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Scant Direct Evidence in CIA Leak Trial|as Prosecution Prepares to Rest

ALEXANDRIA, Va. (CN) - With the government expected to rest its case Wednesday against a suspected source of CIA leaks, the first week of former agent Jeffrey Sterling's trial has yet to involve any direct evidence.

Five days of witness testimony has primarily focused on the operational success and classified nature of "Operation Merlin," a CIA attempt to foil Iran's nuclear program, before New York Times reporter James Risen castigated it as a failure in his 2006 book, "State of War: The Secret History of the CIA and the Bush Administration." The government alleges that Sterling gave Risen the information about Operation Merlin, or Classified Program No. 1, in retaliation for losing a racial discrimination lawsuit against the CIA.

The government tried several times over the course of six years to subpoena testimony from Risen on the identity of his anonymous "State of War" source, but Risen adamantly refused to identify any unnamed sources.

Just the week before trial began, the government decided once and for all it would not call Risen to the stand.

Prosecutors on Tuesday produced copies of three classified documents seized from Sterling's home on Oct. 5, 2006. Martha Lutz, chief of the CIA's Litigation Support Unit, served as the government's expert witness to verify the authenticity of these documents, which were passed to jurors under cover sheets with the word "Secret" printed in red block letters.

Possession of classified information outside of secure CIA facilities is not allowed, as many CIA witnesses have testified throughout the trial.

Sterling's defense attorney Edward McMahon could not question Lutz about the specific content of the classified documents, but did manage on cross-examination to have her confirm that the documents referenced rotary phones and were from February 1987, predating Sterling's CIA career or the start of Operation Merlin. One of Sterling's performance reviews was also recovered from his residence, but it was from when he was still a trainee in 1993.

Deleted fragments of emails and a reference to Merlin on a computer's hard drive were also presented as evidence Tuesday afternoon, but neither the government nor its expert computer witness specified where the computer came from or to whom it belonged.

Reju Kurain, an information technology specialist for the FBI, explained to the court that when a person deletes information from the allocated space on a computer hard drive, the information is scattered across the hard drive's unallocated space, but it is not immediately lost. On the computer he analyzed for this investigation, Kurain found one reference to Merlin and some scattered email messages. An email address belonging to Sterling and an email address belonging to James Risen were found in the scattered, deleted information, as well as two one-line messages.

"Can we get together in early January? -Jim"

"I want to call today. I'm trying to write the story. -Jim"

Prosecutor Dennis Fitzpatrick linked the first email to a date in December 2003 that appeared on the hard drive, but Kurain testified that, because deleted information is randomly scattered throughout the drive's unallocated space, there was no way he could say whether one piece of information is connected to another.

In other words, it is uncertain whether Risen's email address, the message signed Jim, Sterling's email address and the Dec. 23, 2003, date were all part of one email file that was deleted. Kurain also acknowledged under McMahon's questioning that keyword searches for "State of War," "fire set" and "New York Times" yielded no results.


Though the attorneys stipulated that the FBI received a computer from a couple named John and Laura Dawson in August 2006 as part of its investigation into the leak, they neither identified the Dawsons nor confirmed that the computer given to the FBI by the Dawsons was the computer to which Kurain testified.

The government called Vicki Divoll, a former staff member of the U.S. Senate Select Committee on Intelligence (SSCI), to testify about a 2003 meeting with Sterling in which he aired his concerns that Operation Merlin was poorly executed.

Merlin, the project's pseudonymous namesake, was a Russian scientist-turned-CIA asset tasked with the mission of selling Iranians intentionally flawed nuclear fire set plans that the CIA hoped would distract its nuclear-development efforts.

Divoll said Sterling told her and another staffer, Donald Stone, at the meeting that the planted flaws were too obvious, and they would likely have been detected quickly and used to aid Iran's nuclear progress.

For Sterling to express concerns about such a sensitive operation was a big deal, Divoll testified.

"This was one of the topics that was so sensitive you didn't even want to talk about it with the person in the next office," Divoll said.

Sterling allegedly told the staffers at this meeting that current events led him to speak out.

"It was a very cordial meeting," Divoll said.

She added that Sterling "did not come across as a nut," but seemed to expect the staffers to take action on his concerns. Sterling did not give any indication that he was planning any drastic measures, she added.

Stone recalled Sterling's reaction at the end of the meeting slightly differently, testifying that Sterling and his lawyer "said something needs to be done quickly or they were going to do something else." Based on past experience, Stone said he took that to mean they were going to go to the press.

Stone and Divoll passed Sterling's comments on to Bill Duhnke, Republican staff director for the committee, who also reported it to committee staff member Lorenzo Goco.

Goco testified that, after looking into the operation, he didn't give much credence to Sterling's claim. Duhnke was conspicuously absent from the witness stand, and a question from the defense hinted at why.

"Are you aware that Mr. Duhnke did not cooperate with the FBI investigation?" defense attorney Barry Pollack asked Stone.

The government immediately objected to the question, and U.S. District Judge Leonie Brinkema instructed the jury to strike the question from their memory.

Divoll confirmed on cross-examination that, during an interview with the FBI, she stated that she would not be surprised if Duhnke leaked information to the press if it furthered his self interest. That was something she had heard third- or fifth-hand, she said.

Duhnke fired Divoll for her own information leak. After the Sterling issue, Divoll worked particularly hard on getting a provision struck from a bill, she testified, and she succeeded. The striking down of the provision occurred in a closed session meeting, but Divoll said the legislative information was not classified. She promptly shared the result with a member of the judiciary committee, and, when the information appeared in a New York Times article co-authored by James Risen, Divoll was fired from SSCI.

Julia Perriello, a local hairdresser who was one of the government's last witnesses on Tuesday, stood out among the many CIA and government witnesses thus far called to the stand.

Perriello cuts FBI Special Agent Ashley Hunt's hair, and said Hunt noticed her reading "State of War" one day in 2006. The government used Perriello's testimony to demonstrate that residents of the eastern district of Virginia did read "State of War," although Perriello could not recall whether she'd purchased the book in Virginia or Maryland. Establishing that the U.S. District Court for the Eastern District of Virginia is the proper venue for Sterling's trial has been a point of contention between the prosecution and the defense.

Other witnesses for Tuesday included David Shedd, current acting director of the Defense Intelligence Agency and chief of staff for the Director of National Intelligence when "State of War" was published; Michael Sheehy, a former member of the House Permanence Select Committee on Intelligence who met with Sterling about his alleged mistreatment by the CIA; Kim McManus, who works in the investigations department of the CIA's Office of Inspector General; and Gayle Scherlis, former security officer for the CIA.

Scherlis' testimony resumes Wednesday.

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