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Friday, February 23, 2024 | Back issues
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In CIA Leak Trial, Feds See Smoking Gun in Call Records

ALEXANDRIA, Va. (CN) - The fate of a former CIA agent accused of leaking details of a classified operation to a journalist will be in the hands of a jury by Thursday's end.

It has been 12 years since the CIA first learned that someone had compromised its sensitive mission to deliver intentionally flawed nuclear fire-set plans to Iran, but the trial against former CIA agent Jeffrey Alexander Sterling is winding down after just over a week of testimony from clandestine agents and forensic experts.

By the time New York Times reporter James Risen approached the agency with questions about so-called Operation Merlin in 2003, Sterling had been off the job for a year, fired amid his lawsuit for alleged racial discrimination.

Though Condoleezza Rice, then national security advisor, stepped in to quash Risen's story, the reporter devoted a chapter to Operation Merlin, also known as Classified Program No. 1, in his 2006 book "State of War: The Secret History of the CIA and the Bush Administration."

Phone records and email data show that Sterling had plenty of contact with Risen, the FBI agent in charge of the case testified Wednesday, while defense attorneys hammered home that such records offer no proof of what the two discussed.

Risen repeatedly refused the government's attempts to have him reveal his unnamed sources for "State of War," and prosecutors ultimately decided to proceed to trial without the reporter's testimony. As the government wrapped up its case in Alexandria federal court Wednesday, it relied on FBI Special Agent Ashley Hunt to convince the jury once and for all that Sterling was the source of Risen's information.

Hunt collected Sterling's email data three times in the course of her investigation­ - April, July and October of 2006. There wasn't much difference in volume between the three data collections, Hunt testified, but one email that appeared in the initial search disappeared before the second and third searches.

An email sent from one of Sterling's email addresses to Risen's New York Times email on March 10, 2003, provided a link to a CNN news story about the advancement of Iran's nuclear program.

"I'm sure you've already seen this, but quite interesting, don't you think? All the more reason to wonder. -J"

Operation Merlin sought to undermine Iran's nuclear program by covertly providing it with faulty designs, but Risen learned from his unnamed sources that the mission was a failure because the flaws in the Merlin design were so obvious that Iranian engineers could fix them easily to wind up with a functioning weapon. Sterling had once been a case officer to the Russian scientist whom the CIA assigned to sell the faulty blueprints.

The former agent received a subpoena on June 16, 2006, to testify before a grand jury and provide any documents in his possession that could help the FBI in its investigation of the Operation Merlin leak. When Sterling's email data was again collected in July, Hunt said the email referencing the Iranian nuclear program had disappeared. Sterling's indictment includes an obstruction of justice charge for the deletion of that email.

But defense attorney Edward McMahon pointed out that the subpoena Hunt served to Sterling did not include any reference to communication between him and Risen, so there was no reason for Sterling to believe he needed to keep those emails.

"When drafting this, no one thought to put, 'Preserve any communications with James Risen?'" McMahon said.


One May 2004 email that Risen sent Sterling said: "I am sorry if I have failed you so far, but I really enjoy talking to you and I would like to continue. -Jim"

Hunt built a timeline around the emails and records of 47 phone calls that occurred between Sterling and Risen. During her testimony, the agent drew connections between the timing of the emails and other events. The email about the Iranian nuclear program was sent five days before Sterling went to the Senate Select Committee on Intelligence (SSCI) to tell staffers he felt Operation Merlin had been mismanaged. A phone call from Sterling's residence to Risen's residence occurred about two weeks after the CIA rejected Sterling offer to settle his discrimination suit for $200,000.

None of the information found in the emails between Sterling and Risen was classified, Hunt acknowledged upon cross-examination, and she could not testify as to what the messages mean.

"The communication I did find, I'm not sure to what they're referring," Hunt said.

McMahon blasted the prosecution for both failing to prove that Sterling intended to obstruct an investigation by deleting an email, and failing to prove that the email's deletion occurred between April and June, before he received his subpoena.

Much of the email data and an empty deleted file named Merlin were recovered from a computer Sterling used in 2003 and 2004 while he was living in the home of John and Laura Dawson in Missouri, for whom he served as caretaker to their granddaughter.

Laura Dawson's father, Howard Gilby, was the only witness whom the defense called to the stand. The computer Sterling used originally belonged to Gilby, he testified, and he used it for his construction business. Gilby said he tried out a lot of software programs, and one of them was a scheduling program called Merlin.

"I just remember the name because it's a catchy name," Gilby testified.

Gilby said he had tried to delete anything that was on that computer before he gave it to his daughter, who subsequently allowed Sterling to use it.

On cross-examination, Gilby said that he had not used the computer to send emails to James Risen at the New York Times.

In 2003, Hunt wrote in her investigation notes that the most likely source of the Operation Merlin leak was a SSCI staff member, the agent testified.

A specific incident early on then led Hunt to direct her investigative attention, she said.

After Risen's contact with the agency already tipped it to the fact that Operation Merlin's secrecy had been compromised, the CIA told Hunt about a call it received from attorney Mark Zaid on Feb. 24, 2003, she said.

Zaid had told the agency that a former client of his had voiced concerns over a nuclear mission and threatened to go to the press, according to Hunt's testimony. The attorney later confirmed that his client was Sterling, whom he was representing in his discrimination suit.

Risen's account of Operation Merlin in "State of War" matches Sterling's timeline as the asset's case officer, and Risen puts the case-officer character in a highly favorable light, Hunt testified. Combined with Sterling's potential motive as a disgruntled employee, Hunt said that was enough to make Sterling her prime suspect.

Former CIA security officer Gayle Scherlis testified that Sterling refused to sign his final secrecy agreements when he left the agency's employment.

She said she still reminded him that he was still bound by the agreement he signed when he began working for the agency.

The jury will have one less charge to consider when it begins deliberation Thursday. U.S. District Judge Leonie Brinkema granted a defense motion to dismiss a count of mail fraud against Sterling, stating that the fact that "State of War" was shipped over state lines was not enough to justify mail fraud.

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