Government Still Hasn’t Cleared One of Jeffrey Sterling’s Appellate Lawyers

Update, 12/13: Sterling’s team was finally cleared in the days leading up to the December status report deadline. But because of other scheduling issues and the difficulties of working with classified information, his team will not be able to submit their initial brief until February 12, 2016, a year after he was convicted. 

Former CIA officer Jeffrey Sterling appealed his conviction for purportedly leaking information on Project Merlin to James Risen on May 26, before he even reported to prison on June 16. Throughout the summer, the appeal crept along, as most appeals do, in this case, held up in the wait for transcripts from the trial. But in August, it ground to a halt.

Just days after the Fourth Circuit ordered Sterling’s lawyers to submit their first brief on September 28, they revealed that they still hadn’t been cleared to review the Classified Information Protection Act hearings that will apparently be central to his appeal (the delay was caused, in part, by the problems in the electronic filing system revealed by the OPM hack). By October 1, William Trunk had been informed he was eligible for clearance, but needed to undergo indoctrination. That didn’t happen until November 2, the day his lawyers were due to submit a second status report on the status of their clearance. And Lawrence Robbins, Sterling’s other appellate attorney, still hadn’t heard anything about his clearance by that day.

I get that this process sometimes takes a long time. But Sterling has already served almost 5 months of his 42 month sentence, and the government ultimately controls this clearance process.

I’ve heard indications that the government has similarly stalled or limited clearances of already-cleared lawyers in Gitmo cases, so it is not unreasonable to ask whether the delay is an intentional stall.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. orionATL says:

    of course the delay is intentional, and likely designed to increase the cost to sterling and wife.

    in general, the prosecutors at doj are a reprehensible lot of unethical, mean-spirited law-and-order conservatives of whichever party – the prosecutorial equivalent of the contemporary brutal american policeman.

    they have become this way in part because judges will not discipline them for deceiving the court, withholding information from defense attorneys, or misleading juries, and because the attorney general and the obama whitehouse failed to clean house of the cheney-rove flotsam embedded at doj in 2009.

    • orionATL says:

      the doj’s objective must be to derail or delay an appeal that they fear losing.

      – increase the cost to sterling family

      – increase frustration and uncertainty plus disruption of other professional business of sterling attorney’s

      – create an impatient judge.

      this is all reminiscent of efforts by k-street banditos to strongly shape events toward a desired outcome.

  2. Applegate Friend says:

    This is exactly the kind of stuff Targeted Individuals will, and have gone through to get a fair hearing. I’m sure the Five & Dime lawyers with the government rejoice at their successful (for now) attempts at overt obfuscation. This crap must stop. It’s not fair. It is also immoral and unconstitutional.

    • emptywheel says:

      Very often, unless you’re Scooter Libby (who was repped on appeal by one of these lawyers, as it happens). You’ve got to prove you’ve got a good chance of succeeding, for one. I think Sterling does (though NAL), but I also think Brinkema had already gone out of her way to accommodate Sterling and likely feels some pressure because she gave him what the government considers a really short sentence.

      • orionATL says:

        “brinkama went out of her way to accomodate sterling?”

        you must mean by “accomodate” shorten the length of the prison term given sterling vis–vis gov’s out-of-bounds demands. i’d argue she wasn’t accommodating sterling and crew, but rather disciplining gv for absurd government claims about injury – gov’t lies in fact.

        any judge who lets the prosecution parade around a jury with a piece of paper falsely labeled “secret”, lets the jury fondle the fake secret document, and then lets the prosecution collect up and keep that document is not accomodating the defendant in the least.

        the better description might be “brinkema is now afraid enough of the prosecution’s ire that she will give sterling’s team little fair opportunity.”

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