The trial of Jeffrey Sterling, the former CIA officer charged under the Espionage Act with leaking top secret information to the New York Times--about a botched CIA operation to undermine Iran's nuclear weapons program--was abruptly postponed after the government announced its intent to appeal a judge's ruling striking two witnesses. Josh Gerstein wrote about it here.
Maybe prosecutor William Welch learned one of the lessons a different judge imparted on him in a different Espionage Act prosecution of a different whistleblower, former NSA official Thomas Drake. As Judge Bennett told Welch at the close of the case against Drake:
[W]ith respect to your motion to dismiss the indictment . . . when we had the hearings under the Classified Information Procedures Act . . . certain rulings were made, some in favor of the government, some not . . . the government could appeal any decision I made with the appellate court, correct? . . . [But instead] the government drops the whole case.
But apparently Welch hasn't learned the big lesson: quit prosecuting whistleblowers as spies under the Espionage Act when their only "crime" was embarrassing the government.
Pre-trial appeals of a ruling about witnesses are rare.
But so are prosecutions under the Espionage Act against whistleblowers for the alleged mishandling of classified information.
Pentagon Papers whistleblower Daniel Ellsberg's was the first such case. Sterling's is set to be the 4th man in our country's history to go to trial on such charges. (Whistlebloweers Shamai Liebowitz pleaded guilty. At the last minute, the government dropped all 10 felony counts against Drake in exchange for his pleading guilty to a minor misdemeanor.)
During the Classified Information Procedures Act (CIPA) pre-trial hearings, a judge can impose sanctions, which can include
a) suppressing prosecution evidence
b) barring certain testimony
c) dismissal of the case
Here, Judge Brinkema appears to have chosen (b) by barring two prosecution witnesses. If that occurred in the CIPA context, the government gets an immediate appeal--a path it didn't take when it received adverse rulings in the Drake case. But if Brinkema's ruling related to other issues, the right to appeal is questionable.
While I'm glad to see that Welch has learned one lesson from the botched, overzealous prosecution of Thomas Drake, he seems to have missed the big picture. Putting whistleblowers on trial in stale Bush-era "leak" cases for revealing information that embarrassed the government, and using the heavy-handed Espionage Act, is wrong.
In Drake's case, Judge Bennett stated correctly:
I think the chronology here would cause many citizens, Mr. Welch, regardless of their philosophy and their viewpoints on these matters, I think the average American citizen would take great caution to say, okay, let me get this straight, my home is searched, and three years later I'm finally indicted, and then a year after that the government drops the whole case. That's four years of hell that a citizen goes through.
Welch still hasn't learned that lesson. Reporter James Risen's book, a chapter of which is alleged to be based on "leaks" by Sterling, came out in 2006. It is not alleged to have done any harm to the U.S. (a prong of the Espionage Act.) What it did do was embarrass the government by exposing that in a botched program called MERLIN (as in the magician), we gave faulty nuclear designs to Iran--but the design flaw was so obvious that the Iranians detected it--and meanwhile we accidentally turned over valid nuclear design information.