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Journalists assert reporter's privilege in whistleblower prosecution

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  1. Protecting Sources and Materials
Update, Oct. 23: Kiriakou pleaded guilty today to one count of disclosing information identifying a covert agent and will likely…

Update, Oct. 23: Kiriakou pleaded guilty today to one count of disclosing information identifying a covert agent and will likely be sentenced to two and a half years years imprisonment under a plea deal with prosecutors. As part of the agreement, the remaining four counts of the indictment, including three counts of violating the Espionage Act, were dismissed. Kiriakou is scheduled to be sentenced in January. The guilty plea followed a ruling by Brinkema that the government would only have to prove that the disclosed information could be used to harm the United States. Kiriakou unsuccessfully argued that prosecutors would have to meet a higher standard: proof that Kiriakou intended the harm. Brinkema did not rule on the journalists' motions to quash, but the subpoenas presumably expire with the guilty plea.

Two reporters are challenging subpoenas seeking their testimony in the government’s latest whistleblower prosecution.

Washington Post researcher Julie Tate and another individual identified in court documents only as “Journalist A” have filed motions to quash subpoenas issued by John Kiriakou, an ex-CIA officer charged with disclosing classified information to the media. U.S. District Judge Leonie M. Brinkema of Alexandria, Va., is scheduled to hear arguments on the motions Thursday afternoon.

Observers, including journalists who have written about the Kiriakou prosecution, speculate that Journalist A is Matthew Cole, a former ABC News producer who was a freelance writer at the time of the alleged leaks. Another journalist, identified in court documents only as "Journalist B" is believed to be New York Times reporter Scott Shane. Whether Kiriakou also subpoenaed Shane is unclear, although a motion to quash by him is not included in the case docket.

Both Tate and Journalist A argue that the First Amendment-based reporter’s privilege protects them from compelled disclosure of the information Kiriakou seeks. Journalist A also is asserting his Fifth Amendment right against self-incrimination.

Kiriakou was indicted in April after lawyers representing high-profile prisoners at Guantanamo Bay received personal information about CIA employees. He was charged with violating the Espionage Act, the Intelligence Identities Protection Act and making false statements to the CIA Publications Review Board about “The Reluctant Spy” — a 2010 memoir he published about his time searching for terrorists as a CIA operative. In July, the U.S. government said it will not subpoena journalists as witnesses in the case.

Kiriakou is among six government employees accused within the last few years of violating the Espionage Act by speaking to the news media.

An appeal of Brinkema’s order quashing a subpoena seeking the trial testimony of New York Times reporter James Risen in the prosecution of another former intelligence officer, Jeffrey Sterling, is pending before the U.S. Court of Appeals in Richmond, Va. (4th Cir.).