The United States government requested a federal appeals court uphold the conviction of CIA whistleblower Jeffrey Sterling, who is currently serving a 42-month sentence in a prison in Littleton, Colorado.
Sterling stood up to the CIA and pursued a racial discrimination lawsuit against the agency in 2002. It was dismissed after the government invoked the “state secrets privilege” when it was before the Supreme Court in 2005. He also informed the Senate Intelligence Committee that he had knowledge of waste, fraud, abuse, and illegality related to “Operation Merlin”–a botched operation which involved passing flawed nuclear blueprints to the Iranians.
During a trial in January 2015, the government convinced a jury, with largely circumstantial evidence, that Sterling leaked information about “Operation Merlin” to New York Times reporter James Risen, who published details on the operation in a chapter of his book, “State of War.” The former CIA officer was convicted of multiple Espionage Act offenses and other crimes.
Sterling appealed in February. As the government summarized [PDF], Sterling’s attorneys maintain evidence and jury instructions were “insufficient to establish where he committed his crimes.” His attorneys also argue “there was insufficient proof that he tried to cover up his crimes by destroying evidence.” The district court’s “evidentiary rulings” were also “erroneous.”
Defense attorneys maintain the government “failed to offer non-speculative evidence that Sterling committed any essential criminal conduct in the Eastern District of Virginia,” where Sterling was put on trial.
In other words, what this means is there was no evidence presented, which showed Sterling met with Risen in person. While seven phone calls totaling four minutes and eleven seconds were made between Risen and Sterling, the leak of information about a top secret CIA program could not have happened during these calls.
The government counters, “Sterling destroyed much of [the direct evidence], and Risen steadfastly refused to testify about the identity of his source or the circumstances in which he received information about [the top secret CIA program] despite this court’s earlier ruling that he had no legal ground for refusing.”
“Sterling minimizes the significant circumstantial evidence from which the jury could, and did, find venue. Sterling lived and worked in the Eastern District and continued to live there throughout the critical period between his firing and his disclosure of information to Risen,” the government adds. “Sterling placed telephone calls and sent email to Risen from that district in the weeks leading up to Risen’s admission to the CIA (also in the district) that he had received information about the program, including a copy of Merlin’s letter to the Iranians. Risen later disclosed the information Sterling provided in ‘State of War,’ which was distributed widely in the district.”
All of this is important because a person has a constitutional right to be tried in the state where alleged crimes were committed. Also, the Eastern District of Virginia is, according to whistleblower attorney, Jesselyn Radack, “the most conservative court in the country.” It is known as an “espionage court” because the vast majority of people tried there for national security offenses rarely win.
Journalist Marcy Wheeler, who reported on the Sterling trial, has called attention to the fact that Sterling lost access to information about Operation Merlin in 2000. The government has no proof that the leak happened in 2000, or 2002, or 2003, or 2004. The circumstantial evidence suggests, if a leak happened, it occurred in Missouri after Sterling moved back home in late 2003.
Absurdly, the government had an FBI officer’s hairdresser testify at Sterling’s trial about how she read “State of War” in Alexandria, Virginia, and insisted that was proof the government had the appropriate venue.
Sterling’s defense counters, “Because Sterling and Risen were not charged as (nor alleged to be) conspirators, Risen’s acts of causing the publication and sale of his book in the district should not be imputed to Sterling. What is more, the government’s boundless theory would support nationwide venue for many crimes—a result inconsistent with both the letter and spirit of the Constitution’s venue provisions.”
One must also note the Justice Department made a policy decision not to force Risen to testify. They had the ability to compel him to give testimony. Risen fought the government’s efforts to violate his press freedom, and Attorney General Eric Holder was pressured into finding another way for the Justice Department to pursue the case against Sterling.
The defense for Sterling maintains the introduction of four unrelated classified documents found in Sterling’s Missouri home was “prejudicial character evidence.” It damaged his ability to prove he was innocent by creating the perception that he had a “habit of retaining classified materials in every house he occupied.” But the documents had nothing to do with the specific allegations against Sterling.
In the response to the appeal, the government defends the use of this evidence. “There is no likelihood that the evidence—which was only briefly shown to the jury during the trial and was a very small part of the government’s overall case—caused Sterling any unfair prejudice.”
Aside from the defense of the government’s prosecution, the government’s version of what Sterling did is teeming with allegations that Sterling leaked information for self-aggrandizement and duped Risen into publishing lies.
[Sterling falsified key details to make the program look like a failure (it was not); to make his CIA colleagues appear reckless (they were not); and to make himself look like a hero (he was not). Sterling hoped Risen would believe and publish his lies, discrediting the CIA in the process. And that is precisely what happened. Sterling’s actions destroyed the program, endangered the lives of a covert human asset and his family, and compromised the United States’ ability to prevent the spread of nuclear weapons.
The idea that Sterling “compromised” the U.S. government’s ability to “prevent the spread of nuclear weapons” in Iran is ridiculous, especially considering the government was able to negotiate a nuclear deal, which was seen as a major diplomatic achievement by President Barack Obama’s administration.
Finally, according to the government, Sterling’s attorneys, who represented him in his racial discrimination lawsuit against the CIA, apparently informed the CIA an “unnamed client,” later identified as Sterling, was concerned about “an operation that was nuclear in nature” and “threatened to go to the media.”
Mark Zaid, a well-known whistleblower attorney in Washington, D.C., represented Sterling at the time. It is remarkable that the government claims Zaid’s team ratted Sterling out to the government, when his practice depends on clients trusting him not to disclose privileged conversations to the government. Zaid consistently uses his account on Twitter to scold whistleblowers and attorneys for whistleblowers, who are unfair to the government, and this is how they repay him.
Fortunately, the claim appears to rest on the same amount of thin evidence that underpins the case against Sterling, but it is important to acknowledge this amount of circumstantial evidence was enough to convict him.
Sterling demands a new trial be awarded if he wins his appeal.