Seventy-two denied motions is the figure John Kiriakou gives for the pretrial rulings in his own prosecution, and which he uses to explain why he regards a national security trial in the Eastern District of Virginia as unwinnable.
The venue
Kiriakou has described the Eastern District of Virginia as being known as the espionage court, and said that no national security defendant has ever won a case there. He lists himself, Edward Snowden and Jeffrey Sterling as having been tried or charged there. [1]
He adds that one judge in particular, Leonie Brinkema, reserves these cases for herself, and so was the judge in all of them — and that all of them were found guilty. [2]
The mechanism
Beyond the outcome, Kiriakou’s complaint is procedural. He has said Brinkema made it literally impossible to mount a defence, because every time the defence moved the court to allow the declassification of information necessary to defend himself, she denied the motion. His count is that she denied seventy-two of his motions and approved zero. [2]
How the denial came
In several tellings the ruling arrives by a particular route. The case went right up to trial; then there was an in-camera meeting — a private, secret meeting with the judge, from which his attorneys were excluded — and when the judge came out of chambers she denied every one of his motions to declassify the documents necessary for him to defend himself.[3][4] The count Kiriakou gives is not stable across tellings: seventy-two in one, seventy-five in others.[5][6] What the documents were for does not vary — they were declassification motions, seventy-odd different documents, and without them, in his attorney’s words, “we have no defense … we can’t defend you.”[5]
His attorney, Plato Cacheris, had already read the prosecution’s willingness to reduce its offer as weakness — in fifty-four years practising in Washington he had never seen the government come down on time, and his explanation was that they had a poor case and knew it.[7][3]
The exchange he cites
Kiriakou has recalled walking out of the courtroom one day and asking his attorney what had just happened. The answer was: “We just lost the case, that’s what happened.” [8]
The plea
The denial made the plea unavoidable — “if we take a plea I go to prison, and I haven’t done anything wrong; what I did was in the public interest,” he objected, and was told it did not matter, because the judge would not let him have a defence.[5] In negotiation the government would not come below three and a half years. Kiriakou’s answer was that he would go to trial and testify on his own behalf, and might accidentally talk about the war crimes and crimes against humanity he had witnessed over fifteen years in the Middle East. The offer came back at two and a half years — 23 months to serve — and he took it.[9][10]
The day he decided to fight
Kiriakou has described what the denial did to him, and he tells it deliberately rather than in passing. Leaving his attorney’s office after that meeting, depressed and upset, he went to the subway to go home, stood at the edge of the platform and watched the train come in, and thought that he was going to jump. What stopped him was the reckoning of who would benefit: “that’s what they want me to do — they would win if I did this,” and he had five children at home. “I decided that day I’m going to fight.”[11][12]
He is explicit that this is not particular to him: “every national security whistleblower will tell you a variation of the same story.” He names Thomas Drake; Bill Binney, who was pulled naked out of a shower and handcuffed; and Jeffrey Sterling, who telephoned him four times the day before he reported to prison.[12]
The advice that follows from it
Kiriakou has said this is why he told Edward Snowden not to come home — that he could not get a fair trial. He made the same argument about Julian Assange in 2018: that if forced out of the Ecuadorian embassy and extradited, Assange could not get a fair trial either, because the deck is stacked and everybody knows what will happen. What frightened him more in Assange’s case, he said, is that Assange does not have the choice. [8]