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By
JOSH GERSTEIN
2/24/11
Federal investigators trying to find out who leaked information about a
CIA attempt to disrupt
Iran’s nuclear program obtained a New York Times reporter’s three private credit reports, examined his personal bank records and obtained information about his phone calls and travel, according to a new court filing.
The scope and intrusiveness of the government’s efforts to uncover reporter James Risen’s sources surfaced Thursday in the criminal case of James Sterling, a former CIA officer facing federal criminal charges for allegedly disclosing classified information. Sterling is accused of giving Risen details about what Risen describes as the CIA’s plan to give Iran faulty
nuclear blueprints, hoping to temporarily thwart the regime’s ambitions to build an atomic bomb.
n a motion filed in federal court in Alexandria, Sterling’s defense lawyers, Ed MacMahon Jr. and Barry Pollack, reveal that the prosecution has turned over “various telephone records showing calls made by the author James Risen. It has provided three credit reports—Equifax, TransUnion and Experian—for Mr. Risen. It has produced Mr. Risen’s credit card and bank records and certain records of his airline travel.” The revelation alarmed
First Amendment advocates, particularly in light of
Justice Department rules requiring the attorney general to sign off on subpoenas directed to members of the media and on requests for their phone records. And Risen told POLITICO that the disclosures, while not shocking, made him feel “like a target of spying.”
“We’ve argued that I was a victim of harassment by the government. This seems to bolster that,” Risen said. “Maybe I should ask them what my credit score is.”
Sterling’s attorneys and a Justice Department spokeswoman declined POLITICO’s request for comment.
The government’s interest in Risen’s sources for his 2006 book, “State of War,” has been known since 2008. In particular, investigators have zeroed in on a chapter which details what Risen describes as a botched CIA effort to trip up Iran’s nuclear program. The scheme involved using a
Russian defector to deliver the faulty blueprints to the Iranians, but the defector blew the CIA’s plot by alerting the Iranians to the flaws — negating the value of the program, and perhaps even advancing Iran’s nuclear ambitions.
Risen was twice subpoenaed to appear before a grand jury to testify about his sources, but the first grand jury dissolved before a judge acted on Risen’s motion to quash the subpoena. Last year, U.S. District Court Judge Leonie Brinkema sided with Risen and quashed the second subpoena, though details of her reasoning haven’t been made public.
Soon after that decision, Sterling was indicted.
First Amendment advocates said the Justice Department’s use of business records to find out about Risen’s sources was troubling. Those records, they argue, could potentially expose a wide array of Risen’s sources and confidential contacts — information that might fall beyond the initial investigation that led to Sterling’s indictment.
“To me, in many ways, it’s worse than a direct subpoena,” said Jane Kirtley, a University of Minnesota law professor and former director of the Reporters Committee for Freedom of the Press. “Third-party subpoenas are really, really invidious…. Even if it is targeted, even if they’re trying to just look at the relevant stuff, they’re inevitably going to get material that exposes other things.”
Kirtley also said journalists often aren’t notified when the government asks telecom companies, banks or other service providers for their records.
Asked how journalists could credibly complain about such techniques when most also refuse more direct demands for information about their sources, Kirtley said reporters who become the focus of determined investigators face a “Hobson’s choice.”
“It’s the same thing as if the cops go to someone’s office with a search warrant and say, ‘Give us the information we want and we won’t tear the place apart,’” she said. “If you say ‘tear the place apart,’ all kinds of confidential information that you don’t think the police should have is going to end up in their hands.”
Lawyers tracking the case believed that both former Attorney General Michael Mukasey, who was part of the Bush administration, and current Attorney General Eric Holder gave the go-ahead to subpoena Risen. Under Justice Department rules, the attorney general must approve a subpoena for a journalist and grant permission to obtain “telephone toll records of a member of the news media.”
It’s unclear whether the records investigators obtained about Risen’s phone calls came from his billing records or from records of incoming calls to Sterling or others. The Justice Department guidelines for investigations affecting journalists don’t appear to address travel, bank or credit card records. Risen said the government never notified him that they were seeking his phone records. But he said he got an inkling in 2008 that investigators had collected some information about his calls.
“We heard from several people who had been forced to testify to the grand jury that prosecutors had shown them phone records between me and those people—not the content of calls but the records of calls,” he said. “As a result of what they told us, my lawyers filed a motion with the court as asking how the Justice Department got these phone records and whether or not they had gotten my phone records.”
“We wanted the court to help us decide whether they had abided by the attorney general’s guidelines,” Risen said. “We never got an answer from the court or the government.”
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Ex-CIA spy arrested in St. Louis to be released on $10,000 bondBY TODD C. FRANKEL www.STLtoday.com Tuesday, January 25, 2011
A former CIA agent from O'Fallon, Mo., recently indicted on charges of leaking government secrets was ordered released today on $10,000 bond by a federal judge in Virginia, despite prosecutors claiming the former agent must be detained to prevent more disclosures.
Jeffrey A. Sterling, 43, was arrested Jan. 6 in St. Louis on 10 counts, including obstruction of justice and unauthorized disclosure of national security information. He is accused of leaking classified documents and information about an agency program to a New York Times reporter. It is believed Sterling is accused of disclosing details of a ruse to thwart Iran's nuclear weapons program.
He has pleaded not guilty to the charges.
At a hearing today in U.S. District Court in Virginia, where Sterling was extradited earlier this month, a judge ordered him released on the $10,000 bond. Sterling also must surrender travel documents and stay in the Washington, D.C., metro area.
READ MORE
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Life away from CIA still tangled, lonely for indicted ex-spy
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O'FALLON, MO. • The spy came in from the cold nearly a decade ago. He seemed to be adjusting well to his new life, a regular life, one lived out in the open.
Jeffrey A. Sterling no longer needed to tell people, including his mother in Cape Girardeau, he worked for the U.S. State Department when, in fact, he had been employed by the Central Intelligence Agency.
Sterling, now 43, settled down in what once might have served as ideal cover: a small, neat home in a subdivision of small, neat homes, all beige siding and perfect lawns in this fast-growing St. Louis suburb. He got married. He got a job as a health care fraud investigator. He spoke at conferences. He won awards for his work. He started using social media services like Twitter and Facebook, opening up in ways likely unimaginable in his previous work.
He shared his love for the L.A. Lakers and frustration with the St. Louis Cardinals. He liked cigars. He liked riding his bicycle. He was working on a science fiction screenplay.
It is a journey made by others who have left the CIA's clandestine service. And Sterling seemed to have found his place in a world free of cloaks and daggers.
But his journey was different. Sterling left the CIA alone, with nothing, after becoming the first black case officer to sue the CIA for racial discrimination. He started over in St. Louis. Now he's been charged with leaking classified secrets to a reporter.
And this has people sorting through the details of Sterling's life to try divining just who he is, as though he were a spy all over again.
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On Jan. 6, the workaday life Sterling built for himself after the CIA fell apart.
He was at work in downtown St. Louis, at the health insurer Wellpoint Inc., when federal agents arrested him. He was charged with 10 counts, including obstruction of justice and unauthorized disclosure of national security information.
Sterling's arrest shows how the government is moving with new urgency to block the flow of secrets to the public, said Steven Aftergood, an expert on government secrecy at the Federation of American Scientists. This is an "unprecedented" fifth prosecution during President Barack Obama's administration for unauthorized leaks of classified information, more than all previous administrations put together.
"He's in an unenviable position," Aftergood said.
Sterling has pleaded not guilty to the charges. He was extradited to federal court in Virginia, home of the CIA. His lawyer is Edward MacMahon Jr., known for representing terrorism suspects such as Zacarias Moussaoui, convicted for his role in the Sept. 11 attacks.
MacMahon questioned why Sterling, who believed his CIA days were behind him, was being prosecuted now.
"If Sterling was such a dangerous person, how come they left him on the street for so long?" MacMahon said. "He's a good American. He's a loyal American. He never put a single person at risk."
The indictment leaves out some particulars, but it is clear prosecutors believe Sterling talked with New York Times reporter James Risen about a secret operation to thwart Iran's nuclear weapons program. Risen wrote about the plot in his 2006 book "State of War: The Secret History of the C.I.A. and the Bush Administration."
The secret operation went by the code name Merlin. It was a classic spy tale. And, as portrayed in Risen's book, a blunder.
A Russian nuclear scientist on the CIA payroll was supposed to pose as a greedy scientist offering the Iranians technical blueprints for a nuclear bomb. The CIA had poisoned the blueprints with a tiny flaw. The hope was the Iranians would spend years chasing a broken design, delaying their nuclear ambitions.
That's not how it went, according to Risen's book.
The Russian scientist spotted the flaw. The CIA agent handling him — and every indication from the indictment is that this was Sterling — had misgivings about pushing on. His superiors brushed off the concerns. And the scientist flew alone to Vienna, Austria, to deliver the plans to Iranian agents, slipping in a handwritten note alerting them to the ruse.
Risen wrote the CIA operation may have given the Iranians an unintended helping hand in going nuclear. But prosecutors say Sterling "falsely characterized" facts to make the mission appeared doomed.
Aftergood noted the Justice Department could have decided to not pursue the disclosure — it amounted to a single chapter in a 250-page book and not much else. "They could've said, 'Let's put it behind us,'" Aftergood said. "But instead they said, 'Let's go all in.'"
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Earlier this month, Sterling walked stiffly into the federal courtroom in St. Louis, hands and feet shackled, two U.S. marshals by his side. Sterling wore a bright orange hooded sweatshirt over orange prison garb, made all the more glaring by the sea of dark jackets surrounding him. He limped as he moved, evidence of recent knee surgery. He was guided to a leather chair, a seat that a marshal earlier had inspected for contraband by flipping it over, just as she had run her hands along the bottom lip of the conference table now in front of him.
Sterling sat next to his attorney. The two men talked a little as they waited for the judge. But Sterling was mostly silent. His handcuffs off, he laid his large hands flat on the dark wood table. He looked younger than his age, his athletic build filling the chair and his brown hair closely cropped. His face, bearing a handsome weariness, showed no emotion. Aside from his orange clothes, he looked like the lawyer he was.
He then let his head fall to his chest, as though lost in thought. He did not appear to glance over at the 40 people in the back of the courtroom — friends, family, media and curious court workers. His wife, Holly, sat in the front row, fighting back tears and holding to her lips a necklace with a ring on the end.
The hearing was brief and routine, a last stop before he was flown to Virginia. The case is expected to take many months, if not longer. Prosecutors have asked that Sterling not be released from prison. In court filings, they worry Sterling will turn to his old CIA tradecraft to disclose more classified government details.
It was like Sterling had never left that world of secrets and spies. His small, neat house in the suburbs had provided him with only the false cover of a new life.
"It can be a very lonely world in a covert environment," said a person familiar with the case who asked not to be named, "especially when you fall outside of it."
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