Secret Showdown in CIA Leak Case

December 2, 2014

By Josh Gerstein via Politico

Prosecutors and defense lawyers in the case of a former CIA officer accused of leaking top-secret information to a New York Times reporter had a secret showdown in federal court recently over what to do about a half-dozen prosecution witnesses whose own employment records show violations of the rules and arguably even the laws governing handling of classified information.

The six witnesses set to testify against alleged leaker Jeffrey Sterling took secret documents home themselves without authorization, according to a recent court filing.

Defense lawyers for Sterling have seized on the episodes, arguing that the defense should be able to challenge the witnesses about the incidents at the ex-CIA officer’s trial, scheduled to begin next month in an Alexandria, Virginia, courtroom.

Prosecutors moved to thwart the defense tactic, contending that the episodes were largely inadvertent and amounted to isolated occurrences irrelevant to the charges Sterling faces for allegedly leaking details of what the CIA called “Operation Merlin” to Times reporter James Risen.

“We have disclosed that six of these witnesses have acknowledged taking home secret documents, returning them to the agency, and self-reporting their conduct,” prosecutors wrote in a Nov. 20 filing. “Five of the witnesses admitted inadvertently taking home a single document and then returning it. Only one of these incidents occurred within the past few years.”

Prosecutors asked U.S. District Court Judge Leonie Brinkema to bar the defense from raising the episodes at Sterling’s trial. The government insisted that the incidents aren’t black marks against the witnesses, who are apparently current or former CIA employees.

“The relatively few instances of this type of conduct demonstrates just how serious these employees take their responsibilities to protect classified information, especially when one considers the hundreds of years of combined agency service represented by the government’s witnesses,” prosecutors wrote.

Precisely what arguments defense attorneys made in favor of allowing the jury to learn about the witnesses’ records are unclear because arguments on the issue took place in a sealed courtroom Nov. 20 and the defense filing on the subject remains under seal pending a classification review. Defense lawyer Ed MacMahon declined to comment for this post.

However, the prosecution pleading filed publicly last month (and posted here) indicates that the defense argued that four of the witnesses were potential sources for Risen, since they knew some details of the operation Sterling is accused of revealing to the Times reporter — an alleged effort to undermine Iran’s nuclear program by feeding Tehran flawed nuclear weapons designs.

The defense also appears to be trying to draw parallels between the conduct of the witnesses and the allegations against Sterling. He is charged with keeping at his home a letter relating to the CIA’s highly classified Iran operation — a letter that eventually appeared in Risen’s book “State of War.”

The government never found that letter in Sterling’s possession, but court filings say investigators did find four other documents classified secret at the ex-CIA officer’s residence. He was not charged with any crime for retaining those documents, but prosecutors say it’s circumstantial evidence that he kept the letter and other classified information about the Iran operation.

Brinkema appears to have approved the questioning of at least some of the witnesses about their own mishandling of classified information, but the details of her ruling remain under seal.

The disclosure about the prior incidents of mishandling classified information also solves a long-running mystery about what derailed Sterling’s trial just before it was to take place in 2011. A few days before the trial, prosecutors belatedly told the defense about issues in the personnel files of six planned witnesses for the government.

Brinkema responded to the late disclosure by barring testimony from two of the witnesses. Rather than accept that ruling, prosecutors appealed the case to the 4th Circuit U.S. Court of Appeals, effectively scuttling the trial.

The appeals court ruled that the government did move too slowly to disclose the details about the history of its planned witnesses but concluded that the delay was an oversight and the punishment Brinkema imposed — completely excluding the testimony of the two witnesses — was “too severe.”

Both sides in the case are still awaiting a decision from Attorney General Eric Holder about whether to again subpoena Risen to testify about his sources for his book. Risen has refused to testify about his sources and about most details relating to his reporting.

Holder and President Barack Obama have indicated publicly that they believe journalists should not face jail time for contempt in such situations, but a prosecutor said in October that a fresh review was planned at the Justice Department of whether Risen should be called to testify at Sterling’s long-deferred trial.

Brinkema ruled in 2011 that Risen should not have to testify about the details of his sourcing, but the 4th Circuit overturned that decision last year and the Supreme Court declined to take up the dispute.

Image: Rossrs