Sterling Prosecution Long on Rhetoric, Short on Evidence

By John Hanrahan, ExposeFacts.org

To hear the prosecution side tell it in the ongoing trial of Jeffrey Sterling, the former CIA officer who is accused of a national security leak involving Iran, Sterling has potentially (emphasis on potentially):

* placed a CIA “asset” at risk;

* hurt recruitment of other defectors, informants and turncoats;

* scared other current “assets” into having second thoughts about remaining as assets;

* tipped off the Iranians and the Russians and other nations that the CIA carries out clandestine schemes to disrupt other countries’ nuclear weapons programs;

* possibly caused the U.S. to modify its own nuclear weapons plans, and, well, you get the picture.

Sterling’s alleged actions — he is accused of providing New York Times reporter James Risen with classified information on a super-secret CIA scam, Operation Merlin, involving delivering flawed nuclear weapons plans to the Iranians in Vienna — also could “conceivably contribute to the deaths of millions of innocent victims.”

Or so said the CIA in talking points prepared for then-National Security Adviser and Hyperbolist-in-Chief Condoleezza Rice for a meeting with New York Times personnel in April 2003 in a successful effort to kill Risen’s story about Merlin. Risen subsequently reported the botched Iranian nuclear plan in his 2006 book “State of War,” much to the embarrassment of the CIA (and the New York Times editors who had killed his original piece).

All these dire warnings were delivered ominously by federal prosecutors in opening and closing arguments, by current and former CIA personnel, a former FBI counterintelligence officer and other national security officials. The case is now being deliberated by the jury.

There is only one thing wrong with the prosecution’s narrative about the dire consequences caused by James Risen’s book and Sterling’s alleged leaks — it is almost completely evidence-free.

Pressed by defense attorneys over the last two weeks, the various employees of the national security state could cite no one who had been killed or hurt as a result of the disclosures in Risen’s book, which came out nine years ago — more than enough time for the predicted cataclysm to occur.

No examples of prospective “assets” who had said no-thanks because of the Risen disclosures. No example of even one current asset who had quit over the disclosures. No alteration of U.S. nuclear weapons plans. And, no, Condi Rice, no one has yet been killed by non-existent Iranian nuclear weapons or in that scary mushroom cloud you falsely warned us about in the run-up to the 2003 invasion of WMD-free Iraq.

Typical this week was the testimony of former CIA official David Shedd, currently the acting director of the Defense Intelligence Agency, who pointed to many dire potential results of the Risen book’s now-aging disclosures. He called the leak “a breach of security that potentially would affect similar operations,” and warned that such a leak “could require modification” of U.S. nuclear plans — apparently because the bogus plans had good stuff in them that, warts and all, provided tips about the U.S. program. Which only underscores the craziness: If there is good stuff in the flawed plans, why would you want to peddle them to Iran or any other country you consider an adversary?

For the government’s case, of course, it is enough to talk of potential harm rather than actual harm to national security, something prosecutor Eric Olshan did so skillfully in his closing argument. Add to that the factor of a lot of intelligence community people telling the jury that we all should be more than a little frightened because a cockamamie, dangerous CIA plot was exposed. That helps sweeten the pot, and could be enough to persuade some jurors despite the absence of facts. And have a Bush administration superstar like Condi Rice spin more tall tales about WMDs, this time in Iran. When you don’t have evidence in a national security whistleblowing case, scare them.

And evidence, beyond the circumstantial and an impressive (if incomplete) chronology that shows Risen and Sterling contacting each other frequently in phone calls during key periods, was sorely lacking.

With defense attorney Edward MacMahon masterfully picking apart some of the key testimony of prosecution witnesses this week, these witnesses were forced to admit they have found no evidence that it was Sterling who gave Risen a document for his book; or that it was Sterling who gave Risen any information about anything in his book; or that anyone had ever seen Risen and Sterling together; or that Sterling took home or otherwise purloined documents relating to Operation Merlin.

And MacMahon and fellow defense attorney Barry Pollack have also demonstrated that there are multiple other possible sources for the leak of the Merlin materials but none was investigated.These include the Russian scientist who actually dropped off the flawed nuclear plans for pick-up by an Iranian official in Venice, other CIA officials, and various staffers of the Senate Select Intelligence Committee (to whom Sterling had legally gone in 2003 as a whistleblower to voice his concerns over Merlin). Pollack, in closing arguments, demonstrated there was a significant number of people who could have been sources for Risen, including the 90 CIA employees that government testimony showed had access to the Merlin program

FBI special agent Ashley Hunt, who has led the FBI investigation of the Merlin leak for more than a decade, presented the strongest circumstantial evidence against Sterling — the aforementioned chronology. MacMahon got her to acknowledge that she did not pursue — or was blocked from pursuing — certain paths of inquiry that might have turned up other suspects as the source of the Merlin information that Risen received.

Hunt acknowledged under tough questioning that she had once earlier in the investigation written memoranda saying Sterling was probably not the leaker and that the likely source was someone from the Senate Select Intelligence Committee (SSIC). She also acknowledged writing a memo in early 2006 citing “unified opposition” to her investigation within the committee, which was supposed to be monitoring Merlin. She testified that then-committee chairman Sen. Pat Roberts (R-Kansas) told her he was not going to cooperate with the FBI, and the committee staff director, Republican William Duhnke, refused to talk to her at all.

Two former staffers from the SSIC who met with Sterling in March 2003, when he brought what they and other prosecution witnesses have described as a whistleblowing complaint about the Merlin scheme, did testify as prosecution witnesses at Sterling’s trial. Under questioning, they provided testimony helpful to Sterling that showed that Risen, indeed, apparently had sources on the committee — a committee that was already familiar with Operation Merlin even before Sterling came to them with his concerns.

One former staffer, Donald Stone, even acknowledged in his testimony that he had taken a call from Risen sometime after that meeting with Sterling, but that he had told him he couldn’t talk to the press. Stone said he had not provided Risen with any information on any subject ever.

The other former staffer, Vicki Divoll, was fired from the committee after providing non-classified information to a Judiciary Committee staffer on a contentious intelligence authorization bill matter, only to see that information (which was embarrassing to the Republicans) trumpeted the next day in a front-page New York Times story written by — James Risen. She testified she had never spoken to Risen on any matter, but that others on the committee had dealt with Risen from time to time.

Divoll acknowledged telling the FBI at one point that Alfred Cumming, the committee’s Democratic staff director, had spoken to Risen on occasion. She also testified she had heard during her committee tenure — but had no direct knowledge — that both the Democratic and Republican staff directors on the committee talked to reporters on various matters, and that both officials sometimes gave reporters information they wanted in a quid-pro-quo arrangement in which the reporter would also agree to write a story that the committee official wanted. She said this was very much “third-hand” information, maybe even “fifth-hand.”

Defense attorneys hammered on the point through testimony from these prosecution witnesses that despite Risen’s sources and potential sources in both the CIA and on Capitol Hill (including right on the SSCI), none had had their residences searched, their computer’s contents analyzed, their telephone call logs examined, their bank and credit card records searched — as had been the case with Sterling.

As part of the defense’s counter-narrative, Pollack said in his closing arguments: “They have a theory, I have a theory.” But, he added, a jury should not convict or acquit someone on the basis of theories in such a serious case. Rather, he said, it was the government’s responsibility to present evidence showing guilt beyond a reasonable doubt, and “they haven’t done it.”

For much of this trial, the courtroom has been awash in reasonable doubt. Of course, jurors could choose to infer from the prosecution’s chronology of circumstantial evidence that Sterling was, in fact, one of Risen’s sources. And some of them could be scared enough by the government’s narrative to believe the “State of War” disclosures made us less safe. In the government’s rebuttal to Pollack’s closing argument, prosecutor James Trump played the terrorism and treason cards, in case jurors had missed the message earlier. Sterling had “betrayed his country…betrayed the CIA…”, in contrast to CIA employees who “serve and we rest easier as a result.”

Given the flimsiness of the case presented against Sterling, it would be a tragic miscarriage of justice if he were to be convicted and face a long prison sentence on the basis of nothing more than inferences — and the fears of nuclear nightmares the government says can ensue because of the Operation Merlin disclosures.

     John Hanrahan is a former executive director of The Fund for Investigative Journalism and reporter for The Washington Post, The Washington Star, UPI and other news organizations. He also has extensive experience as a legal investigator. Hanrahan is the author of Government by Contract and co-author of Lost Frontier: The Marketing of Alaska. He has written extensively for NiemanWatchdog.org, a project of the Nieman Foundation for Journalism at Harvard University.