22 December 2010, US District Court, Eastern Distict VA: US v. Sterling (Indictment) (PDF)
http://www.nytimes.com/2011/01/07/us/07indict.html
January 6, 2011
Ex-C.I.A. Officer Named in Disclosure Indictment
By CHARLIE SAVAGE
WASHINGTON -- The Justice Department on Thursday announced the indictment of a former Central Intelligence Agency officer who is accused of disclosing classified information to a reporter, in the latest example of a crackdown by the Obama administration on leaking to journalists.
The former officer, Jeffrey Alexander Sterling, who worked at the C.I.A. from 1993 until he was fired in 2002, was arrested Thursday in St. Louis. He was indicted Dec. 22 on charges that he disclosed restricted information to a journalist about a clandestine program intended to impede the progress of unnamed countries' weapons capabilities.
While the indictment does not identify [1] the journalist or the intelligence operation, its details make clear that prosecutors believe Mr. Sterling was talking to James Risen, a reporter for The New York Times. Mr. Risen wrote about a C.I.A. attempt to disrupt Iranian nuclear research in his 2006 book, "State of War: The Secret History of the C.I.A. and the Bush Administration."
That material did not appear in The Times. The indictment says that the journalist worked on an article about the program in 2003, but the newspaper decided not to publish it after government officials told editors that such a disclosure would jeopardize national security. But Mr. Risen devoted a chapter of his book to the program, which he portrayed as a flawed operation that may have helped the Iranians gain nuclear technology. He was twice subpoenaed [2] to divulge his source; once by the Bush administration, and, after the first grand jury investigating the case expired, again last year by the Obama administration.
Mr. Risen declined to comment about whether Mr. Sterling was his source, but said that he had provided no assistance to prosecutors. Judge Leonie M. Brinkema of Federal District Court in Alexandria, Va., quashed the subpoena of him in November, he said.
"I never testified and never provided the government with any information," he said. "I never met with prosecutors and never reached any agreement with them."
Mr. Risen's lawyer, Joel Kurtzberg, confirmed his account.
Gregg Leslie, the legal defense director for Reporters Committee for Freedom of the Press, called the quashing of the federal grand jury subpoena in a criminal investigation "truly unusual," saying he knew of no other such instance.
The indictment of Mr. Sterling is the fifth case during the Obama administration in which a current or former government official has been charged in connection with a leak investigation.
"The law does not allow one person to unilaterally decide to disclose that information to someone not cleared to receive it," said Neil H. MacBride, the United States attorney for the Eastern District of Virginia, where Mr. Sterling was indicted.
Mr. Risen's book describes how in February 2000, the C.I.A. sent a Russian nuclear scientist -- who had defected to the United States -- to give plans for a nuclear bomb-triggering device to an Iranian official. The C.I.A. had hidden a flaw in the designs.
By Mr. Risen's account, the Russian scientist immediately spotted the flaw, but the agency insisted on proceeding with the operation. So the scientist decided on his own to alert the Iranians that there was a problem with the designs so that they would take him seriously.
The chapter argues that Iranian scientists may have been able to "extract valuable information from the blueprints while ignoring the flaws." It also says that a C.I.A. case officer, believing that the agency had "assisted the Iranians in joining the nuclear club," told a Congressional intelligence committee about the problems, but no action was taken.
In the indictment, prosecutors say that Mr. Sterling met with two staff members of the Senate Select Committee on Intelligence in March 2003, and disclosed information about the program. The document portrays Mr. Sterling's concerns as inaccurate, saying they were "based solely upon his mischaracterization of a single remark by a participant" in the operation.
Mr. Risen stands by the accuracy of his book, Mr. Kurtzberg said.
Mr. Sterling, who is black, had a stormy history with the C.I.A. He accused the agency of racial discrimination and later tussled with it over permission to publish his memoirs. The indictment says he harbored "anger and resentment" against the agency and leaked as "retaliation." In March 2002, Mr. Risen wrote a newspaper article [3] about Mr. Sterling's discrimination case.
In making their case against Mr. Sterling, prosecutors provided details in the indictment of phone calls between the residences of Mr. Sterling and the reporter and quoted from e-mails sent between their accounts.
Justice Department rules [4] say prosecutors may seek subpoenas of journalists only if the information they are seeking is essential and cannot be obtained another way, and the attorney general must personally sign off after balancing the public's interest in the news against the public's interest in effective law enforcement.
A Justice Department spokesman declined to comment about why Attorney General Eric H. Holder Jr. approved seeking a subpoena of Mr. Risen in light of the fact that prosecutors could obtain an indictment of Mr. Sterling without it.
[1] http://documents.nytimes.com/indictment-of-jeffrey-a-sterling
[2] http://www.nytimes.com/2010/04/29/us/29justice.html
[3] http://www.nytimes.com/2002/03/02/us/fired-by-cia-he-says-agency-practiced-bias.html
[4] http://cfr.vlex.com/vid/regard-toll-interrogation-indictment-19679461