Federal appeals panel to hear CIA leak case

May 18, 2012

The Boston Globe on May 18, 2012 released the following:

“By Zinie Chen Sampson
Associated Press

RICHMOND, Va.—A federal appeals panel will hear the case of an ex-CIA officer charged with leaking classified information about Iran’s nuclear program to a New York Times reporter.

Federal prosecutors will ask the panel Friday to reverse a pretrial ruling limiting the scope of reporter James Risen’s testimony in the prosecution of Jeffrey Sterling. They argue that the First Amendment doesn’t shield journalists from disclosing their sources during criminal prosecutions brought in good faith.

The judge ruled that Risen must testify at Sterling’s trial, but narrowed his testimony to four issues.

Prosecutors say Sterling was a key source in Risen’s 2006 book, “State of War.” They’re also challenging the court’s decision to strike two government witnesses and allow disclosure of the identities of covert CIA operatives to Sterling’s lawyers.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Federal Indictment

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Prosecutor Who Ran Ethics Unit Leaves Justice Department

April 17, 2012

The New York Times on April 17, 2012 released the following:

“By CHARLIE SAVAGE

WASHINGTON — The Justice Department on Monday announced the departure of a high-profile prosecutor who ran its ethics unit during the botched case against Senator Ted Stevens and has since played a prominent role in the Obama administration’s efforts to prosecute officials for leaking information to the press.

The departure of the prosecutor, William M. Welch II, was disclosed in a motion before a federal appeals court in Richmond, Va. The department informed the court that he would no longer represent the government in the case against Jeffrey Sterling, a former Central Intelligence Agency official who is accused of leaking information to James Risen, an author and a reporter for The New York Times.

“Mr. Welch is leaving the Department of Justice for a job in the private sector,” the motion said, but it did not give details.

Another department official confirmed that Mr. Welch had retired, saying that his last day was Friday, and that he was taking a job in the Boston area. A law firm that represented him during the fallout from the Stevens case also confirmed that he had left the Justice Department. NPR first reported Mr. Welch’s departure on Monday.

A hard-charging prosecutor, Mr. Welch got his start in 1989 in the Justice Department’s tax division and later worked as an assistant United States attorney in Nevada and in Massachusetts. In August 2007, he was made acting deputy chief of the public integrity section at Justice Department headquarters, and the following March became its chief.

In that position, he oversaw the trial team that won a conviction against Mr. Stevens in October 2008 for failing to report gifts from an oil-services firm. But the conviction was withdrawn and the case collapsed after it emerged that prosecutors had failed to turn over information to the defense that could have helped Mr. Stevens, an Alaskan Republican who lost re-election in November 2008 and later died in a plane crash.

The federal judge overseeing the case held Mr. Welch and other prosecutors involved in the case in contempt of court, and the judge and the Justice Department opened investigations. Last month, however, the judge made public the results of his investigation, and the findings largely exonerated Mr. Welch.

Specifically, the report found that Mr. Welch had been cut out of direct supervision of the trial team because his superiors in the criminal division had taken a strong interest in the case and so he had focused on other cases. It also found that “to his credit, on each occasion” when disclosure issues were brought to Mr. Welch for a decision, he directed prosecutors to provide the information to the defense.

Back in 2009, Mr. Welch was replaced as head of the public integrity section. In October of that year, he returned to the United States attorney’s office in Massachusetts but continued to work for the criminal division, whose new head, Lanny A. Breuer, asked him to take up several largely dormant leak investigations left over from the Bush administration years.

One of those cases was against Thomas Drake, a former National Security Agency official whom Mr. Welch eventually prosecuted in connection with leaks to The Baltimore Sun about enormous waste and mismanagement within the agency.

Mr. Welch initially sought conviction on charges that could have put Mr. Drake in prison for 35 years, winning an indictment in April 2010. But the case against Mr. Drake largely collapsed amid a dispute over what classified evidence prosecutors could use.

Mr. Drake pleaded guilty to a single misdemeanor charge and received a year of probation, while all the major charges were dropped and he avoided prison time. When the judge overseeing the case accepted the deal in July, he called the government’s handling of the case — putting Mr. Drake through “four years of hell” and devastating him financially, only to drop the major charges on the eve of trial — “unconscionable.”

Mr. Welch also helped revive an investigation against Mr. Sterling, who is accused of providing information about what was portrayed in Mr. Risen’s 2006 book, “State of War,” as a botched effort to sabotage Iranian nuclear research in 2000. Mr. Sterling was indicted in December 2010.

That case, too, is in trouble. Mr. Welch had been seeking to compel Mr. Risen to testify against Mr. Sterling, but Mr. Risen’s lawyers invoked the First Amendment and said he would not testify about any confidential sources. A district court judge ruled in favor of Mr. Risen. In appealing that ruling, prosecutors told the appeals court that if the ruling stands, it “effectively terminated the prosecution” of Mr. Sterling.”

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Feds Want to Seal Parts of CIA Leak Hearing

April 11, 2012

Courthouse News Service on April 11, 2012 released the following:

“By JACK BOUBOUSHIAN

(CN) – A former CIA officer accused of leaking defense secrets will not oppose the government’s motion to seal portions of the upcoming oral argument before the 4th Circuit.

Jeffrey Sterling is accused of leaking classified information to New York Times reporter James Risen, who used the information in Chapter 9 of his 2006 book “State of War.”

Though a federal judge found that Risen does not have to reveal his source because of reporter’s privilege, the government has appealed this issue to the Richmond, Va.-based court.

On April 6, 2012, the court requested the parties’ views “on whether all of the oral argument should be held in a sealed courtroom, or whether the argument should be bifurcated, with a portion of the argument held in an open courtroom, and the portion of the argument related to the classified materials held in a sealed courtroom.”

After the parties conferred, the government responded to the court’s letter with an unopposed motion requesting that the court divide the oral argument in two.

Prosecutors asked that the first and public portion of the oral argument be devoted to “whether intervenor James Risen has a constitutional or common law privilege to refuse to disclose his source.” They said that this issue “will not require the parties to discuss or consult classified materials during oral argument.”

The government requested that the “the second and third issues on appeal – concerning the district court’s discovery order and its order related to witness security – do involve classified information, and the district court’s decisions concerning these matters were announced at sealed hearings conducted pursuant to the Classified Information Procedures Act. It is necessary and appropriate to seal the courtroom during the oral argument concerning these issues.””

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Former CIA officer accused of terror leaks

January 23, 2012

The Associated Press on January 23, 2012 released the following:

“By MATTHEW BARAKAT
Associated Press

ALEXANDRIA, Va. (AP) — In the latest criminal case in the Obama administration’s effort to punish leakers, an ex-CIA officer who helped track down and capture a top terror suspect was charged Monday with disclosing classified secrets about his teammates to the media.

John Kiriakou (keer-ee-AH’-koo), 47, of Arlington is charged with violating the Intelligence Identities Protection Act and the Espionage Act. A judge at a federal court hearing ordered Kiriakou to be released on a $250,000 unsecured bond.

According to authorities, Kiriakou told a New York Times reporter classified information about a fellow officer who participated in interrogating suspected al-Qaida financier Abu Zubaydah in 2002, eight months after the 9/11 terrorist attacks. Zubaydah was waterboarded 83 times and his case has been made an example by those who believe the interrogation technique should be outlawed.

According to an affidavit, FBI agents interviewed Kiriakou last week, and he denied leaking the names of covert CIA officers. When specifically asked whether he had provided the Zubaydah interrogator’s name to the Times for a 2008 article, he replied “Heavens no.” A New York Times spokeswoman said the newspaper declined comment.

Kiriakou’s attorney, Plato Cacheris, said after his hearing that a potential defense argument could be that the charges criminalize conduct that has been common between reporters and government sources for decades. If convicted, Kiriakou could face decades in prison and a fine up to $1 million.

Prosecutors started their investigation after defense attorneys for suspected terrorists filed a classified legal brief in 2009 that included details that had never been provided by the government. Authorities concluded that Kiriakou had leaked the information to reporters, and that reporters had provided the information to the defense.

The charges state that Kiriakou, who was an intelligence officer from 1990 to 2004, leaked information about the identity of another officer who interrogated Zubaydah. In a 2007 interview with ABC News, Kiriakou said that waterboarding was used – effectively – to break down Zubaydah. But he expresses ambivalence about the use of waterboarding in general.

Kiriakou has worked as a consultant to ABC News, although he hasn’t appeared on the network since early 2009. ABC had no comment on his arrest.

According to a court affidavit, the photographs of the CIA officer who participated in the Zubaydah interrogation were found in the possession of terrorist detainees at Guantanamo Bay.

The charges also accuse Kiriakou of lying about his actions in an effort to convince the CIA to let him publish a book, 2010′s, “The Reluctant Spy: My Secret Life in the CIA’s War on Terror.”

Since leaving the agency, Kiriakou has worked as a consultant and on the Senate Foreign Relations Committee, according to his LinkedIn profile. He earned a bachelor’s degree in Middle Eastern studies in 1986 and a master’s degree in legislative affairs in 1988, both from George Washington University in Washington.

The Justice Department’s campaign to punish leakers has been unrelenting. This is the sixth criminal leak case opened under the Obama administration and the second involving a former CIA officer and The New York Times. Federal prosecutors claim Jeffrey Sterling divulged classified information to Times reporter James Risen about CIA efforts to thwart Iran’s nuclear ambitions. Sterling is awaiting trial.

“Safeguarding classified information, including the identities of CIA officers involved in sensitive operations, is critical to keeping our intelligence officers safe and protecting our national security,” said Attorney General Eric Holder. “Today’s charges reinforce the Justice Department’s commitment to hold accountable anyone who would violate the solemn duty not to disclose such sensitive information.”

In light of the indictment, CIA Director David Petraeus reminded his agency’s employees of the essential need for secrecy in their work.

“When we joined this organization, we swore to safeguard classified information; those oaths stay with us for life,” he said “Unauthorized disclosures of any sort – including information concerning the identities of other Agency officers – betray the public trust, our country, and our colleagues.””

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Federal Judge: Condoleezza Rice’s testimony at leak trial must be live

November 15, 2011

Politico on November 15, 2011 released the following:

Posted by Josh Gerstein

“Former National Security Adviser and Secretary of State Condoleezza Rice will be required to testify live and in person at the trial of a former Central Intelligence Agency officer accused of leaking top-secret information about U.S. efforts to sabotage Iran’s nuclear program, a federal judge has ruled.

Prosecutors want to tell jurors in the case against ex-CIA officer Jeffrey Sterling about a White House meeting in April 2003 involving then-National Security Adviser Rice, then-CIA Director George Tenet along with New York Times reporter James Risen and then-DC bureau chief of the Times Jill Abramson. Court records indicate At the session, Rice and Tenet pleaded with Abramson and Risen not to publish information Risen had obtained about the CIA effort to give Iran flawed nuclear designs.

Prosecutors asked U.S. District Court Judge Leonie Brinkema to allow them to show the jury talking points Rice used at the session warning of the grave consequences that could flow from publishing details of the CIA operation. However, the prosecution indicated it wanted to show the jury the talking points without calling Rice as a witness.

In a little-noticed order last month, Brinkema rejected that effort, writing that the prosecution’s motion was “denied to the extent that the Government seeks to admit Dr. Rice’s written talking points in place of her testimony.”

Rice, who is on a publicity tour to promote her new book, “No Higher Honor,” did not respond to messages seeking comment for this post. In a written declaration filed in court by prosecutors, Rice said she could not testify that she delivered the still-secret talking points “word for word as written,” but that she “would have adhered closely to” them.

The defense’s position on Rice’s testimony remains under seal pending a classification review. However, the confrontation clause in the Sixth Amendment to the Constitution usually requires that witnesses in a criminal case testify live in the courtroom.

The Times never published Risen’s story. However, he turned it into a chapter for a book he published in 2006, “State of War.” Sterling is accused of violating the Espionage Act by leaking top-secret information about the CIA effort to Risen.

Prosecutors have suggested they may try to make some hay of the fact that the Times agreed to suppress the story, but Risen deemed it appropriate to publish in his book, albeit three years later. Abramson, who was elevated in June to executive editor of the Times, has not commented publicly on the decision about Risen’s story.

If Rice is required to testify at Sterling’s trial, it probably won’t be for a while. A trial date set last month was scuttled at the last minute after prosecutors decided to appeal several of Brinkema’s rulings.

The appeals involve Brinkema’s ruling that Risen need not testify about his confidential sources and, as NPR first reported last week, another decision barring two prosecution witnesses because prosecutors belatedly disclosed information about them to the defense.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Judge OKs secret evidence for CIA leak trial

October 4, 2011

Politico on October 3, 2011 released the following:

By Josh Gerstein

“A federal judge has ruled that prosecutors pursuing a leak case against a former Central Intelligence Agency officer may present evidence to the jury that will not be seen by the public.

U.S. District Court Judge Leonie Brinkema ruled in an order made public Friday that prosecutors may use a controversial procedure known as the “silent witness rule” to present three classified exhibits during the upcoming trial of former CIA officer Jeffrey Sterling. Sterling is set to go on trial later this month in Alexandria, Va. on a ten-count indictment charging him with leaking information about a highly-classified CIA program to New York Times reporter James Risen.

In response to pleas from the White House, Risen’s editors at the Times never published details of the program, which was aimed at undermining Iran’s nuclear efforts by giving that country flawed nuclear designs. However, Risen revealed the program in his 2006 book, “State of War.”

Under the “silent witness rule,” a document is shown to jurors, the defendant, the judge and the jury, but not to the public. Witnesses may refer to the documents in general terms, but do not read from them. The procedure has been used in several trials, but its constitutionality is not firmly established.

Brinkema’s order (posted here) does not provide any rationale for her decision, but tersely indicates that the prosecution will be allowed to use the “silent witness” procedure to present what a prosecution filing describes as “three CIA operational documents, all marked ‘secret,’ relating to the use of telephones.” The judge deferred ruling on a fourth document prosecutors wanted to present through the procedure, a CIA personnel evaluation report for Sterling for 1993.

All four documents were recovered in an FBI raid of Sterling’s home in Missouri in 2006. CIA rules prohibit employees from taking classified documents home without express permission, prosecutors contend.

Sterling is not charged with leaking information from the four documents to Risen. Prosecutors want to show that it is likely that Sterling had similar documents at home that he leaked to or discussed with Risen.

Prosecutors have argued that denying the public access to the evidence is necessary to safeguard national security secrets and will be of little significance since the prosecution’s questioning about the documents is likely to last only five to ten minutes. (Their motion is posted here.)

Sterling’s defense team has been hostile to the proposal. “Use of the silent witness rule in this case would seriously prejudice Mr. Sterling and totally eviscerate his right to a fair trial,” defense lawyers Ed MacMahon Jr. and Barry Pollack wrote in a recent court filing (posted here).

Press advocates have also expressed concern about the use of the technique. However, none has intervened in Sterling’s case.

The issue was apparently argued in closed-door hearings held by Brinkema in recent weeks.

One twist in the judge’s order could complicate the issue further. She denied a prosecution request to make some deletions in the documents. If the CIA is skittish about showing the entirety of the documents to jurors, prosecutors might have to drop the evidence altogether.

In another ruling in the same order, Brinkema denied the defense’s request to call a Russian nuclear scientist key to the CIA’s attempt to snooker the Iranians. She also offered no explanation for that decision.

Sterling’s trial is set to open October 17. Brinkema ruled in July that Risen would not have to identify his confidential source or sources at the trial. However, prosecutors have asked her to reconsider that ruling.”

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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Federal Prosecutors make case (again) for Risen testimony

August 27, 2011

Politico on August 26, 2011 released the following:

“Federal prosecutors filed a motion Friday asking District Judge Leonie Brinkema to clarify, and possibly reconsider, her July 29 ruling that a New York Times reporter would not be required to reveal confidential sources during the espionage trial of former CIA officer Jeffrey Sterling.

In the motion, the government’s lawyers again argued that James Risen’s testimony about the sources for his reporting on CIA efforts to undermine Iran’s nuclear program is critical to making their case against Sterling, who’s charged with illegally revealing CIA operations to Risen.

In the July ruling, Brinkema wrote: “The government must establish that there is a compelling reason for the journalist’s testimony and that there are no other means for obtaining the equivalent of that testimony.”

The government’s motion appears to be just that — a further explanation of why Risen’s testimony is necessary. Steven Aftergood at the Federation of American Scientists has a good recap of the new motion here.”

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL

Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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