. 923 F.2d at 1305–06. The court found that FISA did “not require that a target be provided the minimization logs of the entire surveillance. Indeed, specific provisions of the Act suggest the contrary.” Id. at 1306.Accordingly, this motion will be denied.

IT IS HEREBY ORDERED:

1. Defendant’s Motion for Discovery and Inspection of Products and Records of Electronic Surveillance [Doc. No. 39] is DENIED to the extent the motion seeks classified material;

2. Defendant’s Motion to Suppress Evidence Obtained by Wire Surveillance [Doc. No. 40] is DENIED.


nationalsecuritylaw Harvard National Security Journal Calls for Responses to Paper on Cyber Threats

January 18, 2012

From our friends at the Harvard National Security Journal:

Jerry Brito & Tate Watkins have published an article in the Harvard National Security Journal asking for "a better justification for the increased resources devoted to cyber threats" (see below for a full summary and a link to the complete article). The National Security Journal would like to publish short pieces (1,000-5,000 words) providing such a justification. Please e-mail prospective pieces to hlsnsj.online.submissions.

Loving the Cyber Bomb? The Dangers of Threat Inflation in Cybersecurity Policy
By Jerry Brito & Tate Watkins

There has been no shortage of attention devoted to cybersecurity, with a wide range of experts warning of potential doomsday scenarios should the government not act to better secure the Internet. But this is not the first time we have been warned of impending dangers; indeed, there are many parallels between present portrayals of cyberthreats and the portrayal of Iraq prior to 2003, or the perceived bomber gap in the late 1950s. This Article asks for a better justification for the increased resources devoted to cyber threats. It examines the claims made by those calling for increased attention to cybersecurity, and notes the interests of a military-industrial complex in playing up fears of a “cyber Katrina.” Cybersecurity is undoubtedly an important policy issue. But with a dearth of information regarding the true nature of the threat, it is quite difficult to determine whether certain government policies are warranted—or if this merely represents the latest iteration of threat inflation benefitting private and parochial political interests.


nationalsecuritylaw upcoming event: UT Law conference on Civil Rights Litigation Since 9/11 (register by Jan. 27)

January 17, 2012

On behalf of my colleague Prof. Jennifer Laurin, I’m very happy to draw attention to an event coming up here in Austin:

Register Now for Barriers and Innovations in Civil Rights Litigation.pdf


nationalsecuritylaw updated time for event announced last week: Teleforum with Greg McNeal on Collateral Damage in Combat Operations — Now at 3:00 p.m. eastern

January 17, 2012

Note the updated time – this event now will take place at 3pm today (eastern)

Description: The Federalist Society
Collateral Damage in Combat Operations
3:00 p.m. ET — TODAY!
A Teleforum Sponsored by the International & National Security Law Practice Group
Featuring

Description: http://law.pepperdine.edu/images/faculty/gmcneal.jpg
Professor Gregory S. McNeal*

Pepperdine University School of Law

Tuesday, January 17, 2012

at 3:00 p.m. (EST)

888-752-3232

No registration is necessary.

To participate in this practice group Teleforum, please dial 888-752-3232
on Tuesday at 3:00 p.m. (EST) via telephone.

Professor Gregory McNeal will discuss how the U.S. military implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians during combat operations. He will describe the process the U.S. military follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most pre-planned military operations involving air-to-surface weapons and artillery.

In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage. These commentators skip an important aspect of actual practice – the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation.

You can read Professor McNeal’s recent paper on this topic by clicking here.

*Professor McNeal is a national security specialist focusing on the institutions and challenges associated with global security, with substantive expertise in national security law and policy, criminal law, and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism program for the U.S. Department of Justice, and served as an advisor to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba. His legal scholarship has been published by The Northwestern University Law Review, The Richmond Law Review, The DePaul Law Review, and various top ranked international law and policy journals. His co-edited book Saddam On Trial: Understanding and Debating the Iraqi High Tribunal was selected as one of three finalists for L’Association Internationale de Droit Penal’s Book of the Year Award.

During law school Professor McNeal was selected as executive editor for the Harvard Journal of Law and Public Policy (Symposium Edition). His doctoral work focuses on public policy and administration and organizational theory in a global policy context. Professor McNeal has testified before Congress, consulted with Congressional committees, the Iraqi High Tribunal, and Fortune 500 companies on matters related to counterterrorism, international criminal law, and national security. Before becoming an attorney he served as an officer in the United States Army.

He is the editor in chief of The National Security Law Report, the flagship journal of the American Bar Association’s Standing Committee on Law and National Security. He also serves as a member of the Executive Committee of the AALS Section on National Security Law, and Vice President of the American National Section of the International Association of Penal Law. His popular writing has appeared in publications such as The New York Times, The Washington Times, and The Baltimore Sun. He has appeared on Fox News Channel, NPR, BBC, C-SPAN, CNN and other national media outlets as an expert commentator on national security and international law, and is a frequent participant in academic symposia regarding national security. He has been quoted by Time Magazine, The New York Times, and other publications. He blogs at The Law and Terrorism Blog and maintains an SSRN account.

Description: https://imgssl.constantcontact.com/letters/images/1101093164665/lawyer-col-l.gif Description: https://imgssl.constantcontact.com/letters/images/1101093164665/lawyer-col-t.gif Description: https://imgssl.constantcontact.com/letters/images/1101093164665/lawyer-col-r.gif
**All calls listed are EST.

No registration is necessary.

Dial in number is 888-752-3232.

The Federalist Society

1015 18th Street, NW, Suite 425

Washington, District of Columbia 20036

202-822-8138 www.fed-soc.org

To receive updates on topics pertaining to other areas of law, please click here.
If you no longer wish to receive this type of e-mail from the Federalist Society, you can change your subscription settings by clicking on "Update Profile/Email Address" listed below. Please do not reply to this email.
Description: https://imgssl.constantcontact.com/letters/images/1101093164665/lawyer-orn.gif

nationalsecuritylaw Othman (Abu Qatada) v. United Kingdom (E. Ct. Hum. Rts Jan. 17, 2012)

January 17, 2012

* Othman (Abu Qatada) v. United Kingdom (E. Ct. Hum. Rts Jan. 17, 2012)

The European Court of Human Rights has issued a ruling to the effect that the UK may not deport Omar Othman (better known as Abu Qatada, an extremist preacher long linked to al Qaeda) to Jordan, where he would face criminal charges. In brief, the court reached the following conclusions:

1) The proposed deportation did not present an undue risk of torture (note that paragraphs 186 -189 provide a very interesting discussion of diplomatic assurances in this context)

2) The proposed deportation was not problematic in that the UK had relied on ex parte evidence in the course of assessing the diplomatic assurances Jordan had provided

3) The proposed deportation was not problematic in that Othman was at risk of up to 50 days of incommunicado detention

4) The proposed detention WAS problematic, in contrast, in that there was a “real risk” that evidence obtained via torture (of others) would be used and admitted against Othman. The full text of the Court’s merits ruling on this last point is reprinted below:

C. Merits

1. General principles

a. The “flagrant denial of justice” test

258. It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161 and has been subsequently confirmed by the Court in a number of cases (see, inter alia, Mamatkulov and Askarov, cited above, §§ 90 and 91; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010-…).

259. In the Court’s case-law, the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006-II; Stoichkov, cited above, § 56, Drozd and Janousek cited above, § 110). Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:

– conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge (Einhorn, cited above, § 33; Sejdovic, cited above, § 84; Stoichkov, cited above, § 56);

– a trial which is summary in nature and conducted with a total disregard for the rights of the defence (Bader and Kanbor, cited above, § 47);

– detention without any access to an independent and impartial tribunal to have the legality the detention reviewed (Al-Moayad, cited above, § 101);

– deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country (ibid.).

260. It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court’s view that “flagrant denial of justice” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

261. In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see, mutatis mutandis, Saadi v. Italy, cited above § 129).

262. Finally, given the facts of the present case, the Court does not consider it necessary to determine whether a flagrant denial of justice only arises when the trial in question would have serious consequences for the applicant. It is common ground in the present case that the sentences which have already been passed on the applicant in absentia, and to which he would be exposed on any retrial, are substantial terms of imprisonment.

b. Does the admission of evidence obtained by torture amount to a flagrant denial of justice?

263. The Court agrees with the Court of Appeal that the central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial. Accordingly, it is appropriate to consider at the outset whether the use at trial of evidence obtained by torture would amount to a flagrant denial of justice. In common with the Court of Appeal (see paragraph 51 above), the Court considers that it would.

264. International law, like the common law before it, has declared its unequivocal opposition to the admission of torture evidence. There are powerful legal and moral reasons why it has done so.

It is true, as Lord Phillips observed in the House of Lords’ judgment in the present case, that one of the reasons for the prohibition is that States must stand firm against torture by excluding the evidence it produces. Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence obtained by torture would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.

There are, however, further and equally compelling reasons for the exclusion of torture evidence. As Lord Bingham observed in A and others no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” The Court agrees with these reasons: it has already found that statements obtained in violation of Article 3 are intrinsically unreliable (Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture.

More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.

265. These reasons underscore the primacy given to the prohibition on torture evidence in the Convention system and international law. For the Convention system, in its recent judgment in Gäfgen v. Germany [GC], no. 22978/05, §§ 165-167, ECHR 2010-…, the Court reiterated that particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. It observed:

“The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction.

Accordingly, the Court has found in respect of confessions, as such, that the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. This finding applied irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction.

As to the use at the trial of real evidence obtained as a direct result of ill-treatment in breach of Article 3, the Court has considered that incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value (references omitted)”.

Gäfgen reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms what the Court of Appeal in the present case had already appreciated: in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental. Gäfgen also confirms the Court of Appeal’s view that there is a crucial difference between a breach of Article 6 because of the admission of torture evidence and breaches of Article 6 that are based simply on defects in the trial process or in the composition of the trial court (see paragraph 45–49 of the Court of Appeal’s judgment, quoted at paragraph 51 above).

266. Strong support for that view is found in international law. Few international norms relating to the right to a trial are more fundamental than the exclusion of evidence obtained by torture. There are few international treaties which command as widespread support as UNCAT. One hundred and forty-nine States are party to its provisions, including all Member States of the Council of Europe (see paragraph 125 above). UNCAT reflects the clear will of the international community to further entrench the ius cogens prohibition on torture by taking a series of measures to eradicate torture and remove all incentive for its practice. Foremost among UNCAT’s provisions is Article 15, which prohibits, in near absolute terms, the admission of torture evidence. It imposes a clear obligation on States. As the United Nations Committee Against Torture has made clear, Article 15 is broad in scope. It has been interpreted as applying to any proceedings, including, for instance, extradition proceedings (P.E. v. France; G.K. v. Switzerland; and Irastorza Dorronsoro: see paragraphs 130 and 132 above). P.E. and G.K. also show that Article 15 applies to “any statement” which is established to have been made as a result of torture, not only those made by the accused (see also, in this respect Harutyunyan v. Armenia, no. 36549/03, § 59, ECHR 2007-VIII and Mthembu v. The State, case no. 379/2007, [2008] ZASCA 51, quoted in Gäfgen, cited above, § 74). Indeed, the only exception to the prohibition that Article 15 allows is in proceedings against a person accused of torture.

267. For the foregoing reasons, the Court considers that the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial. The Court does not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture. However, on the facts of the present case (see paragraphs 269–271 below), it is not necessary to decide this question.

2. The applicant’s case

268. The applicant has alleged that his retrial would amount to a flagrant denial of justice because of a number of factors, including the absence of a lawyer during interrogation, his notoriety and the composition of the State Security Court (see paragraph 248 above). However, as the Court has observed, the central issue in the case is the admission of torture evidence. Accordingly, it will first examine this complaint.

a. Evidence obtained by torture

269. The incriminating statements against the applicant were made by Al-Hamasher in the Reform and Challenge Trial and Abu Hawsher in the millennium conspiracy trial (see paragraphs 9 –20 above). SIAC found that there was at least a very real risk that these incriminating statements were obtained as a result of treatment by the GID which breached Article 3; it may or may not have amounted to torture (see paragraph 420 of its determination, quoted at paragraph 45 above).

270. It is unclear from its determination why SIAC felt unable to reach a clear conclusion as to whether the ill-treatment amounted to torture. The precise allegation made by Abu Hawsher is that he was beaten on the soles of his feet to the stage where the skin fell off every time he bathed (see paragraph 103 above). The scarring on Al-Hamasher is consistent with the same form of ill-treatment (see paragraph 102 above). The purposes of that ill-treatment, if it occurred, could only have been to obtain information or confessions from them. Moreover, beating on the soles of the feet, more commonly known as bastinado, falanga or falaka, is a practice which has been considered by the Court. Its infliction causes severe pain and suffering to the victim and, when its purpose has been to punish or to obtain a confession, the Court has had no hesitation in characterising it as torture (see, among many authorities, Salman v. Turkey [GC], no. 21986/93, §§ 114 and 115, ECHR 2000-VII; Valeriu and Nicolae Roşca v. Moldova, no. 41704/02, § 64, 20 October 2009 and further references therein; Diri v. Turkey, no. 68351/01, §§ 42–46, 31 July 2007; Mammadov v. Azerbaijan, no. 34445/04, §§ 68 and 69, 11 January 2007). Consequently, there is every reason to conclude that, if Abu Hawsher and Al-Hamasher were ill-treated in the way they allege, their ill-treatment amounted to torture.

271. This conclusion means the remaining two issues which the Court must consider are: (i) whether a real risk of the admission of torture evidence is sufficient; and (ii) if so, whether a flagrant denial of justice would arise in this case.

i. Does a real risk of the admission of torture evidence suffice?

272. In determining this question, the Court would begin by noting that the evidence before it that Abu Hawsher and Al-Hamasher were tortured is even more compelling than at the time of SIAC’s determination. The report of Mr Al-Khalili and Mr Najdawi is, for the most part, balanced and objective. It frankly assesses the strengths and weaknesses of the Jordanian State Security Court system and recognises the GID’s attempts to extract confessions from suspects. However, the main weakness in the report is that its authors do not examine for themselves the allegations of torture which were made by the applicant’s co-defendants; the report merely records the conclusions of the State Security Court at each trial that the co-defendants were not tortured. Ms Refahi, on the other hand, travelled twice to Jordan to interview the lawyers and defendants at the original trials. Her two statements give detailed accounts of her interviews and record, in clear and specific terms, the allegations of torture made by the defendants. There is every reason to prefer her evidence on this point to the more generalised conclusions of Mr Al-Khalili and Mr Najdawi. Furthermore, in the millennium conspiracy trial, some corroboration for Abu Hawsher’s allegations must be found in Amnesty International’s report of 2006 which sets out its findings that four of the defendants, including Abu Hawsher were tortured. The allegations of ill-treatment of one co-defendant, Ra-ed Hijazi are particularly convincing, not least because several witnesses were reported to have seen him propped up by two guards at the crime scene reconstruction and, as recorded in Ms Peirce’s statement, his treatment appears to have been the subject of a diplomatic protest by the United States (see paragraphs 103 and 114 above). Finally, some reliance must be placed on the fact that torture is widespread and routine in Jordan. If anything, it was worse when the applicant’s co-defendants were detained and interrogated. The systemic nature of torture by the GID (both then and now) can only provide further corroboration for the specific and detailed allegations which were made by Abu Hawsher and Al-Hamasher.

273. However, even accepting that there is still only a real risk that the evidence against the applicant was obtained by torture, for the following reasons, the Court considers it would be unfair to impose any higher burden of proof on him.

274. First, the Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A. and Others (no. 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A and others (no. 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A and others (no. 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings (see, section 76(2) of the Police and Criminal Evidence Act 1984 and R. v Mushtaq, paragraph 138 above).

275. Second, the Court does not consider that the Canadian and German case-law, which has been submitted by the Government (see paragraphs 133, 135, 139 and 140, and 153 above), provides any support for their position. In Singh, the parties agreed that the allegations had to be proved on a balance of probabilities; the standard of proof was not the subject of argument in that case. Mahjoub, a national security case involving material not disclosed to the appellant, followed the approach taken by the House of Lords in A and others (no. 2), an approach which the Court has found to be inappropriate in the present case. In re El Motassadeq, the Hamburg Court of Appeal was only able to consider reports of a general nature alleging the United States authorities had tortured terrorist suspects and, in any event, drew “neither incriminating nor exonerating conclusions” from evidence in question (see El Motassadeq v. Germany, cited above). In addition, it does not appear that the issue of the standard of proof which was applied by the Hamburg Court of Appeal was pursued on appeal to the Federal Court of Justice or Constitutional Court and it did not form part of El Motassadeq’s complaints to this Court. Finally, it is clear from the Düsseldorf Court of Appeal’s reasoning that it did not apply a balance of probabilities test to the requested person’s allegations. Instead, it sufficed that there was a real risk (konkrete Gefahr) that Turkey would not respect Article 15 of UNCAT; that there was reasonable evidence (begründete Anhaltspunkte) that the statements made by the co-defendants had been obtained by torture; and that there was a risk, substantiated by concrete evidence (durch konkrete Indizien belegte Gefahr), that the statements taken from the co-accused might be used in proceedings against the requested person in Turkey.

276. Third, and most importantly, due regard must be had to the special difficulties in proving allegations of torture. Torture is uniquely evil both for its barbarity and its corrupting effect on the criminal process. It is practiced in secret, often by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim. All too frequently, those who are charged with ensuring that torture does not occur – courts, prosecutors and medical personnel – are complicit in its concealment. In a criminal justice system where the courts are independent of the executive, where cases are prosecuted impartially, and where allegations of torture are conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which is complicit in the very practices which it exists to prevent, such a standard of proof is wholly inappropriate.

277. The Jordanian State Security Court system is a case in point. Not only is torture widespread in Jordan, so too is the use of torture evidence by its courts. In its conclusions on Article 15 of UNCAT, the Committee Against Torture expressed its concern at reports that the use of forced confessions in courts was widespread (see paragraph 107 above). The Special Rapporteur has described a system where the “presumption of innocence is illusory” and “primacy is placed on obtaining confessions” (see paragraph 110 above). The reports of Amnesty International and Human Rights Watch support this view. Amnesty International has considered the State Security Court to be “largely supine” in the face of torture allegations, despite, in the ten years prior to 2005, one hundred defendants alleging before the State Security Court that they had been tortured into making confessions and similar allegations being made in fourteen such cases in 2005 alone (see paragraph 113 above). Human Rights Watch’s 2006 Report depicts a system in which detainees are shuttled back and forth between GID officials and the Public Prosecutor until confessions are obtained in an acceptable form (see paragraph 116 above). Finally, the NCHR has, in successive reports, expressed its own concerns about the manner in which statements obtained by coercion become evidence in Jordanian courts (see paragraphs 121 and 122 above).

278. The Court recognises that Jordanian law provides a number of guarantees to defendants in State Security Court cases. The use of evidence obtained by torture is prohibited. The burden is on the prosecution to establish that confessions made to the GID have not been procured by the use of torture and it is only in relation to confessions made before the Public Prosecutor that the burden of proof of torture is imposed on the defendant. However, in the light of the evidence summarised in the preceding paragraph, the Court is unconvinced that these legal guarantees have any real practical value. For instance, if a defendant fails to prove that the prosecution was implicated in obtaining an involuntary confession, that confession is admissible under Jordanian law regardless of any prior acts of ill-treatment or other misconduct by the GID. This is a troubling distinction for Jordanian law to make, given the closeness of the Public Prosecutor and the GID. Furthermore, while the State Security Court may have the power to exclude evidence obtained by torture, it has shown little readiness to use that power. Instead, the thoroughness of investigations by the State Security Court into the allegations of torture is at best questionable. The lack of independence of the State Security Court assumes considerable importance in this respect. As SIAC observed (at paragraph 447 of its determination, quoted at paragraph 46 above) the background to the judges of the State Security Court:

“[M]ay well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence.”

279. Thus, while, on any retrial of the applicant, it would undoubtedly be open to him to challenge the admissibility of Abu Hawsher and Al-Hamasher’s statements and to call evidence to support this, the difficulties confronting him in trying to do so many years after the event and before the same court which has already rejected such a claim (and routinely rejects all such claims) are very substantial indeed.

280. Therefore, the Court considers that, given the absence of clear evidence of a proper and effective examination of Abu Hawsher and Al-Hamasher’s allegations by the State Security Court, the applicant has discharged the burden that could be fairly imposed on him of establishing the evidence against him was obtained by torture.

ii. Would there be a flagrant denial of justice in this case?

281. SIAC found that there was a high probability that Abu Hawsher and Al-Hamasher’s evidence incriminating the applicant would be admitted at the retrial and that this evidence would be of considerable, perhaps decisive, importance against him (see paragraph 45 above). The Court agrees with these conclusions.

282. The Court has found that a flagrant denial of justice will arise when evidence obtained by torture is admitted in criminal proceedings. The applicant has demonstrated that there is a real risk that Abu Hawsher and Al-Hamasher were tortured into providing evidence against him and the Court has found that no higher burden of proof can fairly be imposed upon him. Having regard to these conclusions, the Court, in agreement with the Court of Appeal, finds that there is a real risk that the applicant’s retrial would amount to a flagrant denial of justice.

283. The Court would add that it is conscious that the Grand Chamber did not find that the test had been met in Mamatkulov and Askarov, a factor which was of some importance to the House of Lords’ conclusion that there would be no flagrant breach in the present case.

284. However, as the applicant has submitted, the focus of the Grand Chamber’s judgment in the Mamatkulov and Askarov case was on the binding effect of Rule 39 indications rather than on the substantive issues raised in that case under Article 6. Second, the complaint made by the applicants in that case of a violation of Article 6 was of a general and unspecific nature, the applicants alleging that at the time of their extradition they had no prospect of receiving a fair trial in Uzbekistan. Third, the Court found that, though in the light of the information available at the time of the applicants’ extradition, there may have been reasons for doubting that they would receive a fair trial in Uzbekistan, there was not sufficient evidence to show that any irregularities in the trial were liable to constitute a flagrant denial of justice; the fact that Court had been prevented from obtaining additional information to assist it in its assessment of whether there was such a real risk by Turkey ‘s failure to comply with Rule 39 was seen by the Court as a matter to be examined with respect to the complaint under Article 34 of the Convention.

285. In the present case, the situation is different. Extensive evidence was presented by the parties in respect of the applicant’s re-trial in Jordan and thoroughly examined by the domestic courts. Moreover, in the course of the proceedings before this Court, the applicant has presented further concrete and compelling evidence that his co-defendants were tortured into providing the case against him. He has also shown that the Jordanian State Security Court has proved itself to be incapable of properly investigating allegations of torture and excluding torture evidence, as Article 15 of UNCAT requires it to do. His is not the general and unspecific complaint that was made in Mamatkulov and Askarov; instead, it is a sustained and well-founded attack on a State Security Court system that will try him in breach of one of the most fundamental norms of international criminal justice, the prohibition on the use of evidence obtained by torture. In those circumstances, and contrary to the applicants in Mamatkulov and Askarov, the present applicant has met the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan.

b. The applicant’s remaining Article 6 complaints

286. The Court considers that the foregoing conclusion makes it unnecessary (save as above) to examine the applicant’s complaints relating to the absence of a lawyer in interrogation, the prejudicial consequences of his notoriety, the composition of the State Security Court, and the aggravating nature of the length of sentence he would face if convicted.

c. Overall conclusion on Article 6

287. The Court finds that the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention.