Re: [nationalsecuritylaw] United States v. Sterling (E.D. Va. Jan. 6, 2011)

Can we represent him?

From: Mark S. Zaid [mailto:zaidms@aol.com]
Sent: Thursday, January 06, 2011 2:29 PM
To: Neal Puckett; Eric Montalvo; Haytham Faraj
Subject: Fw: [nationalsecuritylaw] United States v. Sterling (E.D. Va. Jan. 6, 2011)

Sent via BlackBerry from T-Mobile

From: Robert Chesney <rchesney@law.utexas.edu>

Date: Thu, 6 Jan 2011 12:43:42 -0600

To: nationalsecuritylaw@utlists.utexas.edu<nationalsecuritylaw@utlists.utexas.edu>

ReplyTo: nationalsecuritylaw@utlists.utexas.edu

Subject: [nationalsecuritylaw] United States v. Sterling (E.D. Va. Jan. 6, 2011)

* United States v. Sterling (E.D. Va. Jan. 6, 2011) (indictment of former CIA officer for unauthorized disclosure of national defense information)

No, this has nothing to do with wikileaks as such. But you may recall a case from a few years ago involving a CIA officer who attempted to sue the agency for discrimination, only to have the case thrown out on state secrets grounds. Well, in a remarkable twist in the story, he was arrested this morning in St. Louis and now faces charges of unauthorized disclosure of national defense information involving a human asset and the weapons capabilities of a certain foreign country in connection with allegations involving his interactions with a journalist from a “national newspaper” whose work resulted in a book in January 2006. (See the press release below.) Given the date and topic, that sure sounds like a reference to James Risen’s State of War: The Secret History of the CIA and the Bush Administration. Recall that Charlie Savage in April 2010 reported that Risen had been subpoenaed to testify and give docs about his sources for the book, which according to this report at least he refused to do.

From the press release:

WASHINGTON – A former CIA officer was arrested today on charges that he illegally disclosed national defense information and obstructed justice, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division and U.S. Attorney Neil H. MacBride for the Eastern District of Virginia.

Jeffrey Alexander Sterling, 43, of O’Fallon, Mo., was charged in a 10-count indictment returned by a federal grand jury in the Eastern District of Virginia on Dec. 22, 2010, and unsealed today. The indictment charges Sterling with six counts of unauthorized disclosure of national defense information, and one count each of unlawful retention of national defense information, mail fraud, unauthorized conveyance of government property and obstruction of justice. Sterling was arrested today in St. Louis and is expected to make his initial appearance this afternoon before U.S. Magistrate Judge Terry I. Adelman in U.S. District Court for the Eastern District of Missouri.

According to the indictment, Sterling was employed by the CIA from May 1993 to January 2002. From November 1998 through May 2000, he was assigned to a classified clandestine operational program designed to conduct intelligence activities related to the weapons capabilities of certain countries, including Country A. During that same time frame, he was also the operations officer assigned to handle a human asset associated with that program. According to the indictment, Sterling was reassigned in May 2000, at which time he was no longer authorized to receive or possess classified documents concerning the program or the individual.

In connection with his employment, the indictment alleges that Sterling, who is a lawyer, signed various security, secrecy and non-disclosure agreements in which he agreed never to disclose classified information to unauthorized persons, acknowledged that classified information was the property of the CIA, and also acknowledged that the unauthorized disclosure of classified information could constitute a criminal offense. According to the indictment, these agreements also set forth the proper procedures to follow if Sterling had concerns that the CIA had engaged in any “unlawful or improper” conduct that implicated classified information. These procedures permit such concerns to be addressed while still protecting the classified nature of the information. The media, according to the indictment, was not an authorized party to receive such classified information under such circumstances.

The indictment alleges that Sterling, in retaliation for the CIA’s refusal to settle on terms favorable to him in the civil and administrative claims he was pursuing against the CIA, engaged in a scheme to disclose information concerning the classified operational program and the human asset – first, in connection with a possible newspaper story to be written by an author employed by a national newspaper in early 2003 and, later, in connection with a book published by the author in January 2006.

“The indictment unsealed today alleges that Jeffrey Sterling violated his oath to protect classified information and then obstructed an investigation into his actions. Through his alleged actions, Sterling placed at risk our national security and the life of an individual working on a classified mission,” said Assistant Attorney General Lanny A. Breuer. “Those who violate the law, and the trust placed in them by the U.S. government to keep our national security information secure, must be held accountable.”

“Our national security requires that sensitive information be protected,” said U.S. Attorney MacBride. “The law does not allow one person to unilaterally decide to disclose that information to someone not cleared to receive it. Those who handle classified information know the law and must be held accountable when they break it.”

The indictment alleges that Sterling took a number of steps to facilitate the disclosure of the classified information, including:

stealing classified documents and other information from the CIA and unlawfully retaining those documents without the authority of the CIA;
communicating by telephone, via e-mail and in person with the author in order to arrange for the disclosure of or to disclose classified information to the author;
meeting with the author in person to orally disclose classified information to the author and to provide documents containing classified information to the author for review or use;
characterizing the classified information in a false and misleading manner as a means of inducing the author to write and publish a story premised on that false and misleading information;
deceiving and attempting to deceive the CIA into believing that he was a former employee adhering to his secrecy and non-disclosure agreements; and
deliberately choosing to disclose the classified information to a member of the media, knowing that such an individual would not reveal his identity, thereby concealing and perpetrating the scheme.

Specifically, the indictment alleges that beginning in August 2000, Sterling pursued various administrative and civil actions against the CIA concerning alleged employment-related racial discrimination and decisions made by the CIA’s Publications Review Board regarding Sterling’s efforts to publish his memoirs. According to the indictment, on Feb. 12, 2003, the CIA rejected Sterling’s third offer to settle his discrimination lawsuit, which was ultimately dismissed by the court.

The indictment alleges that beginning a few weeks later, in February and March 2003, Sterling made various telephone calls to the author’s residence, and e-mailed the author a newspaper article about the weapons capabilities of Country A. According to the indictment, while the possible newspaper article containing the classified information Sterling allegedly provided ultimately was not published in 2003, Sterling and the author remained in touch from December 2003 through November 2005 via telephone and e-mail. The indictment alleges that in January 2006, the author published a book which contained classified information about the program and the human asset.

The indictment also alleges that Sterling obstructed justice when, between April and July 2006, he deleted the e-mail he had sent to the author concerning the weapons capabilities of Country A from his account. According to the indictment, Sterling was aware by June 2003 of an FBI investigation into his disclosure of national defense information, and was aware of a grand jury investigation into the matter by June 2006, when he was served a grand jury subpoena for documents relating to the author’s book.

The charges of unauthorized disclosure and retention of national defense information each carry maximum penalties of 10 years in prison. The charge of mail fraud carries a maximum penalty of 20 years in prison. The charge of unauthorized conveyance of government property carries a maximum penalty of 10 years in prison. The charge of obstruction of justice carries a maximum penalty of 20 years in prison. Each of these charges also carries a maximum fine of $250,000 or twice the loss or gain associated with the offense.