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Banned
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ABC Nightline:14 Fed. Justice Officials 1980's Misconduct: False Prosecution
Tonight, soon to retire Nightline news anchor Ted Koppel reported the story of the false prosecution in the mid 1980's of Edwin Wilson, who served more than 20 years in prison as a result of a CIA affadavit that was known to the CIA and 14 Fed. Justice Dept. officials to be false. The agencies and the officials, according to the finding of Federal Judge Lynn Hughes, who released Wilson from prison, knew the evidence was false, but either submitted it as evidence in Wilson's trial, or became aware of it after Wilson's conviction, and failed to inform the court of the misconduct of the CIA and of Justice Dept. officials.
The 14 officials include three who were later appointed to the federal bench, including Reagan appointee, Steven Trott, now a ninth circuit appellate court judge.
My observation is that it is highly unusual for a major news network to make such a damning news report, and even rarer for a federal judge to make such a blunt and damning finding against Justice Dept. and CIA officials. What do you think should happen to the officials involved, and do you believe that the justice system can be entrusted on a federal or a state level, to justly mete out capital punishment, especially in view of Judge Lynn Hughes' finding.
Quote:
<a href="http://www.nytimes.com/2005/04/27/arts/television/27heff.html">http://www.nytimes.com/2005/04/27/arts/television/27heff.html</a>
When Justice Runs Amok
By VIRGINIA HEFFERNAN
Published: April 27, 2005
There's nothing visually fancy about "The Traitor: The Edwin Wilson Story," tonight on ABC's "Nightline."
Some clips from the early 80's show a prosecutor, Ted Greenberg, looking self-impressed and about 14, at a news conference. Smudged courtroom sketches show a distressed defendant - that's Edwin Wilson. The camera then runs down corridors of the federal penitentiary in Marion, Ill., and Mr. Wilson, 77, appears in an interview with Brian Ross, the chief investigative correspondent for ABC News. Mr. Wilson looks stooped, rueful, exhausted.
But then there are the documents: a half-dozen or so, some bathed in golden light; excerpts float out of the text to center screen, in the newsmagazine way.
The excerpts are arresting. And with them, the program elegantly closes its case: namely, that Mr. Wilson, who served more than two decades in prison (10 in solitary confinement) for selling weapons to Libya, was convicted in 1983 on the strength of a false affidavit.
During his trial Mr. Wilson admitted that he sold weapons and 20 tons of plastic explosives, but he said he was working for the C.I.A. at the time. In response, a high-ranking C.I.A. official produced an affidavit saying that Mr. Wilson "was not asked or requested" to "perform or provide any services, directly or indirectly, for C.I.A.," and Mr. Wilson was convicted.
While in prison - when he wasn't pacing and doing push-ups, which he says he did for hours in his cell to keep his sanity - Mr. Wilson requested government documents under the Freedom of Information Act. Finally, after 14 years, he came across what he needed: a memo called "Duty to Disclose Possibly False Testimony," in which Justice Department officials considered that the affidavit was bogus. At the top of the memo someone had written: "The affidavit is inaccurate."
David Adler, Mr. Wilson's lawyer, suggests on camera that the document had been released by the government inadvertently.
Saying "the government knowingly used false evidence against him," a federal judge, Lynn Hughes, overturned Mr. Wilson's conviction last Sept. 14. In his first interview since his release from prison seven months ago, Mr. Wilson laughs desolately at how he was once demonized as the most dangerous man in America.
The judge also wrote in his ruling: "In the course of American justice, one would have to work hard to conceive of a more fundamentally unfair process ... than the fabrication of false data by the government, under oath by a government official, presented knowingly by the prosecutor in the courtroom with the express approval of his superiors in Washington."
And the documentary goes so far as to allow Mr. Adler to assert that the erroneous conviction made the careers of Mr. Wilson's prosecutors.
Stanley Sporkin, who was the C.I.A. general counsel at the time, was appointed a federal judge, as were Steven Trott and D. Lowell Jensen, Justice Department officials involved in the case. Larry Barcella, another prosecutor, went on to investigate government corruption as an independent counsel. Mr. Greenberg is currently a senior counsel at the World Bank.
Each of these résumé statements is accompanied by an accusatory close-up of the man in question. What to think about them is left to the viewer. Likewise, the viewer is left with serious questions about the Wilson case, which is far from resolved at the end of the program. Consider just one: If Edwin Wilson was working for the C.I.A. when he sold weapons to Libya, why was the C.I.A. overseeing the sale of weapons to Libya? Despite the open questions, this is a simple, confident, low-dazzle documentary with no fear - a reason to watch "Nightline."
Nightline
The Traitor: The Edwin Wilson Story
ABC, tonight at 11:35, Eastern and Pacific times; 10:35, Central time.
Ted Koppel, anchor and managing editor of "Nightline"; Tom Bettag, executive producer; Brian Ross, correspondent. Produced by Vic Walter.
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Quote:
<a href="http://abcnews.go.com/Nightline/Investigation/story?id=708779&page=1">http://abcnews.go.com/Nightline/Investigation/story?id=708779&page=1</a>
'The Most Dangerous Man in America'
Conviction of Former CIA Agent Overturned on False Affidavit
by Brian Ross ABC News Chief In vestigative Correspondent
April 27, 2005 — This is the story of a man, a one-time CIA officer, who spent 22 years in prison after being branded a traitor and a threat to the country.
"That was me," Ed Wilson said. "The most dangerous man in America, which is ridiculous."
Wilson, at age 54, was sentenced in 1983 to 52 years in prison. He was convicted on selling weapons and 20 tons of C-4 plastic explosives to Moammar Gadhafi's Libya. He was also convicted of trying to arrange a contract hit on the prosecutors.
Wilson's defense was that he was still working with the CIA and that the agency knew and approved of everything he was doing with Libya, including the shipment of the explosives.
Prosecutor Ted Greenberg said at the time that Wilson was making up his connection to the CIA. "Mr. Wilson did not work for the CIA or any other part of the intelligence community," he said.
In Houston, Texas, Wilson's conviction was overturned by a federal judge, Lynn Hughes, who identified about two dozen government lawyers, including Greenberg, who participated in the use of a false CIA affidavit that sent Wilson to prison and the silence about the affidavit after serious questions were raised about its accuracy. And Hughes minced no words in his opinion.
"In the course of American justice, one would have to work hard to conceive of a more fundamentally unfair process," wrote Hughes, "than the fabrication of false data by the government, under oath by a government official, presented knowingly by the prosecutor in the courtroom with the express approval of his superiors in Washington."
Wilson is a free man now.
The Affidavit
The CIA would not disclose its records but did provide an affidavit in the final days of the trial from a top CIA official that said, with one minor exception, Wilson "was not asked or requested, directly or indirectly, to perform or provide any services, directly or indirectly, for CIA."
It was the lynchpin of the government's case, according to Wilson's current lawyer, David Adler.
"It was read into evidence during the trial," Adler said. "The jury went back to deliberate. After a short time of deliberations, the jurors asked to hear this affidavit again. It was re-read to them, and an hour later they voted guilty on all counts for Mr. Wilson. So I think it was critical to the jury's decision."
Wally Sisk, the foreman of the jury in Houston that convicted Wilson, agreed with Adler's speculation about the power of the false affidavit. "If we had known that, I can say unequivocally that there would not have been a guilty verdict," he said, "because that would have taken away the whole case of the prosecution."
Wilson expected to die behind bars. "Yeah, I thought I was gone," Wilson said. He was first sent to solitary confinement at the high-security federal penitentiary in Marion, Ill., locked down for 23, 24 hours a day.
But the thought of clearing his name gave him the strength to continue, Wilson said.
"Oh no, you can't give up. Because at the time, I knew, I knew I was innocent of this thing," he said. "I took it and I said, 'I'll have my day someday.' "
It would take 20 years for Wilson to prove that the affidavit was false. From his cell in Marion, Wilson began to seek government documents using the Freedom of Information Act. It was 14 years later that the government turned over an internal Justice Department memo, buried in a large stack of other documents, in which Justice Department officials acknowledge the CIA affidavit was possibly false and discuss what to do about it.
"Somebody slipped up and never intended for Mr. Wilson to see this document," Adler said. "I think they forgot that if you put someone in solitary confinement, that they don't have a lot to do all day other than to pore through these documents, and I think Mr. Wilson paid a lot more attention to the materials than the people who were responsible for releasing them at the Justice Department."
Since then, Adler, a former CIA officer himself who was at first skeptical when assigned the case, has discovered dozens of Justice Department and CIA documents that prove the key affidavit in the Wilson case was false and that many in the government knew it. He said one document revealed at least 80 instances of contact between Wilson providing and the CIA.
"I'm not skeptical anymore," Adler said. "I think the documents are about as clear as they could be that this was an intentional, purposeful effort to conceal the truth from the judge, from the jury, from Mr. Wilson and his defense lawyers and from the public."
And some of those involved in the Wilson case went on to become some of the most prominent men in legal circles today.
"Many careers were greatly enhanced by the successful prosecution of Mr. Wilson back in 1983," Adler said. "I think I've uncovered something that, at the very least, should question whether or not they deserve to have those types of positions."
Government Lawyers
Hughes, in his ruling, singled out Greenberg, about whom he wrote, "deliberately, knowing the facts, Greenberg ignored the CIA attorneys' requests and used it."
In a statement to Nightline, Greenberg says he was never warned by the CIA that the affidavit was false, that their concerns were about tactics.
Greenberg said he would never file "with the court an affidavit or other document which I knew to be inaccurate or false."
The supervising prosecutor on the case, Larry Barcella, says he cannot recall seeing the affidavit before it was introduced and denies doing anything improper when the issue was raised later. But according to Adler, Barcella participated in the meetings when it was discussed that something might have to be corrected about the affidavit.
Wilson has filed complaints with the Washington, D.C., bar association about Barcella.
"Evil, that's a word I like. Evil," Wilson said about the prosecutors. "They were not just doing their jobs. They were doing it for themselves."
After the guilty verdict, the CIA general counsel, Stanley Sporkin, who had told prosecutors prior to introduction of the affidavit in the trail that it should be amended or not used, again raised a red flag, according to one of the documents Adler and Wilson discovered.
"The CIA drafted up a letter that the agency proposed be sent to Wilson's attorneys disclosing the problem with the affidavit," Adler said. "And again the Justice Department rejected the CIA's suggestion that the letter be sent to Mr. Wilson's lawyer, and so it was never disclosed at that juncture either."
D. Lowell Jensen was in charge of the criminal division of the Justice Department when the decision was first made. He declined to comment on his role in the Wilson case. Adler said he "found a fair number of memos that were addressed to him, or from him, talking about the problem, talking about the decision to keep quiet about this."
Documents Related to the Case: <a href="http://abcnews.go.com/images/Nightline/wilson3.pdf">http://abcnews.go.com/images/Nightline/wilson3.pdf</a>
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Excerpts from Judge Lynn Hughes Finding:
<a href="http://www.fas.org/sgp/jud/wilson102703.pdf">http://www.fas.org/sgp/jud/wilson102703.pdf</a>
<a href="http://64.233.179.104/search?q=cache:jQg0JEpUjUkJ:www.fas.org/sgp/jud/wilson102703.pdf+fas+Judge+Lynn+Hughes+The+truth+comes+hard+to+the+government&hl=en">Link to html version (Excerpts begin page 6., middle)</a>
In February 1983, James H. Taylor, the CIA's new inspector general,
complained that listing every official or quasi-official contact between CIA
employees and Wilson since 1971 would require the CIA
“to research approximately three safe drawers of data . . . . [and] a
substantial amount of material that the Office of the General
Counsel holds . . . .” He mentions one or two incomplete lists of at
least 100 agency contacts with Wilson but concludes, “No matter
what we all do, we will never be able to come up with an exact,
complete list of all Agency/Wilson contacts . . . .”
(Gov't App., Ex. K, emphasis added.) The man charged with intra-agency
integrity said that (a) agency contacts were too many to count, (b) counting them
would be too much work, and (c) the result would be unreliable. The affidavit did
not tell Judge Sterling or the jury that the CIA simply did not know whether it had
used Wilson after he left its formal employment. “None” and “Unknown” are
very different answers.
When the inspector general did attempt to count, the magnitude of
Wilson's involvement with the CIA became stark: the CIA found eighty non-social
contacts between Wilson and CIA employees, including almost forty times where
Wilson furnished services to the CIA between 1972 and 1978. (Wilson Mot. to
Vacate, Ex. 101.)
Although the CIA's general counsel said that these numbers accurately
reflected agency records and included everything that could “remotely be
considered ‘business contacts,’” the report did not tell the whole story. (Wilson
Mot. to Vacate, Ex. 100.) Even while investigating—and officially distancing
itself from—Wilson, the government was still gathering intelligence from him.
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While Wilson was a fugitive in 1981, the FBI, ATF, and assistant United States
Attorneys from the District of Columbia interviewed him in Rome, Italy, in July
1981. As a show of good faith before the interviews, Wilson produced documents
for the CIA about Libya's nuclear program, including technical plans for
manufacturing an atomic device. He also offered to tell the government the
locations of two fugitives wanted by the United States for assassinating Letelier,
the Chilean diplomat. (Gov't 0020662.)
Over three days in Rome, Wilson provided information about Iran, Russia,
Taiwan, and Libya. He described Libya's military equipment, assassination teams,
intelligence fronts, and identified (a) American, British, and Italian companies
supplying Iran with military parts or servicing Qaddafi's personal aircraft and (b)
Americans assisting or taking bribes from the Libyans. The government asked for
information on forty-one people; Wilson offered
Handwritten notes taken by Admiral Daniel Murphy, the Vice President's
chief of staff, in November 1981 reveal that Wilson also produced papers to prove
his allegiance to the United States and his innocence of most charges. (Gov't
0057326.)
When the government later decided to “capture” Wilson and bring him to
the United States to face trial, it thought favorably of Wilson's usefulness as a
source of intelligence. As one assistant United States attorney told Attorney
General William French Smith, “[T]he information [Wilson] could provide us
with regard to current activities in Libya could prove of uncalculable [sic] value.”
(Wilson Mot. to Vacate, Ex. 29 at 5.)
4. Texas Trial.
In June 1982, the government lured Wilson out of Libya and brought him
to the United States. On July 19th, Wilson was indicted in the Southern District
of Texas for:
C Conspiring to ship 20 tons of C-4 plastic explosives to Libya,
C Presenting a falsified shipper’s export declaration,
C Exporting explosives without a license, and
C Transporting explosives by cargo aircraft in October 1977.
After a two-week trial, a jury convicted Wilson on all four counts on
February 5, 1983. He was sentenced on February 18, 1983, to seventeen years and
fined $145,000...............
..................B. Response.
To rebut Wilson’s evidence, on February 4, 1983, the government
introduced an affidavit from Charles A. Briggs. Briggs served as the CIA’s
inspector general until mid-1982 when he became its executive director—the
third highest ranking official of the CIA. In the affidavit, he swore that—with one
exception—the CIA did not ask Wilson to work for it after he officially stopped
working there. Briggs declared:
C “The search [of CIA records] revealed that Mr. Edwin P. Wilson
terminated his employment with the CIA on 28 February 1971, and
was not re-employed thereafter in any capacity.
C According to Central Intelligence Agency Records, with one
exception while he was employed by Naval Intelligence in 1972,
Mr. Edwin P. Wilson was not asked or requested, directly or
indirectly, to perform or provide any service, directly or indirectly,
for [the] CIA.”
(Wilson Mot. to Vacate, Ex. 8, ¶¶ 3-4.)
Briggs signed the affidavit under penalty of perjury, and Stanley
Sporkin—the general counsel of the CIA—certified it with his signature and the
agency's seal. The prosecutors introduced the affidavit at trial despite the
expressed reservations of some of the government’s lawyers, including the CIA's
general counsel. (Gov't Answer to Am. Mot. to Vacate at 30.) After deliberating
for one day, the jury asked the judge to re-read the Briggs affidavit to them. An
hour after the re-reading, the jury found Wilson guilty.
5. Post-trial.
Three days after trial but before sentencing, the government admitted
internally that the affidavit was false. A CIA investigator excerpted the untrue
paragraphs from the Briggs affidavit, and then drafted a memorandum titled “Notes for IG” that listed five solicitations and projects on which Wilson worked
for the CIA after 1971, including a planned trip to Iran with the deputy director
of operations to develop an agent there. The author noted that one CIA report
implies that an agent asked Wilson to establish rapport with a Middle Eastern
source. The employee who drafted the memorandum had conducted most of the
pre-trial investigations on Wilson’s post-employment contacts with the CIA; he
knew the Briggs affidavit was false. (Wilson Mot. to Vacate, Ex. 85.)
Two days later, the CIA forwarded the memorandum to the United States
Attorney's Office. That day, an attorney at the Department of Justice sent the
deputy assistant attorney general of the criminal division a memorandum entitled
“Duty to Disclose Possibly False Testimony” and summarizing case law. A
handwritten note concludes, “Plain meaning of services —> The affid. is
inaccurate.” (Wilson Mot. to Vacate, Ex. 88.)
The government debated what to do about the affidavit's “inaccuracies.”
Later that month, it drafted a letter to Wilson's attorneys, mentioning a few of
Wilson's post-1971 contacts with the CIA but defending the affidavit. Deciding that the letter would open “the entire universe of questioned contacts [between
Wilson and the CIA],” the government never sent it. It stood by the affidavit.
(Gov't Answer at 40; Wilson Mot. to Vacate, Exs. 90, 92, 97.)
Doubts remained. Mark M. Richard, the deputy assistant attorney general
of the criminal division, urged assistant attorney general, head of the criminal
division, Daniel Lowell Jensen, “I think we must make a disclosure—either to the
judge or the defense attorney (a third option is to disclose to both).” He also suggested that “[i]f we don't make the disclosure we must first examine what
purports to be the universe of contacts and 'paper' our own files with our findings
. . . .” As the “relevant players” prepared to meet again to discuss what to do,
Richard concluded, “disclosure is, unfortunately, necessary. I suspect that I am
in the minority.” He was. After ten months of researching the law, reviewing
records, and holding inter-agency meetings, the government never told the trial
court or Wilson’s counsel that it had knowingly used false evidence. (Wilson
Mot. to Vacate, Exs. 95 at 2, 97, 110.)
6. Appeal.
In December 1983, the government filed its brief in the court of appeals.
It did not acknowledge directly or indirectly that it knew that the Briggs affidavit
was false. Responding to Wilson's hearsay argument against the affidavit's
admissibility, it mentions two “business transactions” between Wilson and the
CIA in 1974 and 1975: procuring two desalinization plants for Egypt and “househunting”
for a Laotian general to the United States. (Gov't Answer at 45.)
Mentioning two of the more innocuous uses of Wilson by the CIA did nothing to
correct the record. Attaching the incomplete list of eighty contacts between
Wilson and CIA or including Wilson's use in efforts to buy Soviet military
hardware, like tanks and fighter jets, for the CIA would have given a more
accurate picture of the relationship. Of course, the government could have
produced records supporting Wilson's claim that the CIA knew—even
authorized—the shipment of explosives to Libya. (Gov't 0028896, 0064608.) It
did not.
The court of appeals affirmed Wilson’s conviction. United States v. Wilson,
732 F.2d 404 (5th Cir. 1984). Its ruling says nothing about the falsity of Briggs’s
affidavit or its effect on Wilson’s conviction—most likely because the government
only obliquely referred to its lie. The ruling simply says that the affidavit was
admissible to prove—by certifying an absence of records—that Wilson was not
associated with the CIA. See 732 F.2d at 413; Rule 803(10). Although the
affidavit was admissible to prove a lack of records, it was false; the affidavit
proved nothing but a lie.
The court of appeals read Briggs’s statement to prove that “Wilson was not
directly or indirectly associated with the CIA, or acting with the CIA’s knowledge and approbation when he arranged and concluded the C-4 shipment from
Houston to Libya.” 732 F.2d at 413-14.
Wilson also requested appellate relief on a discovery violation—that the
government “had information about associations of certain people with the CIA
which would have materially aided Wilson’s defense.” Id. at 414. The court of
appeals found no violation after it reviewed the record; however, it is now clear
that the government withheld from Wilson the memoranda it prepared that listed
his post-employment associations with the CIA as well as all direct documents
generated from his work with the agency.
7. Years later.
Many years after his conviction, Wilson discovered internal government
documents that prove that the Briggs affidavit was false and that the prosecutors
knew about it before they used it at trial.
Confronted with the documents, the government now admits—twenty
years after using the affidavit to convict Wilson—that “With the benefit of
retrospection and in light of all the information now known to the Department, it
appears that the statement was inaccurate.” It now says that “following Wilson’s
termination as a CIA employee, he was asked to perform or did perform what can
be described as services on its behalf.” (Gov't Answer at 52.)
Honesty comes hard to the government. It describes its non-disclosure as
“information allegedly concealed by the Briggs declaration.” (Gov't Answer at
64.) This is a semantic game—the information was not allegedly concealed; it was
actively and actually concealed. The government also justifies its choice to
remain silent by saying that, by the time it finished investigating its perjury, the
case had been appealed and was outside of the district court’s jurisdiction. (Gov't
Answer at 57.) The government could have told the court of appeals.
The investigation is a dodge; there was no need to investigate: it knew the
affidavit was false before it offered it. In November 1977, a “reliable source” in
the FBI told the Department of Justice that Wilson was still a contract employee
with the CIA as recently as summer or early fall of 1976. The department
circulated this information in a November memorandum. (Wilson Mot. to Vacate,
Ex. 13.) Another memorandum from an assistant United States Attorney for the
District of Columbia to the Department of Justice confirms that the lawyers knew about it before they used it at trial.
Confronted with the documents, the government now admits—twenty
years after using the affidavit to convict Wilson—that “With the benefit of
retrospection and in light of all the information now known to the Department, it
appears that the statement was inaccurate.” It now says that “following Wilson’s
termination as a CIA employee, he was asked to perform or did perform what can
be described as services on its behalf.” (Gov't Answer at 52.)
Honesty comes hard to the government. It describes its non-disclosure as
“information allegedly concealed by the Briggs declaration.” (Gov't Answer at
64.) This is a semantic game—the information was not allegedly concealed; it was
actively and actually concealed. The government also justifies its choice to
remain silent by saying that, by the time it finished investigating its perjury, the
case had been appealed and was outside of the district court’s jurisdiction. (Gov't
Answer at 57.) The government could have told the court of appeals.
The investigation is a dodge; there was no need to investigate: it knew the
affidavit was false before it offered it. In November 1977, a “reliable source” in
the FBI told the Department of Justice that Wilson was still a contract employee with the CIA as recently as summer or early fall of 1976. The department
circulated this information in a November memorandum. (Wilson Mot. to Vacate,
Ex. 13.) Another memorandum from an assistant United States Attorney for the
District of Columbia to the Department of Justice confirms that the lawyers knew on December 6, 1979, that Wilson had worked on Navy projects—with the CIA's
knowledge and coordination—through 1976, not 1972 as claimed in the affidavit.
(Wilson Mot. to Vacate, Ex. 15 at 4.) If the lawyers still had doubts, they could
have investigated the scope of Wilson's work for the CIA before they offered the
affidavit, not afterward. Maybe they could have investigated those contacts before
they presented the case to the grand jury. The record hints that some of the
lawyers had misgivings about the position they were putting forth or doubted the
CIA's forthcomingness. In October 1981, assistant United States attorneys Larry
Barcella and Carol Bruce quizzed the CIA about Wilson, cautioning that:
“there are some very real concerns that are born out of what we
have learned over the past four months about the depth of the
relationship that existed and continues to exist between Ed Wilson
and [CIA officials] Theodore Shackley, Tom Clines, and others. .
. . Did the CIA, or to your agency's knowledge, any other U.S.
Agency solicit, collect or receive any information concerning the
activities of Ed Wilson, Frank Terpil and their associates from
January 1, 1976 to date that has not yet been reported to us? In
connection with this, please provide us with a list of what you
believe you have already reported to us concerning their reported
activities.” (Wilson Mot. to Vacate, Ex. 23 at 2-3.)
Similar requests for a “definitive written response”—including questions
about Wilson's role in buying Soviet military equipment for the CIA—were
repeated by the FBI and the Justice Department in at least 41 requests for
information from the CIA in 1981 and 1983. (Wilson Mot. to Vacate, Ex. 68 at 2.)
For its part, the CIA's general counsel warned its employees not to
communicate with Wilson's lawyers as this “may cause them to believe that the
Agency has material relevant to their client's interest. Thus, direct
communication with them may actually trigger inquiries and discovery requests
which the Agency would have to respond to.” (Wilson Mot. to Vacate, Ex. 40.)..................
....................Among the people who knew the government—through the CIA and
Department of Justice—was both failing to disclose records of Wilson’s work and
offering a false affidavit was the CIA’s general counsel. Yet the Department of
Justice refused his request to correct or not to use the false affidavit. This person
was no obscure paper-shuffler; he had been director of enforcement at the
Securities and Exchange Commission and, after his CIA tenure, became a federal
judge. Similar careers were had by people at the Department of Justice.......
............The
government’s attempt to split the government into the personal belief of the least
informed attorney will not work. The court has identified about two dozen
government lawyers who actively participated in the original non-disclosure to
the defense, the false rebuttal testimony, and the refusal to correct it.
Governmental regularity—due process—requires personal and institutional
integrity.
CIA attorneys told Assistant U.S. Attorney Ted Greenberg that the Briggs
affidavit should not be used as evidence, as then written, and asked him not
introduce it. He did.
CIA General Counsel Stanley Sporkin advised that, at minimum, the word
“indirectly” should be removed from paragraph four. Deliberately, knowing the
facts, Greenberg ignored the CIA attorneys' requests and used it. (Wilson Mot. to
Vacate, Ex. 98 ¶¶ 3-5.)
Although it admits that it presented false evidence at Wilson’s trial and
now lists solicitations and services he performed post-termination, the
government says that Wilson has not proved that the prosecutors knew that it was
false. Persistence in this contention reveals that consistency is valued higher than
fidelity at the Department of Justice.
First, the government says that the prosecutors meant “taskings related to
the gathering of intelligence” where Briggs’s affidavit reads, “asked or requested
directly or indirectly to perform or provide services.” (Gov't Answer at 54.) The
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government claims that none of the prosecutors realized that the phraseology that
they used could be understood broadly. Broadly? At one point, the government
decides that “contact” meant operational—that is, undercover espionage—
assignments that had been formally cleared by the CIA hierarchy. This is a threelevel,
arcane, bureaucratic, and evasive interpretation of the plain meaning of
Brigg’s words.
Full disclosure would have required personal, commercial, operational,
and other interpersonal exchanges to have been revealed to the defense and court
as a matter of routine pretrial preparations.
Even after the prosecution’s conversion of Briggs’s statement into
Newspeak, the plain implication of his words was that Wilson had had only one
limited contact. That is false. Even with the Washington Jig around the text of
the affidavit, the government cannot make its words coincident with the “truth,
whole truth, and nothing but the truth.”
When the CIA’s general counsel worried to a deputy assistant attorney
general that Wilson was about to be sentenced without the deception’s having
been disclosed, he replied that no harm would come from more delay and that
there was “very little sentiment in DOJ to do anything about the Briggs’ [sic]
affidavit.” Voices accurately recited law and urged compliance, but in the end,
they were overwhelmed by the noise of the others and bureaucratic momentum.
Houston prosecutor Jim Powers participated in lengthy meetings at the
Department of Justice where they discussed the techniques for dodging the plain
meaning of the affidavit and the contradictory material. This is the same attorney
who answers Judge Sterlings’s question “that all Brady is made available?” with
“That is true.” The judge followed with “From whatever source,” and Powers
responded, “If we discover them, we will be the first to let somebody know. . . .”
After the prosecutors choose to ignore the CIA’s own request for correction of the
evidence, some CIA people generated memoranda to reflect their advice and its
timing, preventing the agency being blamed by the prosecutors.
The government even claimed in this review that it did not have evidence
of Wilson's work with the CIA after 1971. It now admits—correcting a
“misstatement” in its response to the motion to vacate—that as early as January
1982 or, at the latest, by July 13, 1982, before Wilson's Texas trial started, the
prosecutors knew that the CIA had employed Wilson in 1974 and 1975 to:
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C Locate and deliver—through Consultants International—two
desalinization units for Egypt;
C Find a residence in the United States for a former Laotian general;
C Demonstrate and procure body armor for the Iranian Imperial
Guard ;
C Trade weapons or explosives for sophisticated Soviet military
equipment—like MiG-25 fighters, tanks, missiles, and ocean
mines—with Libya; and
C Get information about Secret Service pistol ranges so Saudi Arabia
could build its own.
(Gov't Suppl. Mem. at 2-6.)
The government's “new” information comes, in part, from a prosecutor's
lengthy handwritten notes taken during a meeting with the CIA on July 13, 1982.
Although the government says it just now found the notes in one of the “many
boxes of Wilson-related material,” it insists that Wilson's lawyer had access to the
notes during discovery, although it cannot be certain. (Gov't Answer at 2.) The
government does not even know now what information was included in the
“Wilson file” given to the United States Attorney's Office before trial. (Gov't
Answer at 11, n.3.) Even if they were produced at some point, it is unlikely that
the prosecutor's notes were reasonably obvious to Wilson's lawyer since the
government is just now finding them, years later. The notes may not have been
disclosed............
...............America did not defeat the Axis because it locked up Japanese Americans.
America did not defeat the Soviet Union because it tried to lock up its philosophic
fellow-travelers here. America will not defeat Libyan terrorism by double-crossing
a part-time, informal government agent.
The government’s preparation, presentation, and preservation of false
evidence are not the process that is due from the government. As Justice
Sutherland observed, while a prosecutor “may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means
to bring about a just one.” Berger v. United States, 295 U.S. 78, 88 (1935)(George
Sutherland). The government has no legitimate interest in buying or presenting
false evidence from outsiders—it has less than none in lying to the court itself.
The government may be able to prove beyond a reasonable doubt by legal
evidence that Wilson is guilty of violating the law. It will have that opportunity
because Edwin Paul Wilson’s conviction will be vacated.
Signed October 27, 2003, at Houston, Texas.
Lynn N. Hughes
United States District Judge
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