Leak Prosecutions Inch Forward

11.22.11 | 2 min read | Text by Steven Aftergood

The three ongoing prosecutions under the Espionage Act of individuals who allegedly “leaked” classified information to the press are slowly moving forward.

Prosecutors will present their opening brief to an appeals court in the case of Jeffrey A. Sterling, a former CIA officer who is accused of leaking classified information to author James Risen, on January 13, 2012, according to a proposed briefing schedule that was filed yesterday.

The prosecution of Sterling has been suspended in lower court while the government appeals several court rulings that it considers unfavorable.

Specifically, the government wants to overturn the court’s finding that Mr. Risen is protected by a “reporter’s privilege” and cannot be compelled to identify his source.  Prosecutors also want to reverse what they described as an order relating to the Classified Information Procedures Act (CIPA) that the identity of certain government witnesses must be disclosed to the defendant and the jury.  Finally, they are appealing an order that eliminated two potential government witnesses because prosecutors failed to disclose adverse information about the witnesses in a timely manner, a November 9 docketing statement said.

Interestingly, defense attorneys deny that the second issue involving disclosure of witness identities is a CIPA issue that can be appealed at this stage.  They point out that “No order has been entered by the District Court allowing the defendant, over the Government’s objection, to disclose any classified information.  No sanctions have been imposed upon the Government for refusing to allow for the disclosure of any classified information by the defendant in any manner.”  Therefore, “Mr. Sterling does not agree that this appeal raises any issues appealable under CIPA.”

It was also announced yesterday that the case of Army Private Bradley Manning, the suspected WikiLeaks source, will proceed to what is called an Article 32 hearing on December 16 at Fort Meade, Maryland.

“The primary purpose of the Article 32 hearing is to evaluate the relative strengths and weaknesses of the government’s case as well as to provide the defense with an opportunity to obtain pretrial discovery,” according to Private Manning’s attorney, David E. Coombs. “The defense is entitled to call witnesses during the hearing and to also cross examine the government’s witnesses.”

The other ongoing leak prosecution under the Espionage Act is that of former State Department contractor Stephen Kim, who is accused of leaking classified information to Fox News reporter James Rosen.  The prosecution of Mr. Kim is still in an early stage of pre-trial discovery, according to a November 15 status report.