Leonie Brinkema
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Leonie Brinkema presides in the Eastern District of Virginia, which John Kiriakou described as "the Espionage Court", the home jurisdiction of the CIA, the Pentagon, and the Department of Homeland Security. No national-security defendant has ever won a case in that district. A jury consultant who reviewed Kiriakou's case for free told his defense team that in any other federal district they would have a real shot at acquittal, but that an Eastern District of Virginia jury would be drawn from people who worked for the CIA, the Pentagon, the FBI, or intelligence-community contractors, or who had relatives who did, "you don't have a prayer." Kiriakou identifies her as a Ronald Reagan appointee and calls her "a hanging judge", "everybody said it, everybody knew it." In a separate interview, however, he described her instead as a Bill Clinton appointee, calling her "dangerous" and noting that, still on the bench in her 80s, she is "wrecking people's lives each and every day."

Kiriakou described Brinkema's practice of self-assigning national-security cases. Cases are supposed to be randomly distributed among judges via a judicial wheel; Brinkema, he said, reserved major national-security matters for herself. Her docket included Kiriakou, Jeffrey Sterling, Edward Snowden, Zacarias Moussaoui (the alleged twentieth 9/11 hijacker), and the Julian Assange extradition proceedings, with every defendant who came before her found guilty. In an earlier interview, however, Kiriakou said Brinkema had not taken the Assange case, that Assange instead drew a judge who was formerly on the FISA court.

In Kiriakou's case, Brinkema ruled on 100 defense motions to use classified discovery documents at once, denying all of them from the bench before arguments were heard: "I'm going to make everybody's day much easier and I'm going to just deny all 100 of these motions." When Kiriakou's attorney said the classified documents constituted the entire defense, Brinkema replied: "Classified is classified." In a separate telling, Kiriakou put the number at 150 motions for declassification, out of 15,000 pages of classified discovery, and said the judge denied every one of them in a single five-minute hearing: "Let me make this easy for everyone. I'm denying all 150 motions." Kiriakou also said Brinkema would not permit an affirmative defense and would not require the prosecution to show either damage to national security or criminal intent.

The judge further ruled that the word "whistleblower" was itself classified and could not be used in court. Kiriakou and his attorneys were required to use substitute language.

Brinkema's legal definition of espionage, that it required only the provision of national-defense information to a person not entitled to receive it, with no requirement of harm or foreign recipient, differed from a ruling in the Tom Drake case in the District of Maryland, which required a showing of harm to national security. Brinkema refused to apply that precedent. When Kiriakou's attorneys cited the Drake precedent to argue he lacked criminal intent, Brinkema said she had chosen not to respect it; his lead attorney then asked whether that meant a person could accidentally commit espionage, and after she confirmed it, she looked at Kiriakou directly and said, "you either did it or you didn't do it, and I think you did it."

At Jeffrey Sterling's sentencing, Brinkema stated she was giving Sterling "Kiriakou plus 12 months."

Plea agreement and sentence

At the close of the case, all three original espionage charges against Kiriakou and the false-statements charge were dropped, leaving only a single charge under the Intelligence Identities Protection Act, for which sentencing guidelines called for roughly four years and four months. Kiriakou's attorneys negotiated a binding "11(c)(1)(c)" plea agreement, a fixed-time deal Brinkema could only accept or reject outright, rather than modify. Brinkema, a federal judge since 1986, told Kiriakou it was the first such plea agreement she had ever seen, and that she would have given him ten years if she had the discretion to do so.

Sentencing day

Kiriakou describes sitting in Brinkema's courtroom on his own sentencing day, going last because his case was high-profile. She sentenced twenty to twenty-five other people first that day, mostly drug cases, issuing what he calls draconian terms of 20, 30, and 50 years while, after each one, declaring the sentence "fair and appropriate," breaking up families as children and spouses in the gallery cried. Kiriakou says she had "a bad habit of reserving all national security cases for herself", Zacarias Moussaoui, Edward Snowden, Julian Assange, Daniel Hale, and Jeffrey Sterling among them, sending every one of them to prison, including him.

'You either did it or you didn't' (News Beat)

John Kiriakou describes Judge Leonie Brinkema, a Reagan appointee who reserved most national-security cases for herself, his, Jeffrey Sterling's, Zacarias Moussaoui's, and the still-open Edward Snowden and Julian Assange matters. When his lawyer noted he had no criminal intent, she said she would "not respect that decision"; asked whether a person could "accidentally commit espionage," she answered, "that's exactly what I'm saying," then denied all 110 of his declassification motions, leaving him unable to defend himself.

Passed over for the Assange case (2020)

On the #FreeAssangeVigil in May 2020, John Kiriakou said he had "predicted for a long time, wrongly, as it turned out, that Julian's judge would be Judge Leonie Brinkema," who "usually reserves these national security cases for herself." The case was, however, taken away from her by the chief judge of the Eastern District of Virginia, a jurist Kiriakou notes "just happens to have been a FISA court judge before he was named to the Eastern District", an alignment that, he said, "makes me want to run screaming from the room."

The intent and harm rulings

Two of Brinkema's rulings in Kiriakou's case became the foundation of his later argument that Espionage Act enforcement is selective. She ruled that evidence of the accidental release of national defence information was inadmissible, and she held that the government did not have to prove that a leak of classified information had actually caused any harm to the United States.

Kiriakou's reading of the combined effect is that the act of disclosing the kind of broad information covered by the Act is prosecutable regardless of outcome or motive, a standard he argues would equally reach Leon Panetta.

The reversal between October and January

The sharpest contemporaneous account Kiriakou gave of the judge came days after his sentencing, and turns on a change of position he says was never explained. When Brinkema accepted the binding plea agreement in October 2012, "she called 30 months fair and appropriate." At the sentencing hearing the following January, in front of a courtroom packed with journalists, she said instead that thirty months was "frankly way too light" and that a message had to be sent. Kiriakou''s inference was about the audience: "I can only think that with a courtroom packed full of journalists, she decided to seize the moment and make a statement that would be carried in the papers."

What he identifies as the only intervening variable is procedural. "I don''t know what changed between October and January, other than the fact that she and the prosecution had had several ex parte communications. What that means is the prosecutors were able to meet with the judge related to my case without the defence, my attorneys, being present. So we have no idea what it was that the prosecution told the judge. We were not allowed to defend ourselves."

"She could have"

Kiriakou has pointed out that the judge''s stated regret at the length of his sentence was within her power to remedy. Presented with the binding 11(c)(1)(C) agreement, Brinkema said she had been a federal judge since 1986, had never seen such a plea, and "I don''t like it. I don''t like it one bit. If I could give you ten years, Mr Kiriakou, I would give you ten years."

His answer: "well, the truth is she could give me ten years. All she had to do was reject the 11(c)(1)(C)." What he reads into her not doing so is the same thing he read into the rest of the hearing, the audience: "every national security journalist in Washington was in the courtroom that day for my sentencing, and she was playing to the reporters."

Asked to compare her remarks with those of the judge in the Littlejohn case, he gave her the narrower credit available: "that surpasses what Judge Brinkema said to me ... she never accused me of weakening our democracy. She never accused me of domestic terrorism."

The refused precedent

Kiriakou's account of the ruling adds one element beyond the sentence he most often quotes: the precedent that was set aside. His judge, he says, "would not respect a precedent that was set in the Tom Drake case," defining espionage instead as "providing national defense information to any person not entitled to receive it."

When his attorneys pressed the implication, whether a person could accidentally commit espionage, the answer was "that's exactly what I'm saying," followed by the line to Kiriakou himself: "Mr Kiriakou, you either did it or you didn't do it, and I think you did it."

Two hundred motions, one ruling

The hearing had been given three days. Kiriakou's lawyers had written "hundreds of motions to throw out documents", roughly 200 of them, all going to criminal intent, because the cables in question showed his refusal to take part in the torture training, his objections to torture while still inside the agency, and "dozens, hundreds of cables that laid out the actual torture techniques that were being used."

"We walked into the courtroom and she said: I'm going to save everybody a lot of time, and I'm denying all 200 of these motions." She then declared a recess. "As we were walking out, I said to my lead attorney: what just happened? And he said: we just lost the case. That's what happened."

The intent ruling that preceded it is recorded in the same telling: Brinkema interrupted the argument to say she would not respect other courts' precedent that a defendant must have had criminal intent, and when counsel asked whether she meant a person could accidentally commit espionage, answered "that's exactly what I'm saying," before turning to Kiriakou, "Mr Kiriakou, you either did it or you didn't do it. And I think you did it."

The career he attributes to her

Asked in 2019 why Assange could not get a fair trial, Kiriakou answered by describing the judge rather than the charges, and gave her career in three steps: appointed to the federal bench by President Reagan, elevated from magistrate to trial judge by President Clinton, and, before she became a judge at all, a national security prosecutor in the Justice Department.

It is the last of the three that carries his argument. The docket follows from it: she reserves all national security cases for herself, and he lists his own, Jeffrey Sterling's, the Snowden case and the Assange case, adding that she had also taken Zacarias Moussaoui, whom he identifies only as the alleged twentieth hijacker.

The conclusion he draws is flat: "no national security defendant has ever won a case in her courtroom."

He expected at this point that she would hear the Assange case herself. She was passed over for it the following year.

The earliest telling: the reporters in the room

Given eight days after sentencing, Kiriakou's first public account of the reversal pins the dates precisely and offers an explanation he does not repeat later. In October 2012, when he accepted the plea to violating the Intelligence Identities Protection Act, "the judge called thirty months fair and appropriate." Then, "just a couple of months later, on Friday, she said that it was, quote, way too light, unquote, and that if she had not had her hands tied by this plea deal, she would have given me ten years."

What he suggests changed is not procedural but theatrical: "I don't know what changed between October and January, other than the fact that the courtroom in January was full of reporters, and she may have wanted to appear tough."

His 2015 account of the same gap names the ex parte communications instead. Both explanations are his own, given two years apart, and neither is withdrawn; the 2013 telling in fact contains the ex parte fact as well, and simply does not lean on it.

See also

- Espionage Act
- John Kiriakou
- Jeffrey Sterling
- Tom Drake
