The CIPA hearing in Kiriakou's case
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The CIPA hearing in John Kiriakou's prosecution was the closed pre-trial proceeding, held under the Classified Information Procedures Act, at which his defence sought to have declassified the material it needed to answer the charges. Kiriakou treats it as the decisive event of the case, and as his standing illustration of why he says "there is no such thing as a fair trial" on a national-security charge.

The asymmetry

Under CIPA, Kiriakou says, a defendant accused of exposing what the government calls national defense information "is just simply not permitted to offer that information up in your own defence in court." The prosecution faces no equivalent bar: it may declassify material "solely for the purpose of prosecuting you, and that's what they did in my case. They said, 'we have declassified this information solely for the purpose of prosecuting Mr Kiriakou.'" The government would declassify only what it needed to prosecute, never enough for the defendant to answer.

The room

When the Justice Department invokes the statute, Kiriakou says, the courtroom is emptied of everyone but the prosecutors, the defence attorneys, the defendant, the judge, the clerk and the court reporter. "That's it. The courtroom is empty." The doors are then physically locked and a technical team is brought in to sweep for bugs before argument begins.

Seventy motions, denied at once

Two full days had been blocked off for the hearing and the defence had filed seventy motions to declassify. "We walked into the courtroom, CIPA was invoked, the courtroom was cleared, and they literally, they physically locked the door, and then the judge said, 'I'm going to save everybody a lot of time, and I am going to deny all 70 of these motions.' She said, 'you just simply do not need this information to defend yourself.' And then that was it."

Kiriakou's account of the walk out of the courtroom is the part he repeats: "I said to my lead attorney, 'what just happened in there?' And he said, 'we just lost the case, that's what happened. We have no defence.' And it was true. I said, 'now what do we do?' He said, 'now we talk about a plea.'"

His verdict on it

"That's not justice. Not at all. That's Washington-area justice, that's national-security justice." He glosses it with a Richard Pryor line, that you go to court looking for justice, "and that's what you find: just us", and applies the same expectation to what Julian Assange would face in the Eastern District of Virginia.

The count, in two tellings

Kiriakou has given the number of denied motions twice, and not identically. In April 2019 he said "70 of these motions", denied together at a hearing for which two full days had been set aside. In June 2018 he put it at seventy-two, and named the judge: "there's one judge in particular, Judge Leonie Brinkema, who reserves all of these cases for herself, so she's been the judge for all of us, and we were all found guilty ... she denied seventy-two of my motions and approved zero." The two accounts are otherwise identical, including the exchange on the way out of the courtroom.

The advice he drew from it he says he also gave privately: "this is the same advice I gave Ed Snowden, don't come home, because you can't get a fair trial here." What distinguishes Julian Assange's position, on his account, is that "Julian doesn't have the choice, and that's what frightens me even more", with the British "essentially puppets of the United States in cases like this."

The ex parte conference, and a third count

Kiriakou''s earliest account of the hearing, given in January 2013, adds the procedural step that the later tellings compress out, and gives the motion count a third time as seventy-five.

The defence expected the court to block off two days. "In fact there had been a conversation with the prosecution, and so she blocked off an hour to hear the 75 motions, so we knew we were in trouble." At the start of the hearing the prosecutor rose and requested what Kiriakou calls "a rule four conversation": "I didn''t know what this was. My attorneys objected and said, ''if you don''t want the defendant to hear, at least allow us to hear, so that we can represent his interests.'' And the judge said, ''No, this is a national security case, I''m allowed an ex parte communication with the prosecutors.''"

What followed he describes as audible but unintelligible: "the prosecutors went up to the bench, we could hear them whispering. They came back to their table, and the judge said, ''all 75 motions are denied.'' And that was the end of it. We got up and we walked out of court, and my attorney said, ''we have to negotiate a plea.''" He calls the experience "extremely disheartening," and says he had never heard of such a procedure before.

The count in this telling, seventy-five, sits alongside the seventy he gave in 2019 and the seventy-two he gave in 2018. The structure of the account is identical in all three: motions filed to declassify the defence, all denied together, and the conversation on the way out of the courtroom in which his lawyer told him the case was over.

The corridor afterwards

In a 2019 telling Kiriakou gives the count as seventy motions to declassify seventy separate classified documents, filed so that he could present them to prove his innocence, and adds a detail absent from his other accounts: two days had been blocked off for the hearing.

What happened instead was one sentence. They walked into the courtroom and the judge said she was going to make this easy for everyone and deny all seventy of the motions, "and then that was it." He prefaces it with the warning he says his attorneys had already been given at the very beginning: that she would not allow them to put on a defence.

The exchange in the corridor is what he uses to date the end of the case. "I said to my lawyers, what just happened? And they said: we just lost the case, that's what happened. I said, well what do we do now? The answer was: now we talk about a plea."

The statements he was never permitted to see

One element of the sentencing appears in the February 2013 telling and nowhere else in the corpus. Having noted that in national-security cases "prosecutors are allowed to have ex parte communications with the judge, that's a communication to which the defence and the defence attorneys are not privy," and that "they had such a communication just before I was formally sentenced," Kiriakou adds a second document.

> "The prosecutors also gave the judge the so-called victim impact statements. I have no idea what was in that impact statement, because I wasn't permitted to see it, but whatever it was, and whatever the prosecutors told the judge, they somehow convinced her to go on the record as saying that I deserve ten years in prison."

The objection is not that the statements existed but that they were decisive and unreadable: a document he could not answer, in a proceeding at which he was the defendant.

See also

- Eastern District of Virginia
- Espionage Act
- Julian Assange
- John Kiriakou
