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Sterling Says Testimony on ‘Classified’ Info is Harmless

(CN) - On the eve of a sudden decision to postpone trial, former CIA Agent Jeffrey Sterling filed several highly redacted motions, primarily focused on his plan to use classified information to fight charges that he leaked defense secrets to The New York Times.

In a brief docket entry, the court canceled the jury trial, which was scheduled to begin Oct. 17. U.S. District Judge Leonie Brinkema provided no information beside the elimination of two witnesses, leading to a government appeal.

Days before the order, Sterling notified the court that his expert witness, retired Col. Patrick Lang, a former Green Beret and senior intelligence officer, will use classified information while testifying as to whether there is any national defense information improperly set forth in Chapter 9 of "State of War," a 2006 book by New York Times reporter James Risen. Chapter 9 discusses a CIA attempt to have a former Russian scientist pass on fake and intentionally flawed nuclear blueprints to Iran.

In his declaration, Lang says, "It is my opinion that the only potential damage suffered in the U.S. government as a result of the publication of Chapter 9 of 'State of War' is to the reputation of the CIA as intelligence organization. It is my opinion that no foreign government, specifically Iran, gained any benefit whatsoever."

Last month the government sought to preclude Lang's testimony. It argued that, to prove information is relevant to national defense, it need only prove that Sterling reasonably believed it was possible the information he gave to Risen could be used by enemies of the United States.

Sterling defended his expert's proposed testimony in an opposition brief and supplemental opposition. "The fact that the disclosure did not actually harm the United States tends to make it more likely that it would not have reasonably been believed to be the type of information that could do so," he wrote.

He also plans to characterize the Iran plan as "poor tradecraft, and its exposure as such is merely embarrassing to the government," according to the brief.

Sterling argued that "Mr. Lang should be allowed to use the contemporaneous records generated by the CIA to describe its own operation. These are the facts and he is required to rely on them."

A reply in support of his motion asked Brinkema to strike the government's expert notice for failing to identify its experts.

The government argued that national security justifies incomplete disclosures about its witnesses, but Sterling objected that he "cannot investigate the background of classified witnesses without violating the protective order, and cannot thus confront the witnesses in the same manner as the government surely will try to do with Mr. Lang."

Sterling reiterated his request to subpoena Human Asset No. 1 in a separate motion. Human Asset No. 1 is believed to be a CIA agent intimately involved in the CIA's attempt to transmit flawed nuclear blueprints to Iran.

In his brief, Sterling claimed that there are portions of Chapter 9 that "detail actions about which only Human Asset No. 1 had first-hand knowledge, e.g. 'I'm not a spy, he thought to himself, I'm a scientist. What am I doing here?'" (Emphasis in original.)

Sterling asserted that his right to develop a defense entitles him to question Human Asset No. 1., and that he "takes little comfort in the government's assertion that 'there is no such evidence suggesting Human Asset No. 1 and Mr. Risen have ever been in contact.'"

Sterling also opposed several classified documents found at Sterling's house with a search warrant in 2006. The government hopes to admit the documents, one of which is a performance evaluation of Sterling from 1993, into the record.

"These documents are so attenuated from the documents charged in this case that the court simply cannot find any link between them and the charges in this case," Sterling wrote. He claimed that the government seeks only to show that Sterling "is the type of person who would retain classified documents, and thus possessed the classified letter that the government charges contained national defense information."

"The government cannot argue that Mr. Sterling possessed these documents so he must have given national security information to Mr. Risen. This is a baseless non-sequitur," his brief alleges.

Finally, Sterling again expressed his opposition to the "use of the silent witness rule in this case under any circumstances," and asserted that depriving him "of a public trial on this record is not justified."

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