Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 1 of 114 PageID# 5485 768 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA vs. JEFFREY ALEXANDER STERLING, Defendant. . . . . . . . . . . . . . . . . . . . Criminal No. 1:10cr485 Alexandria, Virginia January 16, 2015 10:00 a.m. TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE VOLUME IV APPEARANCES: FOR THE GOVERNMENT: JAMES L. TRUMP, AUSA DENNIS M. FITZPATRICK, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 and ERIC G. OLSHAN, Deputy Chief Public Integrity Section of the Criminal Division United States Department of Justice 1400 New York Avenue, N.W. Suite 12100 Washington, D.C. 20005 FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ. Law Office of Edward B. MacMahon, Jr. 107 East Washington Street P.O. Box 25 Middleburg, VA 20118 (APPEARANCES CONT'D. ON FOLLOWING PAGE) (Pages 768 - 881) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 2 of 114 PageID# 5486 769 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: BARRY J. POLLACK, ESQ. MIA P. HAESSLY, ESQ. Miller & Chevalier Chartered 655 - 15th Street, N.W. Suite 900 Washington, D.C. 20005-5701 CLASSIFIED INFORMATION SECURITY OFFICERS: CHRISTINE E. GUNNING MAURA PETERSON ALSO PRESENT: GERARD FRANCISCO SA ASHLEY HUNT JENNIFER MULLIN, ESQ. OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR U.S. District Court, Fifth Floor 401 Courthouse Square Alexandria, VA 22314 (703)299-8595 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 3 of 114 PageID# 5487 770 1 I N D E X 2 3 DIRECT CROSS REDIRECT RECROSS WITNESSES ON BEHALF OF THE GOVERNMENT: 4 Merlin (by deposition) 774 Charles Bratton Seidel 775 790 David Cohen 792 801 Eileen Swicker 807 816 Carrie Newton Lyons 823 828 Scott A. Koch 832 842 848 Charles Bruce Wells 849 863 872 5 791 6 7 820 821 8 9 10 878 11 12 EXHIBITS 13 MARKED RECEIVED 14 GOVERNMENT'S: 15 No. 52 78 81 84 86 811 835 835 835 835 87 89 90 91 92 835 849 849 849 849 93 99 127 849 835 835 16 17 18 19 20 21 22 23 DEFENDANT'S: 24 25 No. 5 6 7 867 867 866 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 4 of 114 PageID# 5488 771 1 P R O C E E D I N G S 2 (Defendant present, Jury out.) 3 THE COURT: All right. 4 THE CLERK: Criminal Case 10-485, United States of 5 America v. Jeffrey Alexander Sterling. 6 note their appearances for the record. 7 8 MR. TRUMP: Good morning, Your Honor. MR. FITZPATRICK: Dennis Fitzpatrick on behalf of the United States. 11 THE COURT: 12 MR. POLLACK: Good morning. Good morning, Your Honor. 13 Pollack on behalf of Mr. Sterling. 14 MR. MAC MAHON: 15 Jim Trump on behalf of the United States. 9 10 Would counsel please Barry Edward MacMahon for Mr. Sterling, Your Honor. 16 THE COURT: All right, I want to get this started. 17 don't know what the taping problem is in terms of the screen, 18 but I'm going to leave it up to the marshals to make sure that 19 the appropriate people have access to the well and nobody else 20 can see in. 21 22 We need to get this jury. time. They're all here again on I don't want them wasting their time. 23 THE COURT SECURITY OFFICER: 24 THE COURT: 25 I They are -- Just wait one second. What's the matter you-all wanted to raise before we get started? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 5 of 114 PageID# 5489 772 1 MR. POLLACK: Your Honor, it's not something we need 2 to take up before the jury comes in, but it has to do with our 3 getting notice of who the witnesses are that are going to be 4 called. 5 THE COURT: 6 Come on in, folks. 7 Right. (Jury present.) 8 THE COURT: I have told the government that I want 9 the list of witnesses they expect to call and in the order they 10 expect to call them given to both the Court and defense counsel 11 at the beginning of each session. 12 one witness, so for the afternoon schedule, could we please 13 have that, Mr. Trump or Mr. Fitzpatrick, before the end of the 14 morning session? 15 This morning we know we have Good morning, ladies and gentlemen. Once again, 16 thank you for being here on time. 17 yesterday, what we're going to have this morning, you're going 18 to be doing a lot of television watching. 19 screen, the big one or the small ones for those of you in the 20 first row, will enable you to be able to look at the witness 21 carefully. 22 Hopefully, that You also have, each of you have on your chair a 23 transcript. 24 testified to. 25 As I indicated to you That's a written transcript of what the witness Now, this witness is Mr. Merlin, whom you've heard a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 6 of 114 PageID# 5490 773 1 great deal about, the human asset. That's one of the reasons 2 again why the courtroom is set up this way, because his 3 picture, obviously, or his face can't be known to the general 4 public. 5 He speaks with a fairly thick Russian accent, and his 6 deposition was not taken here in Virginia, so it was, there's a 7 transmission issue, so sometimes it is difficult to hear what 8 he is saying, and so I urge you to just pay good attention. 9 That's why I said get a lot of coffee for this morning, all 10 right? 11 This deposition will take up probably the entire 12 lunch -- morning period. 13 as we've been doing, and probably we'll break for lunch around 14 one because my estimation is this deposition runs close to 15 three hours. 16 fast-forward, so it may be a little bit less than a total of 17 three hours, all right? 18 I will give you a break around 11:30, I'm assuming when we took our breaks that we can Unless there's anything further, we'll get started 19 with the deposition. 20 right -- So you folks -- are we ready to go? 21 MR. TRUMP: Yes, Your Honor. 22 THE COURT: You may open, you may open the All 23 transcript, and let me know, I'll be watching you if there's 24 any issue. 25 address it. If you're having trouble, raise your hands and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 7 of 114 PageID# 5491 Merlin - Direct/Cross 1 2 3 4 5 774 (Excerpt of Government's Exhibit No. 171, Deposition of MERLIN, played.) THE COURT: It better be better than that or we're not going to play it. (Excerpt of Government's Exhibit No. 171, Direct 6 Examination of MERLIN, played.) 7 THE COURT: All right, this is a logical time to stop 8 because we're going to go now to cross-examination, so why 9 don't we take our morning break. I think today, folks, I'm 10 going to just give you 15 minutes and ask you to be back here 11 at 20 of, all right? 12 (Recess from 11:23 a.m., until 11:43 a.m.) 13 14 15 16 17 18 Fifteen-minute break. (Defendant and Jury present.) THE COURT: All right, we'll now go into the Cross-Examination of the witness. (Excerpt of Government's Exhibit No. 171, cross-examination of MERLIN, played.) THE COURT: Well, why don't we stop now since we have 19 a short amount of redirect. 20 keep us on schedule. 21 little bit less. 22 this up and then get right into some more live witnesses. 23 It is the lunch hour. I do try to We'll take our one-hour lunch break or a I'd like you back here at 2:00. We'll finish (Recess from 1:05 p.m., until 2:00 p.m.) 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 8 of 114 PageID# 5492 Seidel - Direct 1 775 A F T E R N O O N 2 (Defendant and Jury present.) 3 4 S E S S I O N THE COURT: All right, we're finishing up, this is now the redirect examination of the witness. 5 (Excerpt of Government's Exhibit No. 171, Redirect 6 Examination of MERLIN, played.) 7 THE COURT: All right, ladies and gentlemen, you may 8 put those binders down now. 9 testimony. We've completed that witness's We'll take the visual off the screen, and now we 10 can open up the screen, and all the rest of the witnesses today 11 may testify in open court, correct? 12 MR. OLSHAN: Correct. 13 THE COURT: All right. 14 Mr. Fitzpatrick, if you don't mind helping? 15 And there's enough room in the courtroom that anybody 16 whose vision is blocked can simply move over to the other side. 17 18 19 20 I will ask the jurors to be very careful moving in and out until we get this screen completely down. All right, Deputy, I'll ask you to assist us. the witness who's next on board? 21 MR. TRUMP: Yes. 22 THE COURT: All right. 23 Who's Is that Mr. Seidel? Could you ask Mr. Seidel to come in, please. 24 CHARLES BRATTON SEIDEL, GOVERNMENT'S WITNESS, AFFIRMED 25 DIRECT EXAMINATION Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 9 of 114 PageID# 5493 Seidel - Direct 776 1 BY MR. TRUMP: 2 Q. Would you please state your name. 3 A. Charles Bratton Seidel. 4 Q. And would you spell your last name. 5 A. Yes. 6 Q. And your middle name for the court reporter? 7 A. B -- as in bravo -- r-a-t-t-o-n. 8 Q. Mr. Seidel, had you at one time worked with the CIA? 9 A. Yes, I did. 10 Q. And when did you begin your career with the CIA? 11 A. February of 1980. 12 Q. And when did you retire? 13 A. June of 2006. 14 Q. Was most of your career spent overseas? 15 A. It was indeed. 16 Q. When did you first go overseas? 17 A. In the summer or fall of 1982. 18 Q. Was that as an operations officer or case officer? 19 A. It was. 20 Q. And from that point until when did you work overseas? 21 A. Until the summer or fall of 1998. 22 Q. And while you were overseas, was that as a case officer 23 and then as a supervisor? 24 A. That is correct, yes. 25 Q. And in 1998, where did you go? S -- as in Sam -- e-i-d -- as in delta -- e-l. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 10 of 114 PageID# 5494 Seidel - Direct 777 1 A. New York station. I was -- New York. 2 Q. The New York office? 3 A. That's correct. 4 Q. And how long did you spend in New York? 5 A. I was there approximately two years. 6 Q. And after New York, did you go back overseas? 7 A. I did, yes. 8 Q. And finish your career overseas? 9 A. Yes. I actually, several months before I retired, in June 10 of 2006, I returned to the States for just a few months. 11 Q. 12 supervisor? 13 A. Yes. 14 Q. Was all of your overseas -- or a substantial part of your 15 overseas career spent in North Africa and the Middle East? 16 A. Yes, it was. 17 Q. Do you know someone by the name of Jeffrey Sterling? 18 A. I do. 19 Q. Do you see him in court today? 20 A. I do. 21 And again, that last stint overseas was primarily as a THE COURT: Identity is established. 22 BY MR. TRUMP: 23 Q. Would you just point him out? 24 A. Yes (indicating). 25 MR. TRUMP: May the record reflect that he's been Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 11 of 114 PageID# 5495 Seidel - Direct 1 778 identified? 2 THE COURT: Yes. He's been established, Mr. Trump. 3 BY MR. TRUMP: 4 Q. When did you meet Mr. Sterling? 5 A. Well, it would have been in the -- I arrived in New York 6 at the New York office in 1998, and it was either at the end of 7 1998 or very early in 1999 when he was assigned there. 8 Q. Were you responsible in part for his assignment to you? 9 A. Yes, I was. 10 Q. Would you please explain? 11 A. Yeah. 12 Washington several months, I'm not sure precisely when. 13 visiting our headquarters, and a senior manager in one of the 14 relevant geographic areas asked to see me, and he asked if I 15 would facilitate or support an assignment or identification of 16 a position in the office in New York for Mr. Sterling. 17 Q. And that, in fact, happened? 18 A. It did, yes. 19 Q. When he came to New York, what was your responsibility 20 within the New York office? 21 A. I was the second ranking officer in the facility. 22 Q. So you were the, the deputy? 23 A. I was the deputy, yes. 24 Q. Who was the chief at the time? 25 A. David Cohen. It was during a visit to our headquarters in I was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 12 of 114 PageID# 5496 Seidel - Direct 779 1 Q. And with respect to Mr. Sterling specifically, what was 2 your role? 3 A. 4 responsible for overseeing really all aspects of the, of the 5 facility, and we had a layered management, so we were divided 6 into branches, so Mr. Sterling's initial supervisor, direct 7 supervisor would be a branch chief, and then above him was a 8 chief of operations, and then in the wiring diagram chain of 9 command, I was above the chief of operations and below Well, I was -- as the No. 2 officer in the station, I was 10 Mr. Cohen. 11 Q. 12 Thomas H.? 13 A. That's correct, yes. 14 Q. And then Mark L.? 15 A. Yes. 16 Q. And then his chief of operations became Tom H.? 17 A. Yes. 18 Q. And you were, as you said, the deputy, and Mr. Cohen was 19 the chief? 20 A. 21 deputy. 22 Q. 23 was your responsibility? 24 A. 25 assignments in the foreign field running and managing And during this period, one of his branch chiefs was Throughout Mr. Sterling's tenure in New York, I was the And specifically in terms of his caseload and duties, what Well, I came to New York having served six consecutive Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 13 of 114 PageID# 5497 Seidel - Direct 780 1 operations, and I was selected by Mr. Cohen to take that job 2 because of the operational experience. 3 range of activities run out of that office, but because of my 4 operational background, I had more of a, sort of a 5 responsibility and focus on operational, operational matters 6 undertaken by officers like Mr. Sterling, who were subordinate 7 to me. 8 Q. 9 assigned? So there are a wide So you were familiar with the operations with which he was 10 A. Yes, I was. 11 Q. Are you familiar with the book State of War by James 12 Risen? 13 A. Yes, I am. 14 Q. Are you familiar with the operation that is described in 15 chapter 9, the operation run out of New York? 16 A. Yes, I am. 17 Q. And was Mr. Sterling assigned to that? 18 A. Yes, he was. 19 Q. As a supervisor, did you have to be read into whatever 20 program that operation was assigned to? 21 A. Yes. 22 Q. And by "read in," what do we mean? 23 A. Well, there are different gradations of sensitivity of 24 operations, and the operation in question was one that was 25 particularly sensitive and compartmented and -- in terms of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 14 of 114 PageID# 5498 Seidel - Direct 781 1 limited access, so that anybody who had access to that 2 information had to be, quote, read into the sensitivity of it 3 and was, was, was instructed about the, the sensitivity. 4 Q. 5 operation? 6 A. Yes, it did. 7 Q. What was your responsibility with respect to cables? 8 A. Well, it varied. 9 specific ones, I may have released cables, but initially, my And that gave you access to the cable traffic on that In some cases, although I don't recall 10 overall responsibility was to follow the course of the 11 operation. 12 after they had been sent, but in general terms, it would be as 13 first line manager who would review and then release a cable, 14 but if there was something of particular importance or concern 15 perhaps, then he had the latitude, the authority to run it up 16 the chain to the chief of operations and in certain cases to me 17 as well. 18 Q. 19 went out, but you saw all of them after they went out? 20 A. 21 another, but in general terms, yes. 22 remain conversant with all the traffic related to that 23 operation. 24 Q. 25 Mr. Sterling? In most cases, I would read copies of the messages So in other words, sometimes you saw a cable before it Yeah, unless I was away from the station for one reason or My responsibility was to Did you have an informal role with respect to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 15 of 114 PageID# 5499 Seidel - Direct Well, yes. 782 1 A. I mean, I had supervisory responsibilities in 2 the sense that I was in the chain of command, but it was in my 3 interests for every officer assigned to that office to, to 4 ensure that they were doing well, on track, etc. 5 him sort of formally and in counseling sessions, but informally 6 we occasionally chatted about his, his assignment and his 7 activities in, in the office. 8 Q. 9 you generally familiar with how the operation was planned and So yes, I met Now, were you generally familiar with the general -- were 10 run? 11 A. Yes. 12 Q. At any time, did Mr. Sterling express any concerns to you 13 about the way the operation was planned or run? 14 A. He did not. 15 Q. Either formally or informally? 16 A. He did not. 17 Q. At the time Mr. Sterling was assigned to that operation, 18 were there any other case officers in New York assigned to it? 19 A. Not to my recollection. 20 Q. And we mentioned Thomas H. and Mark L. 21 their supervisor, did they ever express any concerns to you 22 about the operation? 23 A. 24 was not a high profile in the sense it was very sensitive, but 25 it was a very important operation, and it was going along I don't recall any concerns. Did they -- as My recollection is that it Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 16 of 114 PageID# 5500 Seidel - Direct 783 1 smoothly to all of my recollection throughout my tenure there 2 until the time I left. 3 Q. 4 office, did you have to have proper identification and a badge 5 and those sorts of things? 6 A. 7 precise details, but to get into our overall office space, yes. 8 There were various systems of security measures, so to speak. 9 Q. Now, at the, at the New York office, in order to enter the Yeah, there are various levels. I don't recall the And once in the case, did each case officer have secure 10 space to store -- 11 A. 12 where I've been assigned, individual officers did have secure 13 location where they could store material related to their 14 operations. 15 Q. 16 officer's storage? 17 A. That would be unusual. 18 Q. When leaving the office, were case officers inspected, 19 frisked? 20 A. No. 21 Q. Any procedures taken to make sure they weren't leaving 22 with classified material? 23 A. No. 24 Q. If someone left with classified material, would that be a 25 violation of the office procedure? I don't remember the details, but in almost every case of And did one case officer have any access to another case Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 17 of 114 PageID# 5501 Seidel - Direct Yeah. 784 1 A. I mean, it's very well known within the agency 2 procedures for handling classified information, and it would 3 be -- I mean, it's just not done. 4 to take classified material unless there's a specified approved 5 reason outside of a controlled facility. 6 Q. 7 security agreement? 8 A. It would indeed, yes. 9 Q. Rules and regulations of the CIA? 10 A. Yes, it would. 11 Q. And perhaps federal law? 12 A. Yes. 13 Q. If you accidentally took something home, was there a 14 procedure to handle that? 15 A. 16 facility, and you'd inform your supervisor, and you'd be issued 17 in almost every case, it would be reported back to our 18 headquarters and adjudicated, but in most cases, it would 19 result in what we refer to as a security violation. 20 Q. 21 directed to your experience overseas. 22 unauthorized disclosure of information about a program such as 23 that that was written up in, in Mr. Risen's book, again 24 focusing your overseas experience, what does that tell the 25 target company -- target country such as Iran? I mean, one is not allowed And if you did that, that would be a violation of your Absolutely. You'd immediately bring it back to the Now, I'd like to ask you a few questions specifically When, when there's an Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 18 of 114 PageID# 5502 Seidel - Direct 1 A. 785 Well, theoretically -- 2 MR. POLLACK: 3 THE COURT: 4 MR. POLLACK: Your Honor -Wait. -- I'm going to object based on the 5 fact that we've already heard this testimony, heard it from 6 other witnesses, but I'm not sure the foundation has been laid 7 in terms of Mr. Seidel's expertise to respond to it. 8 9 THE COURT: Well, I think given the number of years he's worked overseas, I think he'd have a pretty good sense of 10 what the reaction on the ground might be, so I'm going to 11 overrule the objection. 12 MR. TRUMP: And, Your Honor, we've tried to target 13 different areas where there was potential harm, and we're using 14 Mr. Seidel as a, put on our expert notice particularly with 15 respect to his overseas experience and his experience in the 16 Middle East. 17 THE COURT: That's fine. You may ask the question. 18 BY MR. TRUMP: 19 Q. 20 target country, in this case Iran? 21 A. 22 hostile relations with the U.S. understands on a theoretical 23 level that we are going after them, for lack of a better term, 24 in an intelligence perspective to find out what they're doing. 25 Again, what, what does a disclosure of this type tell the Many things. In almost every instance, a country that has In the case of the Iranians, it wouldn't be a shock Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 19 of 114 PageID# 5503 Seidel - Direct 786 1 that we were undertaking perhaps some operations to maybe 2 affect their capabilities, but if they were to learn something 3 specific, it's not just the reality that we are mounting an 4 operation, which would indeed provoke them to undertake a very 5 aggressive counterintelligence activity to learn the details, 6 but again, it's not just the operation itself; it's all the 7 details that go into an operation to make it successful, 8 because we undertake in the agency sort of countless steps to 9 mitigate risk, to avoid any kind of -- anything related to the 10 case that would reveal to the opposition that it is an 11 intelligence operation. 12 in the operation that's in question here, there's so many 13 different aspects that went into it. 14 Each, each operation is distinct, and So the target country in this case would learn about 15 it, and their counterintelligence service -- and my whole 16 career was offensive operations against foreign government, so 17 I know firsthand what they do. 18 will dissect it to the most minute degree, and they won't 19 assume that that's the only operation we're running. 20 look to see if there are other operations. 21 with friendly governments with whom they have intelligence 22 relations. 23 mind are Syria and Russia. 24 25 They will focus on it and they They'll They'll consult In the case of Iran, the first two that come to And it's again not just the operation itself. It's people involved in the operation. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 20 of 114 PageID# 5504 Seidel - Direct 787 1 Q. Now, does this have the potential to affect other 2 unrelated operations? 3 A. Yes, it does. 4 Q. And why is that? 5 A. Well, in the case of if it's a third country, perhaps they 6 haven't been approached by the Iranians in this case, but if 7 they see a reputedly credible source that talks about a 8 specific CIA operation targeting a program, if they're running 9 a similar program, it's just natural that they would undertake 10 similar sort of a review, scrub, aggressive effort to determine 11 or to ensure that no similar operations are undertaken in their 12 similar programs. 13 Q. 14 States is trying to penetrate or obtain intelligence from, from 15 foreign countries. 16 to their security measures by a disclosure such as this? 17 Potential. 18 A. 19 of our intelligence collection, I could divide them into three 20 general categories. 21 cooperation with foreign governments, but in some cases, we, we 22 work with what we refer to as liaison partners. 23 Q. 24 situations, what would our -- what would our adversaries 25 potentially do as a result of this -- I believe you mentioned in your experience, the United What would their reaction be with respect If I could just ask for a clarification? Because in terms One is those we undertake without any Let me stop you there. With respect to adversarial Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 21 of 114 PageID# 5505 Seidel - Direct 788 1 A. They're going to undertake defensive measures to ensure 2 that anything -- they'll look at the, as I had said, every 3 aspect of this operation in terms of how it was mounted, 4 communications, people involved, modes of travel, etc. 5 going to look for any, any similar patterns and, and basically 6 try to defend or prevent any similar offensive effort against 7 one of their -- any of their programs. 8 Q. 9 services and governments: They're And now this same question with respect to friendly How does it have the potential to 10 impact on, on our relationship with them? 11 A. 12 Middle East. 13 intelligence services. 14 for lack of a better term, the Arab Street. 15 those countries make decisions about whether they're going to 16 cooperate with us to a large degree on our ability to convince 17 them that it's not going to become public. 18 19 My background, as you had mentioned, is primarily in the We have many cooperative relationships with Arab That cooperation is not popular among, Leadership of So when they learn about such operations, they're going to wonder can the CIA keep that a secret. 20 MR. TRUMP: The Court's indulgence? 21 THE COURT: Yes, sir. 22 BY MR. TRUMP: 23 Q. 24 a, subject to very limited access and it was, was very 25 sensitive, and I asked you some questions about whether anyone I believe you mentioned this particular operation was, was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 22 of 114 PageID# 5506 Seidel - Direct 789 1 raised any concerns, including the defendant. 2 raised any concerns, including the defendant, what would your 3 responsibility be as deputy of the office? 4 A. 5 that people back in the chain, back in Washington are aware of 6 it; and two, more importantly, ensure that any concerns were 7 addressed. 8 concerns don't reflect something in the operation that risks 9 the operation, the success of the operation and the security of Twofold, twofold. Had anyone One would be to report it to make sure And it's hard to generalize, but to ensure that the 10 the operation. 11 Q. And finally, Mr. Seidel, do you know James Risen? 12 A. No. 13 Q. Are you aware that he's a reporter? 14 A. Yes. 15 Q. Have you knowingly had any contact with him? 16 A. No. 17 in touch with him, and I believe that following my retirement, 18 I mean, I know that they had mentioned at one time or another 19 that he might be interested in talking to me, not about this 20 topic, but I don't recall any -- I know I didn't have any 21 substantive conversation with him. 22 made superficial telephone contact or otherwise. 23 Q. 24 information about the operation we've been discussing to anyone 25 outside of the CIA? He has -- I have some former colleagues who have been I don't believe we even Have you divulged to anyone, media or otherwise, any Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 23 of 114 PageID# 5507 Seidel - Cross 790 1 A. Absolutely not. 2 Q. To anyone within your knowledge who did not have the 3 appropriate clearances? 4 A. In no instance, no case, no time. 5 MR. TRUMP: Thank you. 6 THE COURT: All right, cross-examination? 7 MR. POLLACK: 8 9 Thank you, Your Honor. CROSS-EXAMINATION BY MR. POLLACK: 10 Q. 11 lawyers representing Mr. Sterling. 12 A. Fine, thank you. 13 Q. You mentioned a moment ago that some of your former 14 colleagues have mentioned to you that they've been in contact 15 with Mr. Risen. 16 include people who worked at the CIA? 17 A. Yes. 18 Q. And, Mr. Seidel, during your time in New York where -- the 19 time that you overlapped with Mr. Sterling while he was working 20 on what we've been calling Classified Program No. 1, did -- you 21 did not hear any criticism of Mr. Sterling's handling of the 22 asset known as Merlin, correct? 23 A. 24 activity or the, the operation. 25 Mr. Seidel, my name is Barry Pollack. I'm one of the How are you? When you say "former colleagues," does that I don't recall any criticism of his handling of that MR. POLLACK: Thank you. I don't have any other Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 24 of 114 PageID# 5508 Seidel - Redirect 1 791 questions. 2 THE WITNESS: 3 THE COURT: All right, any redirect? 4 MR. TRUMP: Very briefly. 5 THE COURT: It better be. 7 MR. TRUMP: I understand. 8 THE COURT: All right. 6 Thank you. That was just one question. 9 REDIRECT EXAMINATION 10 BY MR. TRUMP: 11 Q. 12 security agreements that you signed when you -- 13 A. Absolutely, yes. 14 Q. So even former agency people cannot discuss these matters 15 subsequent to their employment? 16 A. A retired CIA officer like yourself is still bound by the No, they cannot. 17 MR. TRUMP: Thank you. 18 THE COURT: All right, does anybody expect to call 19 Mr. Seidel again? 20 MR. POLLACK: 21 THE COURT: 22 23 No? Sir, you're excused as a witness. You're free to leave. THE WITNESS: 24 25 No, Your Honor. Thank you. (Witness excused.) THE COURT: All right, the next witness is Mr. Cohen, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 25 of 114 PageID# 5509 Cohen - Direct 1 792 I believe? 2 MR. OLSHAN: 3 THE COURT: 4 MR. OLSHAN: 5 DAVID COHEN, GOVERNMENT'S WITNESS, AFFIRMED 6 MR. OLSHAN: 7 THE COURT: 8 9 Yes, Your Honor. All right. The government calls David Cohen. May I proceed? Yes, sir. DIRECT EXAMINATION BY MR. OLSHAN: 10 Q. Good afternoon, sir. If you could please state and spell 11 your name for the record? 12 A. David Cohen. 13 Q. Mr. Cohen, are you currently employed? 14 A. Yes. 15 Q. And in what field are you employed? 16 A. I'm self-employed in the national security consulting 17 arena. 18 Q. Is that in the private sector? 19 A. Yes. 20 Q. Prior to your current work in the private sector, did you 21 hold government jobs? 22 A. Yes. 23 Q. What was your most recent government position? 24 A. I was the Deputy Commissioner for Intelligence for the New 25 York City Police Department. It's D-a-v-i-d C-o-h-e-n. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 26 of 114 PageID# 5510 Cohen - Direct 793 1 Q. How long did you hold that position? 2 A. I held it from 4 January -- February 2002 until 1 January 3 2013. 4 Q. 5 Intelligence Agency? 6 A. Yes. 7 Q. And what years did you work for the CIA? 8 A. From early 1966 until November 2000. 9 Q. Approximately 34 years? 10 A. 34-35 years. 11 Q. Can you briefly describe for the jury, Mr. Cohen, what 12 positions you held within the CIA during your tenure? 13 A. 14 Director in the analytical arm of the agency. 15 Division Chief in the Directorate of Operations. 16 the Associate Deputy Director for Intelligence, the second most 17 senior job in the analytical arm of the agency. 18 the Deputy Director of Operations, the head of the clandestine 19 services, and I oversaw a field office. 20 Q. Was that field office in New York? 21 A. Yes. 22 Q. Approximately when were you overseeing the field office in 23 New York? 24 A. October 1997 through early November 2000. 25 Q. Mr. Cohen, during the time that you worked for the CIA, Prior to that, did you have a career in the Central I served initially as a, as an analyst, became an Office I served as a I served as I served as Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 27 of 114 PageID# 5511 Cohen - Direct 794 1 did you hold security clearances? 2 A. Did I what? 3 Q. Did you hold security clearances? 4 A. Yes. 5 Q. For the whole time you worked at the CIA? 6 A. Yes. 7 Q. Were you trained in the proper handling of classified 8 information in connection with that -- those jobs? 9 A. Yes. 10 Q. How would you describe the importance of handling 11 classified information? 12 A. Extremely important. 13 Q. You testified that you worked in the New York office from 14 1997 to 2000 approximately. 15 A. From October 1997 through early November 2000. 16 Q. Excuse me, I apologize. 17 People's lives depend on it. Is that correct? During that time, was -- did you work in a secure CIA 18 facility in New York? 19 A. Yes. 20 Q. Were there specific access controls to gain entry to that 21 CIA space? 22 A. 23 know the, the access code to it. 24 Q. 25 case officers, for example -- have personally assigned secure I believe there was a safe-like entrance. You needed to Inside the secure CIA space, did individual employees -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 28 of 114 PageID# 5512 Cohen - Direct 795 1 safes? 2 A. 3 combination. 4 Q. 5 one case officer have access to another case officer's safe? 6 A. 7 overnight. 8 Q. 9 were to leave the space with classified documents or any kind Each, each individual would have their own safe and safe And did one case officer have access -- excuse me, would No. And it would be a breach of security to leave it open If a case officer or any employee in that secure space 10 of document, would anyone have necessarily known that at the 11 time? 12 13 MR. MAC MAHON: Your Honor, I object to this speculation in the form of -- 14 THE COURT: Well, more than that, I think this is now 15 cumulative, so we don't need to hear it from two or three 16 different witnesses. 17 MR. OLSHAN: Your Honor, this witness had not 18 testified about it, but I will move on if the Court would 19 prefer. 20 THE COURT: Move on. 21 BY MR. OLSHAN: 22 Q. 23 Mr. Cohen? 24 A. Yes. 25 Q. Do you see him in the courtroom? Do you know an individual named Jeffrey Sterling, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 29 of 114 PageID# 5513 Cohen - Direct 1 A. 796 Yes. 2 MR. OLSHAN: 3 THE COURT: Is that sufficient, Your Honor? Yes, that's sufficient in this case. 4 BY MR. OLSHAN: 5 Q. How did you come to know Mr. Sterling, Mr. Cohen? 6 A. Mr. Sterling was assigned to the New York office. 7 Q. So was he a subordinate of yours? 8 A. He was, he was a subordinate of mine, yes. 9 Q. And you were the top-ranking CIA officer in that office; 10 is that correct? 11 A. Yes. 12 Q. Did he report directly to you, or did he report to others? 13 A. He reported to others. 14 Q. During the time that you overlapped with Mr. Sterling in 15 New York, did you interact with him at all? 16 A. 17 We would pass. 18 Q. Did you socialize with him? 19 A. No. 20 Q. How would you characterize your, your working relationship 21 to the extent that you saw Mr. Sterling? 22 A. Rather good. 23 Q. Mr. Cohen, are you aware of a specific classified program 24 involving an effort to undermine the nuclear weapons 25 capabilities of Iran? Yes. I would see him in the, in the office, corridors. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 30 of 114 PageID# 5514 Cohen - Direct 797 1 A. Yes, I am. 2 Q. And was that program ongoing during the time that you were 3 in New York? 4 A. Yes, it was. 5 Q. And are you aware of whether Mr. Sterling was assigned in 6 some respect to work on that program? 7 A. Yes, he was. 8 Q. Can you describe for the jury what your day-to-day 9 involvement would have been in this particular program at the 10 time? 11 A. 12 essentially twofold: 13 dimensions of it, what its broad objective was, and to 14 understand it first and foremost; and secondly, if there were 15 any problems that developed in the course of that office's 16 involvement or participation in the program, those problems 17 would have been brought to my attention for me to understand it 18 and see what next steps would be. 19 Q. 20 any day-to-day responsibilities for this particular program? 21 A. 22 those that reported to me. 23 Q. 24 assignment or whether he had other assignments as well? 25 A. My, my involvement in the program would have been first, to understand the strategic As the head of that particular office, would you have had No, not especially. That would be the responsibility of Can you recall whether this was the defendant's only He had multiple assignments. That was certainly one. He Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 31 of 114 PageID# 5515 Cohen - Direct 798 1 had other responsibilities as well. 2 Q. 3 the significance of this particular classified program? 4 A. The significance of this program? 5 Q. Correct. 6 A. I would consider it vitally important to the national 7 security of the country. 8 Q. 9 during that time, how would you, how would you compare it? During your time in New York, how would you characterize Relative to other programs that you were dealing with 10 A. The single most important. 11 Q. During your career with the CIA, did you become familiar 12 with the handling of human assets? 13 A. Yes, I did. 14 Q. And can you tell the jury in your view and in your 15 experience how closely held the true name of a human asset is? 16 A. 17 human asset is the single most important piece of information 18 held by the Central Intelligence Agency because the 19 individual's life depended on it. 20 Q. 21 office? 22 A. Say that again? 23 Q. At some point, did the defendant leave the New York 24 office? 25 A. The, the holding -- the knowledge of the true name of a At some point, did the defendant leave the New York Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 32 of 114 PageID# 5516 Cohen - Direct 799 1 Q. And are you familiar with the circumstances under which he 2 left the office? 3 A. Yes. 4 Q. Did you have a role in his departure from the office? 5 A. It was my decision that he leave the office. 6 Q. And why was that? 7 A. Because he was not performing consistent with the 8 expectations of a person with his background and grade. 9 Q. Did you take any steps to assist the defendant in working 10 to achieve what he should be doing at the time? 11 A. 12 been talked to about it and given guidance on what should be 13 done to sort of bring him up to the level of expectations for 14 an individual, a case officer with his, at again his grade 15 level. Yeah. His performance was, was extremely subpar. He had 16 At, at some point, when the situation got more 17 complicated, he was given an -- would have been given, I 18 believe he was, an advance work plan which maps out the steps 19 one would take to, to achieve the level that was expected. 20 Mr. Sterling's situation, you know, all of us worked very, very 21 hard to make sure that, you know, he had the maximum 22 opportunity to succeed. 23 Q. 24 that he would succeed? 25 A. In Let me ask you, did you work with Mr. Sterling to -- so Well, I personally didn't, but I set the guidelines that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 33 of 114 PageID# 5517 Cohen - Direct 800 1 we wanted this gentleman to succeed in the New York area 2 because we had great expectations for him and thought it was an 3 arena where he should be able to do well. 4 Q. Ultimately, did he meet those expectations? 5 A. He did not meet those expectations with respect to the -- 6 and they were quite minimal, I might add. 7 Q. Mr. Cohen, do you know an individual named James Risen? 8 A. I know the name. 9 Q. And can you recall whether you've ever spoken to 10 Mr. Risen? 11 A. 12 World Trade Center, when I was still with -- in the private 13 sector with American International Group at that time, and 14 sometime between that and before February 2000, when I took my 15 responsibilities with the New York City Police Department, 16 Mr. Risen called me to talk -- to ask my, my views about some 17 of the very vague, because it was such a long time ago, 18 regarding the 9/11 events, but I chose not to talk to him. 19 Q. Did you defer him to the CIA -- or refer him to the CIA? 20 A. I would have said, "Go talk to someone else," and it might 21 have been CIA. 22 Q. 23 recall? 24 A. No. 25 Q. And have you ever spoken to him about the specific I think in that period between 9/11, the attacks on the Anybody but me. Have you ever spoken to Mr. Risen again that you can Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 34 of 114 PageID# 5518 Cohen - Cross 801 1 classified program that we've been discussing today? 2 A. No. 3 Q. Have you ever discussed this classified program with 4 anybody whom you believed was not authorized to know about it? 5 A. No. 6 MR. OLSHAN: 7 THE COURT: 8 MR. OLSHAN: 9 THE COURT: 10 One moment, Your Honor? Yes, sir. That's all I have, Your Honor. All right. MR. MAC MAHON: 11 Mr. MacMahon? Thank you, Your Honor. CROSS-EXAMINATION 12 BY MR. MAC MAHON: 13 Q. 14 lawyers here for Mr. Sterling. Mr. Cohen, my name is Edward MacMahon. 15 I'm one of the Good afternoon. Was it your testimony that you were in the same 16 office as Mr. Sterling in New York? 17 A. The same office suite. 18 Q. The same office suite. 19 well, you had a suite. 20 office than Mr. Sterling? 21 A. Yes. 22 Q. Did you ever see Mr. Sterling's work space? 23 A. It was virtually identical to everyone else's, I believe. 24 Q. And how long -- were you able to walk by his work space 25 and see what he was doing? Well, how far away were you -- You were -- did you have a bigger Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 35 of 114 PageID# 5519 Cohen - Cross 802 1 A. I don't ever recall peering in. 2 Q. All right, let me ask the question a different way. 3 work space -- none of us have been to the office, CIA office in 4 New York, okay? 5 it? 6 A. Yes. 7 Q. And was it -- did you ever go by and see Mr. Sterling's 8 door closed? 9 A. The Did Mr. Sterling's work space have a door on Do you remember either way? I'm sure over time, I would have walked by, and sometimes 10 it would be open, and other times it would be closed. 11 Q. 12 office? 13 A. I don't recall. 14 Q. There wasn't a, a big printer somewhere that did print 15 jobs in the office? 16 A. I don't recall. 17 Q. Did the CIA when you were running that office have the 18 ability to track what case officers were printing off of their 19 computers? 20 A. I don't recall. 21 Q. Did they have any way to track what agents were doing on 22 the agency computers, meaning see who they were e-mailing, see 23 what Web sites they were looking at, anything like that? 24 25 And did every case officer have their own printer in their MR. OLSHAN: foundation. Your Honor, I'm going to object to Mr. Cohen hasn't established that he had any Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 36 of 114 PageID# 5520 Cohen - Cross 1 position where he would have known about -- 2 3 MR. MAC MAHON: THE COURT: MR. MAC MAHON: Can I ask the question a different way, Your Honor? 8 9 Well, I'm the chief judge of this building, and I couldn't tell you how the IT systems work. 6 7 He says he ran the office, Your Honor. 4 5 803 THE COURT: Go ahead. BY MR. MAC MAHON: 10 Q. Were you, were you aware in 2000 in the New York office 11 whether the CIA was able to see what a, what a particular CIA 12 officer was doing on their computer? 13 A. 14 what I would call counterintelligence techniques, but I 15 couldn't detail them. 16 Q. 17 had to employ? You know, CIA over the years has implemented a number of Why were there counterintelligence techniques that the CIA 18 MR. OLSHAN: Objection, Your Honor. 19 THE COURT: 20 MR. MAC MAHON: 21 MR. OLSHAN: 22 THE COURT: 23 MR. MAC MAHON: Do we need to approach? Excuse me? No, my objection is relevance. Mr. MacMahon? Your Honor, I'm asking him 24 questions -- the evidence in the case will be that there was 25 no, the CIA can't track Mr. Sterling's computer use whatsoever Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 37 of 114 PageID# 5521 Cohen - Cross 804 1 at this time, and I'm trying to see if that's correct, if he 2 has any personal knowledge of that. 3 THE COURT: If this witness would know. So the right 4 question, I think, is how familiar were you with the IT 5 systems? 6 THE WITNESS: I can barely do an e-mail. 7 THE COURT: 8 MR. MAC MAHON: That's the answer, all right. 9 Thank you. (Laughter.) 10 MR. MAC MAHON: 11 THE COURT: 12 THE WITNESS: Thanks for saving me time. All right. You're not the only one. Thank you. 13 BY MR. MAC MAHON: 14 Q. 15 Merlin, as we call it here, was the most important operation 16 that the CIA had ongoing in 1999 and 2000? Sir, did you, did you tell this jury that the operation 17 THE COURT: 18 THE WITNESS: That's not what he said. I don't remember hearing that word, 19 "Merlin," until just now. 20 BY MR. MAC MAHON: 21 Q. 22 may have -- if I'm being corrected by the judge, I probably did 23 misunderstand your testimony. 24 the question as to how important the operation that we're 25 talking about was? Well, the program that we're talking about today, and I What, what was your answer to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 38 of 114 PageID# 5522 Cohen - Cross 805 1 A. I think it was one of the most important operations CIA in 2 that era was running, and I say that on the basis of several 3 factors: 4 position in that, in that field office and my 50-year 5 understanding of national security matters. 6 Q. 7 Mr. Sterling was a subpar employee, right? 8 A. He certainly was on, on a lot of matters. 9 Q. All right. my, my senior positions held at the agency and my, my Right. And that's the same time that you determined that And that was your decision to put him on one 10 of the most important programs even though you, Mr. Cohen, 11 thought he was a subpar employee? 12 A. 13 attached to him. 14 recollection. 15 Q. 16 correct? 17 A. Absolutely. 18 Q. All right. 19 program? 20 A. 21 Washington, where they could assess the totality of his 22 responsibilities. 23 Q. 24 taken any classified documents out of the building, right? 25 A. I think he came to the, the office with that program I didn't make that decision to the best of my But you made the assessment that he was a subpar employee, And did you ask to have him taken off the I didn't ask for that. I asked that he be returned to And no one had reported to you that Mr. Sterling had ever You'd have to say that again. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 39 of 114 PageID# 5523 Cohen - Cross 806 1 Q. Had anyone ever told you in 2000, when you were 2 Mr. Sterling's supervisor, that Mr. Sterling took classified 3 information out of the building? 4 A. I don't know if anybody would have known it. 5 Q. Sir, the question was nobody told you that, did they? 6 A. Nobody told me, but it didn't -- doesn't mean it didn't 7 happen. 8 Q. 9 correct? All right. It was never brought to anybody's attention, 10 A. No. 11 Q. All right. 12 that Mr. Sterling violated any security protocol ever when he 13 worked for you at the CIA, correct? 14 A. 15 knowledge of that. While he worked for me, I didn't have any firsthand 16 17 And you don't have any, any proof whatsoever MR. MAC MAHON: Thank you. 18 THE COURT: 19 MR. OLSHAN: 20 THE COURT: 21 That's all I have, Your Honor. testimony. All right, any redirect? No. All right, Mr. Cohen, thank you for your You're excused as a witness. 22 (Witness excused.) 23 THE COURT: Your next witness? 24 MR. FITZPATRICK: 25 THE COURT: Eileen Swicker, please. All right. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 40 of 114 PageID# 5524 Swicker - Direct 1 2 807 MR. FITZPATRICK: Your Honor, can I speak to Mr. Pollack and Mr. MacMahon? 3 THE COURT: 4 (Discussion among Mr. Fitzpatrick, Mr. MacMahon, and 5 Yes, sir. Mr. Pollack off the record.) 6 MR. FITZPATRICK: Thank you, Your Honor. 7 EILEEN SWICKER, GOVERNMENT'S WITNESS, AFFIRMED 8 DIRECT EXAMINATION 9 BY MR. FITZPATRICK: 10 Q. Good afternoon, ma'am. 11 name and spell your name for the court reporter? 12 A. 13 S-w-i-c-k-e-r. 14 Q. Ma'am, where is your current employment? 15 A. I'm an attorney in Leesburg, Virginia. 16 Q. And did you graduate from law school? 17 A. I did in -- 18 Q. When was that? 19 A. -- 2008. 20 Q. Did you have a career prior to attending law school? 21 A. I did. 22 Q. When did you retire? 23 A. In 2005. 24 Q. During your career, did you assume several overseas 25 positions? Okay. If you could please state your My name is Eileen Swicker, and it's spelled I spent 32 years with CIA. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 41 of 114 PageID# 5525 Swicker - Direct 808 1 A. Yes, I did. 2 Q. I want to direct your attention particularly -- did you 3 also serve domestically within the United States? 4 A. Yes, I did. 5 Q. I want to direct your attention to 1999. 6 new job at that point? 7 A. 8 director of operations. 9 Q. How did you get that job? 10 A. I put in an application for it. 11 Q. And for how long did you serve as the chief of staff to 12 the deputy director of operations? 13 A. For about two years. 14 Q. Can you explain for the jury what the Directorate of 15 Operations is? 16 A. 17 clandestine operations, espionage, and collecting intelligence. 18 Q. And what were your responsibilities as the chief of staff? 19 A. I was responsible for the nonoperational matters, policy, 20 budget, personnel matters, and I would be the representative 21 for the director on handling these issues. 22 Q. 23 did you have an occasion to interact with Jeffrey Sterling? 24 A. Yes, I did. 25 Q. And do you see Mr. Sterling in the courtroom today? Yes, I did. Did you assume a I became the chief of staff to the deputy It's the section of CIA that's responsible for overseas During the course of your tenure as the chief of staff, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 42 of 114 PageID# 5526 Swicker - Direct 1 A. 809 Yes, I do. 2 MR. FITZPATRICK: 3 MR. MAC MAHON: We'll stipulate the identification 4 going forward if it helps. 5 MR. FITZPATRICK: 6 Is that sufficient, Your Honor? I think it's important for the record, Your Honor. 7 THE COURT: I think just that simple question but it 8 will be assumed that there's no problem. 9 witness can say yes or no. 10 MR. FITZPATRICK: Just ask it so the Thank you, Your Honor. 11 Q. Can you explain the circumstances of why you had 12 interactions with Jeffrey Sterling? 13 A. 14 me as an introduction into the office of the DDO with some 15 issues that he was raising about how he was being treated in 16 his current job and a previous job and that he believed he was 17 being treated unfairly, and he wanted to raise these issues at 18 a sufficient level so that attention would be paid to them. 19 Q. 20 that correct? 21 A. That's right. 22 Q. And where was Mr. Sterling stationed? 23 A. He was in our office in New York. 24 Q. Did he later come to headquarters? 25 A. I believe he was directed to leave New York and come to I believe it was around the middle of 2000, he came to see And at this point in time, you were at headquarters; is Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 43 of 114 PageID# 5527 Swicker - Direct 810 1 Washington and come to work in headquarters. 2 Q. 3 just described, was that face to face, in person? 4 A. He came to my office. 5 Q. How else would you communicate with Mr. Sterling? 6 A. Several times he called and would give me an update on his 7 situation, ask questions, but I believe it was primarily by 8 telephone after that initial meeting. 9 Q. And does a particular phone call stand out in your mind? 10 A. After he came to me the first time, he called several 11 times concerning having his lawyers cleared and the speed with 12 which they are being cleared, and to give an update, he had 13 made, made a representation to the agency on what he thought 14 would be an equitable settlement, and he called to complain 15 that it had been rejected out of hand. 16 Q. 17 Government Exhibit No. 52, please. How many -- can you recall -- in that meeting that you With the assistance of Mr. Wood, I'd like to show you 18 THE COURT: 19 MR. MAC MAHON: 20 the book. Is there going to be an objection to 52? Excuse me, Your Honor. The Court's indulgence? 21 THE COURT: 22 MR. FITZPATRICK: 23 for that, may I ask another question? 24 25 I'm getting THE COURT: Yes, sir. Your Honor, while they're looking Yes. BY MR. FITZPATRICK: Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 44 of 114 PageID# 5528 Swicker - Direct 811 1 Q. You had made a reference that Mr. Sterling had called you 2 about having his lawyers cleared. 3 lawyer means. 4 A. 5 attorney for an agency matter, they have to be cleared to the 6 Secret level, which involves some sort of a background 7 investigation, and there is an established procedure, and it 8 usually takes about three weeks. 9 Q. Generally, if someone is looking to be represented by an At least then it did. Thank you. 10 11 Describe what clearing a Do you have Government Exhibit 52 in front of you? A. Yes. 12 MR. MAC MAHON: There's no objection, Your Honor. 13 THE COURT: 14 MR. FITZPATRICK: 15 (Government's Exhibit No. 52 was received in All right, 52 is in. Thank you. 16 evidence.) 17 BY MR. FITZPATRICK: 18 Q. Is this a Lotus Note? 19 A. Yes, it is. 20 Q. Would you tell us what a Lotus Note is? 21 A. A Lotus Note is the technical name for the agency's 22 internal e-mail. 23 Q. And did you prepare this particular note? 24 A. Yes, I did. 25 Q. And to whom did you send it? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 45 of 114 PageID# 5529 Swicker - Direct 812 1 A. I sent it to the deputy director for operations and to 2 three or four other people who were involved in Mr. Sterling's 3 case. 4 Q. And what does the Lotus Note reflect? 5 A. It reflects a half-hour conversation that I had with him 6 the previous day by telephone. 7 Q. And is that reflected in the first line of the Lotus Note? 8 A. Yes. 9 Q. And why did you take the step to memorialize this 10 particular conversation in a, in a Lotus Note? 11 A. 12 of equitable treatment and harassment, and we were concerned 13 about it. 14 therefore, I was going to make sure that any information that I 15 had, I made it a matter of record and conveyed it to everyone 16 else who was involved in the issue. 17 Q. 18 that is within quotation marks. 19 quotation marks? 20 A. That would be if I was quoting him directly. 21 Q. And you prepared this particular note within a day, 24 to 22 36 hours of the conversation; is that correct? 23 A. 24 and then just held it until the following morning to make sure 25 I reviewed and I had everything accurate. The issues that Mr. Sterling had raised were serious ones If this is accurate, it's got to be dealt with, and Now, within the Lotus Note, there is particular language Why do you put things within Most likely I prepared it shortly after the conversation Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 46 of 114 PageID# 5530 Swicker - Direct 813 1 Q. Describe your, your note taking when you're having 2 conversations with case officers. 3 A. 4 for years. 5 sitting discussing an issue with someone or when talking to 6 them on the telephone. 7 Q. 8 e-mail Lotus Note? 9 A. Yes. 10 Q. I want to direct your attention to the second paragraph. 11 If I could -- in particular, the last, the last sentence. 12 you just read the last sentence aloud, please? 13 A. 14 OGC, he cited his 'distaste' for the agency." 15 Q. And "distaste" was a quote from him? 16 A. Right. 17 Q. Now, describe this conversation you're having. 18 reference OGC, what is that? 19 A. 20 of the agency where the attorneys are. 21 Q. 22 Mr. Sterling? 23 A. Mr. Sterling had a law degree. 24 Q. And what were you suggesting to him? 25 A. He was not interested in going back to his parent I kept a series of steno notebooks. I had been doing that And I would take meticulous notes either when And would you rely upon those notes when you prepared this Can "He was thinking about a community job; when I asked about When you That's the Office of General Counsel, which is the section Why do you mention OGC, or Office of General Counsel, to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 47 of 114 PageID# 5531 Swicker - Direct 814 1 division, which is the Near East division, nor permanently 2 staying in the agency, but he needed to find a job within the 3 agency, and my suggestion was to match his skill with a section 4 of the agency that could possibly use it. 5 Q. And what was his response to you when you suggested that? 6 A. He didn't like the idea. 7 Q. At the beginning of the next paragraph, you have in 8 quotes "what had been thrown at" him. 9 Can you explain how that statement was made to you? 10 A. In the earlier part of the conversation, Mr. Sterling was 11 complaining that he had made an offer with what he believed to 12 be a reasonable settlement of his issues and a severance 13 package, and that this has just been disregarded completely. 14 He was, did not want to go to work in any division. 15 being pushed to do that, and he considered all of these things 16 to be unfair. 17 Q. 18 There's a reference at the very top of that page to headphones? 19 A. 20 New York, he cited an incident that had happened that he was in 21 the habit of using, I think, probably a Walkman at that time 22 with headphones, and when he would work in his office, he'd 23 have the headphones on, and that someone had damaged them, and 24 that this was another indication of how he was being treated 25 unfairly, but in this phone conversation in August, he was He was If you could turn, please, to the next page of that note? Yeah. When he first came to see me when he came down from Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 48 of 114 PageID# 5532 Swicker - Direct 815 1 commenting that he had heard that people were trying to make it 2 out that he had damaged the headphones himself. 3 Q. 4 repeated theme? 5 A. At least a couple of times, yeah. 6 Q. Now, in, in this particular conversation that you had with 7 Mr. Sterling -- and I think you referenced that it was quite a 8 lengthy, 30-minute-long phone conversation; is that correct? 9 A. That's correct. 10 Q. Did he make any reference to a complaint about a 11 mishandled program? 12 A. No. 13 Q. Anything about a rogue operation? 14 A. No. 15 Q. In all of your communications or conversations with 16 Mr. Sterling, did those -- did that subject ever come up? 17 A. No, it didn't. 18 Q. Now, you said you were the chief of staff to the 19 directorate of operations? 20 A. Correct. 21 Q. Would your directorate have been the appropriate place to 22 lodge a complaint about a mishandled overseas operation? 23 A. So this, this issue with the headphones, this was a Definitely. 24 MR. FITZPATRICK: 25 THE COURT: Court's indulgence, Your Honor? Yes, sir. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 49 of 114 PageID# 5533 Swicker - Cross 816 1 BY MR. FITZPATRICK: 2 Q. 3 been raised about a mishandled program, would that have 4 registered a memory with you? Just following up on that last question, had those issues 5 MR. MAC MAHON: 6 THE WITNESS: 7 MR. MAC MAHON: 8 THE COURT: 9 10 Your Honor, I object. Definitely. The witness said it didn't happen. I think this witness can answer what would -- what the normal course of action would be had it been done, so I'm going to overrule the objection. 11 MR. FITZPATRICK: Thank you, Your Honor. 12 Q. Do you understand my question? 13 A. Could you repeat it? 14 Q. Sure. 15 operation been raised with you, would that have triggered a 16 memory with you? 17 A. 18 serious. 19 20 Had an allegation of a mishandled or a rogue Yeah, because that would have been something equally MR. FITZPATRICK: Thank you. Nothing further at this time, Your Honor. 21 THE COURT: 22 MR. MAC MAHON: 23 All right. Mr. MacMahon? Very briefly, Your Honor. CROSS-EXAMINATION 24 BY MR. MAC MAHON: 25 Q. Ma'am, my name is Edward MacMahon. I'm one of the lawyers Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 50 of 114 PageID# 5534 Swicker - Cross 1 here for Mr. Sterling. 2 817 Good afternoon. Now, do you -- you wouldn't have had any need to know 3 anything about any classified program that Mr. Sterling had 4 worked on, right? 5 A. It -- not necessarily. 6 Q. Right. 7 items to people not entitled to know anything about it wouldn't 8 have told you anything about a classified program, correct? 9 A. And an officer trained not to disclose classified Well, if he were coming to raise an issue with the DDO and 10 he's talking to the DDO's chief of staff, I would expect he'd 11 raise all the issues that he would want to raise. 12 Q. 13 about, correct? 14 A. As the -- I had the Top Secret/SCI clearance. 15 Q. And you were -- were you read into the program that's at 16 issue in this case? 17 A. 18 prepared documentation for the, the incoming administration. 19 Q. 20 mentioned anything to you that happened that had anything to do 21 with the facts or anything to do with this case, right? 22 A. This case? 23 Q. Do you even know what this case is about? 24 A. Yes. 25 Q. Okay. He would raise issues to you that you were cleared to hear I believe I was at least familiar with it. We had But you -- Mr. Sterling in none of your meetings ever Did he make any reference to you in any of your Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 51 of 114 PageID# 5535 Swicker - Cross 818 1 meetings, phone calls, or otherwise about any facts about the 2 classified program at issue in this case? 3 A. No. 4 Q. Or about the agent -- the Human Asset No. 1 that we're 5 talking about in this case? 6 about that to you, either, right? 7 A. No. 8 Q. The -- you also were asked questions by counsel about 9 Mr. Sterling wanting his lawyers cleared, right? Mr. Sterling never said a word 10 A. Correct. 11 Q. And that's because even a CIA agent is not allowed to tell 12 his lawyers anything about what they've been working on until 13 they've been cleared by the CIA, correct? 14 A. 15 lawyer to be cleared, and from his conversation with me, he 16 expected one lawyer to handle his issues and another one to be 17 the one negotiating with the agency, and it was the negotiating 18 attorney who had not yet been cleared. 19 Q. 20 Classified Program No. 1, were they? 21 A. I don't know what they were cleared into. 22 Q. That information never reached your way, did it? 23 A. Of their clearances? 24 Q. Yeah. 25 A. No. He had one cleared lawyer. Right. He was waiting for a second And those lawyers were never cleared into Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 52 of 114 PageID# 5536 Swicker - Cross 819 1 Q. But Mr. Sterling was respecting as best you could tell the 2 requirement that his lawyers be cleared before he could proceed 3 with his EEO complaint, correct? 4 A. And he had a cleared lawyer. 5 Q. He was respecting that process, correct? 6 A. At the point that he complained to me, he was waiting for 7 a second attorney to be cleared, but he had the EEO lawyer 8 cleared. 9 Q. But he was waiting, waiting for the second lawyer to be 10 cleared, correct? 11 A. He was the negotiating attorney. 12 Q. Okay. 13 officer to do would be to wait until his attorney was cleared, 14 correct? 15 A. Yes. 16 Q. And that's what he did, right? 17 A. I don't know. 18 Q. Well, you never heard any information that he didn't, did 19 you? And that's what you would have expected a trained 20 MR. FITZPATRICK: 21 THE COURT: Objection. Asked and answered. I'm going to overrule the objection. One 22 more time, Mr. MacMahon. 23 BY MR. MAC MAHON: 24 Q. 25 Mr. Sterling told his lawyers anything they weren't cleared to No information was ever transmitted to you that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 53 of 114 PageID# 5537 Swicker - Redirect 820 1 hear about his EEO case, right? 2 A. I have no information about that. 3 Q. And in, in Exhibit No. 52, which was shown to the jury 4 before -- if we could, Mr. Francisco, please? 5 At the bottom, do you see the reference there to 6 Mr. Sterling's response, given what was thrown at him? 7 Mr. Sterling did end up filing a discrimination case against 8 the agency, didn't he? 9 A. Yes, he did. 10 Q. And there wasn't anything disclosed in that discrimination 11 case that breached any of Mr. Sterling's classified protocols 12 at all, right, to your knowledge? 13 A. I don't have any information about that. 14 Q. Did anybody ever investigate Mr. Sterling's claim about 15 the Walkman? 16 A. I don't know. 17 MR. MAC MAHON: 18 THE COURT: 19 MR. FITZPATRICK: 20 Nothing further, Your Honor. Any redirect? Thank you, Your Honor. REDIRECT EXAMINATION 21 BY MR. FITZPATRICK: 22 Q. 23 matters in your position? 24 A. No, I didn't. 25 Q. You were the chief of staff? Did you have any direct responsibilities over any EEO Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 54 of 114 PageID# 5538 Swicker - Recross 821 1 A. Correct. And there's an EEO staff. 2 Q. I want to turn your attention back to the paragraph that 3 Mr. MacMahon referred to you, the last one. 4 paragraph makes a reference to Representative Dixon. 5 that referring to? 6 A. 7 Committee on Intelligence, which is one of the oversight 8 committees in Congress, and I don't recall how we had found out 9 about it, perhaps through Congressional Affairs, but In addition -- the What is Representative Dixon was a member of the House Select 10 Mr. Sterling had made a call on Mr. Dixon to raise his 11 complaints. 12 Q. 13 Representative Dixon, something about inside and outside the 14 agency? 15 A. 16 long and as loud as possible, and both inside and outside the 17 agency, just laying down what his intentions were. 18 19 What's referenced just preceding that parens reference to Yeah, he told me that he intended to pursue his claim as MR. FITZPATRICK: Thank you, ma'am. I have no further questions. 20 THE COURT: 21 MR. MAC MAHON: 22 Any recross? Yes, just briefly, Your Honor. RECROSS EXAMINATION 23 BY MR. MAC MAHON: 24 Q. 25 Mr. Sterling had gone up there to complain? Ma'am, someone called from the House to tell you that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 55 of 114 PageID# 5539 Swicker - Recross 822 1 A. I don't remember how we found out. 2 Q. And Mr. Sterling had every right in the world to go to the 3 House of Representatives and complain about what he perceived 4 as his treatment at the CIA, correct? 5 A. I don't know. 6 Q. How did the CIA find out about Mr. Sterling having a 7 meeting with a congressman? 8 A. I don't know. 9 Q. The reference to inside and outside the agency, as you 10 said, Mr. Sterling did make public complaints about his 11 discrimination, what he believed was discrimination at the CIA, 12 correct? 13 A. I believe so. 14 Q. And he gave interviews and he went on television and he's 15 quoted in articles, correct? 16 A. That was his EEO case. I don't know. 17 MR. MAC MAHON: 18 THE COURT: 19 That's all, Your Honor. All right, is anybody going to call this witness again? 20 MR. FITZPATRICK: 21 THE COURT: 22 23 testimony. All right, ma'am, thank you for your You're excused. THE WITNESS: 24 25 No, Your Honor. Thank you. (Witness excused.) THE COURT: Your next witness? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 56 of 114 PageID# 5540 Lyons - Direct 823 1 MR. FITZPATRICK: 2 THE COURT: Carrie Newton Lyons, please. All right. 3 CARRIE NEWTON LYONS, GOVERNMENT'S WITNESS, AFFIRMED 4 DIRECT EXAMINATION 5 MR. FITZPATRICK: Thank you, Your Honor. 6 Q. Good afternoon, ma'am. 7 A. Hi. 8 Q. If you could please state your name and please spell your 9 name so the court reporter can take it down? 10 A. Okay. My name is Carrie Lyons. 11 Lyons is L-y-o-n-s. 12 Q. Carrie is C-a-r-r-i-e. Thank you. 13 If you -- Ms. Lyons, if you need a cup of water, if 14 you need to take a break, we're happy to indulge you, okay? 15 A. Okay. 16 Q. Do you -- what is your current job? 17 A. I'm a supervisory attorney at Congressional Research 18 Service, which is part of the Library of Congress. 19 Q. And, ma'am, do you have a law degree? 20 A. Yes, I do. 21 Q. And where did you obtain your law degree? 22 A. I went to Harvard Law School. 23 Q. And when did you graduate? 24 A. I graduated in 2005. 25 Q. Does that mean you started in 2002? Thank you. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 57 of 114 PageID# 5541 Lyons - Direct 824 1 A. Correct. 2 Q. And did you have a career prior to going to law school? 3 A. Yes, I did. 4 Q. And where was your career? 5 A. I worked at the Central Intelligence Agency. 6 Q. And how long were you at the CIA? 7 A. I was there for about nine years. 8 Q. And I want to direct your attention -- were you a case 9 officer? 10 A. Yes. I was an operations officer, correct. 11 Q. Operations officer. 12 interchangeably? 13 A. Yes, they are. 14 Q. I want to direct your attention to about September of 15 2000, that time period. 16 you go overseas? 17 A. In September of 2000, yes, I was overseas. 18 Q. And had you, had you become married at some point? 19 A. Yes, I did. 20 Q. And did you go over to join your husband? 21 A. In September of 2000, yes. 22 Q. And how long were you over there? 23 A. Well, I was overseas -- I was over -- I went to a location 24 in September of 2000, but then around that time, I was recalled 25 from overseas and came stateside. Are those two terms used Without telling us exactly where, did Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 58 of 114 PageID# 5542 Lyons - Direct 825 1 Q. So you were only overseas for a short time, is that 2 correct, in that frame? 3 A. Yeah. 4 Q. And when you were recalled, where did you go? 5 A. To CIA headquarters. 6 Q. And do you recall for how long were you at CIA 7 headquarters? 8 A. For about nine, between nine and ten months. 9 Q. And while you were there, did you share an office location 10 or did you spend quite a bit of time with Jeffrey Sterling? 11 A. 12 Mr. Sterling, yes. 13 Q. 14 the courtroom today? 15 A. For part of the time, I was located in an office with And do you know Mr. Sterling? Do you see Mr. Sterling in Yes, I do (indicating). 16 MR. FITZPATRICK: 17 THE COURT: Thank you. Identity established. 18 BY MR. FITZPATRICK: 19 Q. 20 went back overseas? 21 A. Yes, that's correct. 22 Q. And as a frame of reference, September 11, 2001, when was 23 it in relationship to that event? 24 A. I'm not sure I understand the question. 25 Q. That day, September 11 -- When -- did there come a point in time in 2001 when you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 59 of 114 PageID# 5543 Lyons - Direct 826 1 A. I was overseas? 2 Q. I'm asking you. 3 A. Yeah, I was overseas on September 11. 4 Q. Do you know when you had gone back overseas? 5 A. Probably about three months prior to that, approximately 6 three months prior to that. 7 Q. And do you know what out-processing is from the CIA? 8 A. Yes. 9 Q. Why don't you describe that for us. 10 A. When I resigned from the organization, I had been 11 overseas. 12 necessary paperwork to resign, do, you know, a retirement paper 13 and that kind of thing. 14 Q. 15 final resignation from the CIA back at headquarters? 16 A. Yes, yes. 17 Q. And would that have been in January of 2002? 18 A. Yes. 19 Q. During that time period, did you have some communications 20 with Mr. Sterling? 21 A. Yes, I did. 22 Q. And do you recall having a conversation with him about a 23 newspaper? 24 A. Yes, I do. 25 Q. And is there a particular reason why this conversation I did it. I came back into the United States to do the And did you have to finalize your out-processing or your I had to return to CIA headquarters. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 60 of 114 PageID# 5544 Lyons - Direct 827 1 sticks in your mind? 2 A. 3 a little bit surprised by what was said. 4 Q. What did he state to you about a newspaper? 5 A. Well, he said that he had confirmed the location of the 6 CIA office, the New York City CIA office that had been 7 destroyed in the September 11 event. 8 Q. And did he mention a particular publication? 9 A. I don't recall a particular publication. 10 Q. Could you distinguish it, did he reference a newspaper or 11 a magazine? 12 A. 13 newspaper. 14 Q. 15 Mr. Sterling's tone or his demeanor when he was stating this to 16 you? 17 A. 18 kind of boasting. 19 Q. 20 by this statement. 21 A. Correct. 22 Q. Why were you taken aback? 23 A. I wasn't sure if the information was classified or not. 24 Post-September 11, some information had seemed to be released 25 and some didn't, and I wasn't sure where that information fell. Yes. I was taken aback a bit by the conversation and was I recall a newspaper, but I don't recall the name of the Do you recall the, the conversation, can you recall It seemed like he was showing off a little bit about it, And you said earlier that you were, you were taken aback Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 61 of 114 PageID# 5545 Lyons - Cross 828 1 Q. Is this information that you would have revealed to a 2 newspaper? 3 A. I don't think I would have revealed it, no. 4 Q. Now, during this -- backing up, this time period that you 5 were in headquarters and you spent some time with Mr. Sterling, 6 you and, you and Mr. Sterling developed a friendship; is that 7 correct? 8 A. Yes. 9 Q. And do you like Mr. Sterling? 10 A. I did at the time, yes. 11 Q. How long has it been since you've had any contact with 12 him? 13 A. 14 conversation that we were discussing earlier. Since that -- to the best of my recollection, since that 15 16 MR. FITZPATRICK: The Court's indulgence for one moment? 17 Your Honor, I have no further questions at this time. 18 THE COURT: All right. 19 Mr. MacMahon? CROSS-EXAMINATION 20 BY MR. MAC MAHON: 21 Q. 22 here with Mr. Sterling. Ms. Lyons, my name is Edward MacMahon. 23 I'm an attorney You were overseas on September 11; is that what you 24 said? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 62 of 114 PageID# 5546 Lyons - Cross Right. 829 1 Q. And you, you filed a discrimination case against 2 the CIA as well, correct? 3 A. Correct. 4 MR. FITZPATRICK: 5 THE COURT: 6 Relevance. I'm going to allow just a little bit. We'll see, assuming this is not going to go too far. 7 8 Objection. MR. MAC MAHON: I'm not going to linger on this point, Your Honor. 9 THE COURT: All right, go ahead. 10 BY MR. MAC MAHON: 11 Q. You did, you filed a case as well, correct? 12 A. Correct. 13 Q. And that's how you came to meet Mr. Sterling in 2002 is 14 the next time you saw him would have been in what you called 15 the penalty box with Mr. Sterling, right? 16 A. 17 we were seated together in a small office that he named the 18 penalty box. 19 Q. Well, you referred to it as the penalty box as well? 20 A. Yes. 21 Q. You did. 22 supposed to have communication with other CIA officers, 23 correct? 24 A. No, I was not given those instructions. 25 Q. You weren't given those instructions at all. Well, we were -- I returned from an overseas location, and And at that time, the two of you weren't Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 63 of 114 PageID# 5547 Lyons - Cross 1 830 And, and exactly when was it that you came back to 2 the United States after the attacks of September 11? 3 A. That would have been in that January 2002. 4 Q. So four months after the attacks, correct? 5 A. Yeah. 6 Q. Okay. 7 know if the information was classified, correct? 8 A. What information? 9 Q. That the CIA had had an office in New York that was And you told Mr. Fitzgerald that you didn't even 10 destroyed in the September 11 attacks? 11 A. 12 or not. 13 Q. You don't know whether it is today, correct? 14 A. That is correct. 15 Q. And you don't know whether -- what reporter, if any, 16 Mr. Sterling even told that to, correct? 17 A. I don't know which reporter; that's correct. 18 Q. And you don't know whether that was actually even 19 published, correct? 20 A. That is correct. 21 Q. You don't know whether he was asked about something that 22 had already been published by some other author, correct? 23 A. Correct. 24 Q. In fact, you don't know anything about that? 25 A. About? Correct. I did not know at the time if it was classified Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 64 of 114 PageID# 5548 Lyons - Cross 831 1 Q. About whether it was published, what newspaper, if any, it 2 was published in at all, correct? 3 A. Correct. 4 Q. Did you take any efforts to determine whether the 5 information was classified or not? 6 A. No, I did not. 7 8 MR. FITZPATRICK: repetitive. 9 Objection, Your Honor. This is He's asked the same question three times. THE COURT: A slightly different version. I'll allow 10 it, but I'm sure we're almost done. 11 BY MR. MAC MAHON: 12 Q. 13 you take any effort to find out whether the information was 14 classified? 15 A. No. 16 Q. Did you report it to any of your supervisors? 17 A. No. 18 Q. Do you remember telling the FBI that it might have been in 19 The Wall Street Journal or The Post? 20 A. After you heard this from Mr. Sterling, as you say, did Yeah. 21 MR. MAC MAHON: 22 THE COURT: 23 MR. FITZPATRICK: 24 THE COURT: 25 testimony. That's all, Your Honor. Any redirect? No, Your Honor. All right, thank you, ma'am, for your You're free to go. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 65 of 114 PageID# 5549 Koch - Direct 1 832 THE WITNESS: Thank you. 2 (Witness excused.) 3 THE COURT: Your next witness? 4 MR. FITZPATRICK: 5 THE COURT: 6 MR. FITZPATRICK: 7 THE COURT: Your Honor, Scott Koch. All right. Spelled K-o-c-h. We'll take the afternoon break after this 8 witness unless anybody needs a break before then. 9 folks, when you, when you go into the jury room, just be 10 And again, careful not to trip on the screen. 11 SCOTT A. KOCH, GOVERNMENT'S WITNESS, AFFIRMED 12 MR. FITZPATRICK: 13 Thank you, Your Honor. DIRECT EXAMINATION 14 BY MR. FITZPATRICK: 15 Q. 16 spell your full name for the court reporter. 17 A. 18 K-o-c-h. 19 Q. And, sir, where do you currently work? 20 A. I work at the Central Intelligence Agency. 21 Q. How long have you worked for the CIA? 22 A. Twenty-four years. 23 Q. What is your current position? 24 A. I'm currently the chief of the Information Review and 25 Release Group. Good afternoon, sir. Please state your name and please First name is Scott, middle initial A, Koch, spelled Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 66 of 114 PageID# 5550 Koch - Direct 833 1 Q. And how long have you been in that position? 2 A. Eight years. 3 Q. And describe, if you would, please, your educational 4 background. 5 A. Yes, I do. 6 Q. Please tell us about that. 7 A. I have a law degree from the University of South Carolina. 8 Q. And do you also have another advanced degree? 9 A. Yes, I do. Do you have a law degree? I have a Ph.D. in Military History from Duke 10 University. 11 Q. 12 Review and Release Group, can you describe what that group 13 does? 14 A. 15 release activities for the CIA, to include all the public 16 information disclosure programs, the Freedom of Information 17 Act, Privacy Act, Executive Order 13526, and publications 18 review. 19 Q. 20 oversight responsibilities; is that accurate? 21 A. Yes. 22 Q. And is the Publications Review Board within that umbrella? 23 A. Yes, it is. 24 Q. Previously -- I want to direct your attention back to 1998 25 to 2002. In your current position as the chief of the Information Yes. I'm responsible for all the information, review, and So within -- let's just say that you have an umbrella of There are five divisions in our group. Earlier in your career, were you the chair of the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 67 of 114 PageID# 5551 Koch - Direct 834 1 Publications Review Board? 2 A. 3 2002. 4 Q. 5 mission is of the Publications Review Board? 6 A. 7 the rights of authors, their First Amendment rights with the 8 agency's need to protect classified information. 9 author submits a manuscript, our job was to go through and look 10 for classified information and ask the author to take that out. 11 We did not look for information that was embarrassing Yes, I was, from 1998 to approximately September or August Can you describe for Judge Brinkema and the jury what the The Publications Review Board is charged with balancing When an 12 or critical of the agency. We could not take that out. 13 only mission was to take things out for which we could 14 articulate damage to national security. 15 Q. 16 trying to strike? 17 A. 18 that he or she can publish while protecting classified 19 information. 20 Q. 21 apologist for the CIA, correct? 22 A. 23 critical or embarrassing. 24 look for classified information. 25 Q. Our And within the mission, is there a balance that you're Yes. We, we strive to help the author reach a manuscript So it's a negotiation process. And would you say that -- your job is not to be an Oh, no, not at all. We, we don't take out anything We don't check facts. We just only During your time as chair of the Publications Review Board Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 68 of 114 PageID# 5552 Koch - Direct 835 1 between 1998 and 2002, and I'll specifically direct you to 2 2002, did you become familiar with a proposed publication by 3 Jeffrey Sterling? 4 A. Yes. 5 Q. And what -- do you recall the name of the publication that 6 had been submitted by Mr. Sterling? 7 A. 8 Shadow of Africa, or Out of Africa, or something like that. I recall it was a book proposal for something called The 9 MR. FITZPATRICK: Your Honor, at this time, I'm going 10 to move to admit Government Exhibits -- I think for the sake of 11 efficiency, we can do this all together. 12 THE COURT: 13 MR. FITZPATRICK: 14 15 16 17 18 and 87. All right. And then, Your Honor, I'll be admitting Government -THE COURT: Wait, wait, just one second. 86 and 87 were the last two. MR. FITZPATRICK: Yes, Your Honor. And then also, Government Exhibits 99 and 127 are public records. 19 THE COURT: 20 MR. POLLACK: 21 Government Exhibits 78, 81, 84, 86, I assume there's no objection to 78? There's no objection, Your Honor, to any of the exhibits that was read. 22 THE COURT: 23 (Government's Exhibit Nos. 78, 81, 84, 86, 87, 99, 24 25 All right, they're all in. and 127 were received in evidence.) MR. FITZPATRICK: Thank you, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 69 of 114 PageID# 5553 Koch - Direct 1 Q. 2 Exhibit 78? 3 A. 4 836 So, Mr. Koch, if you could please turn to Government Do you have that document in front of you? Yes, I do. MR. FITZPATRICK: And if we could publish that, 5 Mr. Francisco? We'll be publishing all of these. 6 Q. Tell us what this document reflects. 7 A. This is a cover letter that the Publications Review Board 8 received from Mr. Sterling, including his manuscript or a book 9 proposal for our review. 10 Q. And that was on January 28 of 2002? 11 A. That's correct. 12 Q. If you could please turn to Government Exhibit No. 81? 13 you see your name on this? 14 A. Yes, I do. 15 Q. And what is this document? 16 A. This is a document to Mr. Sterling dated 7 February 2002 17 from me acknowledging receipt of his book proposal package 18 entitled Spook. 19 authors so we can acknowledge that we did receive their 20 manuscript. 21 Do We usually -- we always send this out to The second paragraph is my text to him saying that 22 the reviews usually take 30 or fewer days but may take longer 23 depending on the complexity of the manuscript. 24 every author to make sure that they know what the deadline is. 25 Q. We tell this to And with respect to the last sentence in the middle Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 70 of 114 PageID# 5554 Koch - Direct 837 1 paragraph, you write to Mr. Sterling, ". . . you are not to 2 show it to editors, literary agents, publishers, reviewers or 3 anyone else"; is that correct? 4 A. That's correct. 5 Q. Why is that included? 6 A. That's a standard practice to put authors on notice that 7 until the Publications Review Board gives them written approval 8 to proceed with their manuscript, they cannot divulge the 9 information in the manuscript they submitted to us. 10 Q. 11 right? 12 A. Yes. 13 Q. And did you have an executive work with you? 14 A. Yes, I did. 15 Q. Who was that? 16 A. That was Mr. Bruce Wells. 17 of the Publications Review Board. 18 Q. 19 for Mr. Sterling's book. 20 A. 21 take a look at it to determine which equities are involved, in 22 other words, which directorate of the agency might own that 23 information. 24 might go to the Directorate of Operations. 25 Now, at this time, you were the chair of the PRB; is that He was the executive secretary And describe the next steps in terms of the review process What would happen next? When we receive a manuscript from an author, our reviewers In other words, if it's about a covert action, it Once our reviewers determine where those equities Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 71 of 114 PageID# 5555 Koch - Direct 838 1 lie, we would send it to each Publications Review Board member, 2 who are at the time I was chairman, were senior intelligence 3 officers from each directorate. 4 they would review the manuscript for their directorate's 5 equities. 6 Q. Why don't you describe, what are directorates? 7 A. Directorates are the way the agency is organized. 8 a directorate, right now there's a National Clandestine 9 Service, there's a Directorate of Intelligence, there's a There was one from each, and There's 10 Directorate of Science and Technology, there's a director's 11 area, and there's a Directorate of Support. 12 Q. 13 to each directorate who potentially has an equity stake in the 14 information contained in the manuscript; is that correct? 15 A. That's correct. 16 Q. And you used the word "who owned the information." 17 this -- is this information potentially government property? 18 A. Yes. 19 Q. If you could please turn to page 84? So upon the initial review, the manuscript would be sent 20 THE COURT: 21 MR. FITZPATRICK: Was Exhibit 84. I'm sorry, Your Honor, Exhibit 84. 22 Q. And just if you'd turn to the last page, page 4 of that 23 exhibit? 24 A. Yes, I do. 25 Q. The -- describe for the jury what this letter is. Do you see that? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 72 of 114 PageID# 5556 Koch - Direct 839 1 A. This letter would be a response from the Publications 2 Review Board to Mr. Sterling about a completion of our review 3 of his manuscript that he submitted. 4 applied only to the proposal and the sample chapter. 5 It looks like the review We're telling him in the first couple pages of the 6 letter what he must take out of his manuscript for it to meet 7 PRB approval. 8 what words to take out because those words or those clauses are 9 in themselves classified. You'll notice that it doesn't say specifically So we have to say on page 1, first 10 line, take out the first through fifth words. 11 written in an unclassified manner, so that we can send it back 12 to him. 13 That's why it's We conclude the letter by saying that we are only 14 giving him approval for what he submitted so far, which is the 15 proposal and the sample chapter, and again, he is not -- that 16 is not approval for anything else that he might submit. 17 needs to submit whatever else he writes. 18 Q. 19 describe -- for instance, in page 1, Proposal, line 11, you 20 state to Mr. Sterling, "Delete the first five words in the 21 line. 22 press coverage." 23 He And just to go back to the first page, to further The agency has not acknowledged this information despite You don't reference the particular information in the 24 proposal, do you? 25 A. That's correct; we do not. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 73 of 114 PageID# 5557 Koch - Direct 840 1 Q. And is that because a particular equity holder, a 2 particular directorate owns that information? 3 A. 4 would have told us, "We need you to take out that information. 5 That is classified." 6 Q. Yes. And that Publications Review Board representative Thank you, sir. 7 If we could please turn to Exhibit 86, please? Do 8 you have Government Exhibit 86 in front of you? 9 A. Yes, I do. 10 Q. And again, turning to the second page, do you recognize 11 your signature on that document? 12 A. Yes, I do. 13 Q. Can you please tell us what's reflected in Government 14 Exhibit 86? 15 A. 16 Zaid, who was Mr. Sterling's legal counsel. 17 talked by the telephone and had been unable to set up a date 18 for a meeting, so I memorialized what we wanted to do in this 19 letter. 20 This is a letter dated 28 March 2002 from me to Mr. Mark Apparently, we had Usually when authors have attorneys and they receive 21 our first manuscript, our decision and they don't like it, they 22 want to come in with a meeting for us so we can explain to them 23 why we took out what we took out and help them with suggestions 24 as to how they can possibly write around that to get a 25 publishable manuscript. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 74 of 114 PageID# 5558 Koch - Direct 1 841 This is a standard practice that we would do with any 2 author if they have attorneys. Any author doesn't even need an 3 attorney. 4 do that, and we've done it many times. 5 Q. 6 common or uncommon it is for lawyers to get involved in the 7 process? 8 A. 9 when I was chairman of Publications Review Board, maybe 20 If they want a meeting with us, we would, we would Based on your experience in this area, can you state how Not every author has a lawyer, but it happens, I would say 10 percent of the time. 11 Q. 12 anything to you in particular? 13 A. 14 the lawyer instead of dealing directly with the, with the 15 author. 16 Q. 17 recognize that document? 18 A. Yes, I do. 19 Q. And what does this -- and your signature is on there? 20 A. Yes, it is. 21 Q. And what is reflected in this document? 22 A. This is a letter that I sent to Mr. Zaid confirming a 23 meeting for Thursday, 18 April 2002, at 9:00, to discuss the 24 redactions to his client's chapter, and it also contains 25 information for how Mr. Zaid is to get access to the building. Does -- with the introduction of lawyers, does it signify No, no. It's a negotiation process, and we work through Now, I want to turn to Government Exhibit No. 87. Do you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 75 of 114 PageID# 5559 Koch - Cross 1 Q. 2 within the CIA? 3 A. 4 agency. 5 Q. 6 acting capacity? 7 A. 8 Review Board. 9 Q. 842 Now, at a certain point in 2002, did you change positions Yes, I did. I became, I became the chief historian of the And who took over your responsibilities as chair in an Bruce Wells was the acting chairman of the Publications And had Mr. Wells been actively working on and involved in 10 the Jeffrey Sterling manuscript up to this point? 11 A. Yes, from the very beginning. 12 Q. But after you left, did he assume the responsibilities for 13 managing it? 14 A. Yes. 15 16 MR. FITZPATRICK: moment? 17 THE COURT: 18 MR. FITZPATRICK: 19 The Court's indulgence for one Yes, sir. Your Honor, I have no further questions at this time. 20 THE COURT: 21 MR. POLLACK: 22 All right. Mr. Pollack? Thank you, Your Honor. CROSS-EXAMINATION 23 BY MR. POLLACK: 24 Q. 25 last name? Good afternoon, Mr. Koch. That's how you pronounce your Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 76 of 114 PageID# 5560 Koch - Cross 843 1 A. That's correct. 2 Q. My name is Barry Pollack. 3 Mr. Sterling. 4 5 When Mr. Sterling first submitted his manuscript -or, I'm sorry, let me strike that. 6 7 Let's go ahead and put up Exhibit 78, if we can. And if you could enlarge the text? 8 9 I'm an attorney that represents On January 28, 2002, he submits a book proposal and a sample chapter; is that correct? 10 A. Yes. 11 Q. And at that time, were you aware that Mr. Sterling already 12 had pending against the CIA a lawsuit alleging that the CIA had 13 discriminated against him? 14 A. No. 15 Q. Did you come to learn that at some point? 16 A. At some point, I was aware of it because I think it was in 17 the newspaper. 18 Q. 19 of the PRB process? 20 A. I can't recall that. 21 Q. Okay. 22 CIA has for people with the CIA who want to publish material 23 that might relate to their time at the CIA? 24 A. Absolutely. 25 Q. And it's perfectly appropriate and -- for someone who Did you become aware of it while you were still in charge I suspect probably. And the PRB process is a standard protocol that the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 77 of 114 PageID# 5561 Koch - Cross 844 1 wants to write about their time with the CIA to go through that 2 process, correct? 3 A. Yes. 4 Q. They're required to, but there certainly have been 5 instances where people haven't, correct? 6 A. That's correct. 7 Q. Including recently the director of Central Intelligence 8 himself, the former director wrote a book and didn't go through 9 that process, correct? They are required to go through that process. 10 A. I was not chairman of PRB at that time. 11 Q. Are you aware of it? 12 A. I'm aware of what I read in the paper, not officially. 13 Q. But Mr. Sterling went through this process, correct? 14 A. He was going through the process when I was chairman of 15 PRB. 16 Q. 17 uncommon, correct? 18 A. Correct. 19 Q. And you don't -- do you know whether the lawyer that was 20 assisting him in the PRB process was also his lawyer for the 21 discrimination case? 22 A. I don't know that. 23 Q. And in his letter to you when he first makes his 24 submission, he indicates, does he not, that, as I understand 25 it, in accordance with the regulation, you are afforded 30 days And he did so with a lawyer, and you said that that isn't Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 78 of 114 PageID# 5562 Koch - Cross 845 1 for review, correct? 2 A. That's correct. 3 Q. Okay. 4 A. That's correct. 5 Q. And first of all, the title of his proposed book, you said 6 that you thought it was Out of Africa or Shadow of Africa or 7 something to that effect? 8 A. Yes. 9 Q. In fact, does this refresh your recollection that the book And then you respond to him in Exhibit 81, correct? 10 was called Spook, or the book proposal? 11 A. The proposal was called Spook, yes. 12 Q. Okay. 13 A. As far as I know. 14 Q. Okay. 15 letter saying that he believed that there was a requirement 16 that the review be completed within 30 days, that, in fact, it 17 is the norm that it's completed within 30 days or less, 18 correct? 19 A. 20 have up to 30 days to do so, and in complex cases, it can take 21 longer. 22 Q. 23 complex cases, it can take longer, but you do say that reviews 24 usually take 30 or fewer days, do you not? 25 A. "Spook" being another term for spy? And you explained to him that in response to his No, it's not the norm that they're completed in less. Okay. We I understand that you put in the caveat that in Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 79 of 114 PageID# 5563 Koch - Cross 846 1 Q. And you said that the process that you go through is a 2 process of trying to, to balance competing interests, correct? 3 A. First Amendment versus classified information. 4 Q. And sometimes that's a tricky balance, correct? 5 A. It can be. 6 Q. In fact, there are often internal debates within the PRB 7 about whether particular words or particular phrases can be 8 used or not used, correct? 9 A. That's correct, and that's why when I ran the board, the 10 PRB members were senior intelligence executives. 11 Q. 12 fact, a fairly complicated process? 13 A. It can be. 14 Q. And in Exhibit 84, you're now getting back to Mr. Sterling 15 with respect to the proposal he submitted in January, correct? 16 A. Yes. 17 Q. And it's now March, correct? 18 A. Yes. 19 Q. So it took about a month and a half, as opposed to 30 20 days? 21 A. Yes. 22 Q. Okay. 23 you're requiring both for the proposal and for the sample 24 chapter, correct? 25 A. So what sounds like it might be a simple process is, in And you get back to him with the changes that Correct. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 80 of 114 PageID# 5564 Koch - Cross 847 1 Q. And you tell him he doesn't need to resubmit the sample 2 chapter as long as he makes the changes that you're requesting, 3 correct? 4 A. Yes. 5 Q. And you tell him that most of the changes are, changes are 6 minor. 7 A. Yes. 8 Q. Now, one of the -- one thing that was in his proposal or 9 in the sample chapter was that he had particular expertise and That's in the first paragraph. 10 was fluent in Farsi, correct? 11 A. I don't know that. 12 13 MR. FITZPATRICK: Objection, Your Honor. We have a protective order issue in place on this issue. 14 THE COURT: 15 (Sealed Bench Conference E not transcribed in this 16 All right, approach the bench. Mira. volume.) 17 THE COURT: Ladies and gentlemen, I know how jurors 18 hate it when we have these long bench conferences, and since 19 we're close to the break time, let me give you your afternoon 20 break until 5 after four. 21 all right? 22 23 And we shouldn't hold you up for anything. MR. POLLACK: Thank you, Your Honor. (Recess from 3:45 p.m., until 4:03 p.m.) 24 25 We'll come back in session at 4:00, (Defendant present, Jury out.) THE COURT: Actually, counsel, approach the bench. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 81 of 114 PageID# 5565 Koch - Redirect 1 This will have to be in front of the bench. 2 3 848 (Sealed Bench Conference F not transcribed in this volume.) 4 (Jury present.) 5 THE COURT: 6 We were in the cross-examination. 7 MR. POLLACK: 8 All right, folks, you can have a seat. Your Honor, Mr. Koch, I don't have any further questions for you. 9 THE COURT: Thank you. Was there any further redirect? 10 MR. FITZPATRICK: 11 THE COURT: 12 Mr. Pollack? Just very briefly, Your Honor. All right. REDIRECT EXAMINATION 13 BY MR. FITZPATRICK: 14 Q. 15 please? 16 title was Spook, correct? 17 A. That's correct. 18 Q. And then throughout Government Exhibit 84, you're making 19 references to a chapter called "The Shadow of Africa"; is that 20 correct? 21 A. Turning back to Government Exhibit 84, if you could, Just for clarification, the title -- the book proposal That's correct. 22 MR. FITZPATRICK: 23 THE COURT: 24 MR. POLLACK: 25 THE COURT: Nothing further, Your Honor. All right, any redirect -- recross? No, Your Honor. No. Mr. Koch, thank you for your Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 82 of 114 PageID# 5566 Wells - Direct 1 testimony. 849 You're free to leave at this point. 2 (Witness excused.) 3 4 THE COURT: And I assume the next witness is Mr. Wells? 5 MR. FITZPATRICK: 6 THE COURT: 7 All right, Mr. Wells. CHARLES BRUCE WELLS, GOVERNMENT'S WITNESS, AFFIRMED 8 9 That's correct, Your Honor. MR. FITZPATRICK: Thank you, Your Honor. And, Your Honor, again, for the sake of efficiency, through this witness, 10 we'll be moving to admit Government Exhibits 89, 90, 91, 92, 11 93, and 116. 12 THE COURT: 13 MR. POLLACK: 14 Any objection? No, Your Honor. No objection to any of those documents. 15 THE COURT: 16 (Government's Exhibit Nos. 89 through 93 and 116 were 17 All right, they're all in. received in evidence.) 18 MR. FITZPATRICK: 19 Thank you. DIRECT EXAMINATION 20 BY MR. FITZPATRICK: 21 Q. Good afternoon, sir. 22 A. Good afternoon. 23 Q. If you could, please, state your full name and please 24 spell your name for the court reporter. 25 A. Charles Bruce Wells, W-e-l-l-s. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 83 of 114 PageID# 5567 Wells - Direct 850 1 Q. And, sir, what is your current employment? 2 A. I'm an independent contractor with the CIA. 3 Q. And did you at some point retire officially from the CIA? 4 A. Yes, I did. 5 Q. When was that? 6 A. Beginning of 2004-end of 2003. 7 Q. And how long was your career with the CIA? 8 A. Thirty-six years. 9 Q. Did there come a point in time when you worked within the Came in in 1968. 10 Publications Review Board? 11 A. Yes. 12 Q. When was that? 13 A. 1995 through 2003, when I retired. 14 Q. Directing your attention to the early part of 2002, what 15 was your, your job at that point within the Publications Review 16 Board? 17 A. I was the executive secretary. 18 Q. And who did you report to directly? 19 A. To Scott Koch, who was the chairman of the board. 20 Q. Did there come a point in time when -- during that year 21 when Mr. Koch moved on to another position, and did you move 22 up? 23 A. 24 did. 25 Q. Yes. I wasn't sure it was that year, but at one point, he It was perhaps 2002 maybe. Yes. And what title did you assume? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 84 of 114 PageID# 5568 Wells - Direct 851 1 A. I was acting chair of the Publications Review Board at 2 that time. 3 Q. 4 book proposal by Jeffrey Sterling? 5 A. Yes. 6 Q. And describe your responsibilities with respect to the 7 book review process on that book. 8 A. 9 work of the book. During that time period, did you become familiar with a As executive secretary, I basically handled the day-to-day When a proposal came in, we did a cursory 10 review to find out who -- which members of the board should 11 review the book. 12 book to the -- or copies of the manuscript to those, to those 13 members. 14 We made copies. We got the copies of the Then we would, we would try to make sure that they 15 adhered to the deadlines, and then when the responses came in, 16 we would mark up, redact the manuscript and return it to the 17 authors. 18 Q. 19 Prior to -- well, I'll strike that. When, when you assumed responsibility as the acting 20 chair of the Publications Review Board, did it become your 21 responsibility to communicate with the proposed author or his 22 attorneys on issues? 23 A. Yes, that's correct. 24 Q. And prior to that, that was Mr. Koch's responsibility? 25 A. Yes, yes, although I composed the letters. I mean, we did Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 85 of 114 PageID# 5569 Wells - Direct 852 1 sort of the mechanical end of it. 2 Q. 3 Exhibit 89. I understand. I want to turn your attention to Government Mr. Wood's going to bring that to you. 4 We can publish that. Thank you. 5 Do you have Government Exhibit 89 in front of you? 6 A. Yes. 7 Q. And do you recognize that document? 8 A. Yes. 9 Q. And just briefly describe to us what is, what is going on 10 in this document. 11 A. 12 manuscript. 13 and one of the chapters, and he is now resubmitting the other 14 chapters that he wanted reviewed. 15 Q. 16 book, had it been going on for a while at this point? 17 A. Yes. 18 Q. And was that -- having an author submit chapters sort of 19 piecemeal on a rolling basis, was that unusual? 20 A. Yes, but not unprecedented. 21 Q. Okay. 22 on a rolling basis? 23 A. No. 24 Q. Okay. 25 please? This is the covering letter that, that accompanied the We had done an earlier review of a book proposal Had the -- the process with respect to Mr. Sterling's He had, he had done a sample chapter book proposal. But you didn't have any objection to him doing it If you could please turn to Government Exhibit 90, And why don't you turn to the last page, page 3 of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 86 of 114 PageID# 5570 Wells - Direct 1 853 that document. 2 Do you recognize the signature on page 3? 3 A. Yes. 4 Q. And is that your signature? 5 A. That is. 6 Q. Could you please tell Judge Brinkema and the jury, what 7 are you communicating to Mr. Sterling by way of this letter? 8 A. 9 that would -- that's describing the redactions that we are This -- these are the -- this is the covering letter again 10 asking for. There would also have been the actual pages with 11 the material whited out, but this describes what we are asking 12 him to redact or take out of the book. 13 Q. 14 you don't make specific reference to the problematic language 15 in the manuscript; is that correct? 16 eight words in the line? 17 A. Yes. 18 Q. Is that the way it's done? 19 A. That's correct. 20 Q. Now, sticking with that, chapter 5, page 1, line 14, do 21 you see that? 22 A. Yes. 23 Q. You are -- you continue by saying, "You may wish to 24 substitute the phrase 'U.S. diplomat.'" 25 A. And just sticking with the first page of your letter, now, You refer to the first Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 87 of 114 PageID# 5571 Wells - Direct 854 1 Q. Is it part of your job -- is there a sort of a 2 problem-solving aspect to your job? 3 A. 4 language. 5 a suggestion. 6 else, he was perfectly willing to do so, and we would look at 7 that, but we would frequently put in words that were commonly 8 used in previous reviews. 9 Q. Yes, there is. We would often suggest alternative It was not a mandate, but it was, it was offered as If the author wanted to come up with something And are you trying to facilitate the process to make the 10 author successful in his endeavor? 11 A. Yes, we are. 12 MR. POLLACK: 13 THE COURT: Objection. Leading. Sustained. 14 BY MR. FITZPATRICK: 15 Q. 16 correct? 17 another suggestion? 18 A. Yes. 19 Q. And you undertake that process throughout the first two 20 pages of your letter; is that correct? 21 A. Yes. 22 Q. If you could please turn to page 91? These quotations, they continue on page 1; is that For instance, chapter 6, page 3, line 7, you make 23 THE COURT: 24 MR. FITZPATRICK: 25 you're correct. Exhibit 91. Sorry, Your Honor. Exhibit 91, I apologize. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 88 of 114 PageID# 5572 Wells - Direct 855 1 Q. Do you have Exhibit 91 in front of you? 2 A. Yes. 3 Q. What are you communicating in this letter? 4 A. In this letter, in this letter, we are telling him that we 5 have finished. 6 numbers of chapters early because we were running a little bit 7 behind on the, on the total review, so I said we'll give you a 8 partial response and then we'll come back with the remaining 9 chapters that we hadn't had a chance to finish the review on. We had made an effort to get him certain 10 Q. And you -- do you recall -- the initial submission by 11 Mr. Sterling was a book proposal and an initial chapter 1; is 12 that correct? 13 A. 14 chapter. 15 Q. A single chapter? 16 A. A single chapter, correct. Yes. 17 18 Or I'm not sure it was chapter 1, but there was a THE COURT: Mr. Wells, can you just move a little closer to the microphone? 19 THE WITNESS: 20 THE COURT: Okay. Thank you. 21 BY MR. FITZPATRICK: 22 Q. 23 again, just can you identify your signature on page 5? 24 A. Yes. 25 Q. And what is this document? Now, I want you to turn to Government Exhibit 92, and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 89 of 114 PageID# 5573 Wells - Direct 856 1 A. This is the, this is the redacted documents for the 2 remaining two chapters, and it looks like there's a small 3 addition from chapter 5. 4 Q. 5 receipt and respond with comments? 6 A. Correct. 7 Q. And this letter is dated January 3, 2003? 8 A. Yes. 9 Q. Why don't you turn to page -- excuse me, Exhibit 93. And again, you're going through the same process of 10 Do you have Exhibit 93 in front of you? 11 A. Yes. Yes. 12 Q. And is this a Lotus Note? 13 A. Yes. 14 Q. And did you prepare this? 15 A. Yes. 16 Q. And to whom are you sending this Lotus Note? 17 identifying specific names, just to what positions? 18 A. 19 other people that had interest in this review, such as our -- 20 Q. 21 about 3:21 p.m.; is that correct? 22 A. Yes. 23 Q. What are you attempting to communicate in this letter to 24 the other board members? 25 A. Without It would probably have been board members and perhaps some What are you -- and this note is dated January 7, 2003, at I just wanted to let them know about a phone call I'd Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 90 of 114 PageID# 5574 Wells - Direct 857 1 received from Mr. Sterling and give them an idea of what he had 2 said during this conversation. 3 Q. Had you returned a call that day -- 4 A. Yes. 5 Q. -- from a message he had left? 6 A. Yes. 7 Q. So this note is made within several hours after your 8 conversation with Mr. Sterling? 9 A. About three hours after, yes. 10 Q. And I want to direct your attention to the first 11 paragraph. 12 paragraph that is in quotation marks. 13 A. 14 that he had used. 15 Q. 16 and when something is in quotations, those are direct quotes 17 from Mr. Sterling? 18 A. To the best I can remember, yes. 19 Q. With respect to the first paragraph, the 20 phrases "absolutely disgusted" and "absolutely reprehensible" 21 are in quotation marks? 22 A. Yes. 23 Q. Did Mr. Sterling say those things to you? 24 A. Yes. 25 Q. And what was that in response to, do you recall? There is phrases or information in the first Why did you do that? To give a sense of an idea of some of the actual words And you used that in other occasions in this Lotus Notes, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 91 of 114 PageID# 5575 Wells - Direct 858 1 A. That was in response to the redactions that he had 2 received. 3 chapters, that previous letter that we had just sent, the one 4 from -- 5 Q. 6 word "inconsistencies" is in quotes. 7 to? 8 A. 9 be inconsistencies in what the board had asked him to redact. I don't remember; it must have been the last two And with respect to the second paragraph, there is the What is that in reference That would have been in reference to what he considered to 10 I can't remember if it was inconsistencies within the review or 11 inconsistency based on guidelines that he had received, but -- 12 Q. 13 sentence that begins, "He said that as a result." 14 in a quotation, "at us with everything at his disposal." 15 you recall that? 16 A. Yes. 17 Q. And do you recall -- again, is that a direct quotation 18 from Mr. Sterling? 19 A. Yes. 20 Q. Do you recall the tone of voice or the demeanor that was 21 expressed over the phone? 22 A. 23 very specifics at this time. 24 Q. 25 litigation? And then in the final paragraph of that note, there is a No. Then it ends Do He was, he was somewhat upset, but I don't recall any Do you have a memory, Mr. Wells, did this matter end up in Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 92 of 114 PageID# 5576 Wells - Direct 1 A. Yes, it did. 2 3 859 MR. FITZPATRICK: If I could just publish for the jury Government Exhibit No. 99, please? 4 THE COURT: 5 MR. FITZPATRICK: 6 THE COURT: 7 MR. FITZPATRICK: 8 Q. 9 116, please. 99? Yes, please. All right. Thank you. And, Mr. Wells, I want you to turn to Government Exhibit Could you please tell -- I want you to turn to 10 page 5. 11 A. 12 time. 13 Q. So he took over for you? 14 A. He took over for me. 15 Q. And what's reflected here in Government Exhibit No. 116, 16 is this a letter that was another review with suggestions 17 delivered to Mr. Sterling? 18 A. 19 20 Can you tell us who Paul-Noel Chretien is? Paul-Noel was the, was the chairman of the board at the He succeeded me. Yes. MR. POLLACK: I'm going to object to any further questions based on lack of foundation. 21 MR. FITZPATRICK: 22 THE COURT: Well, I can ask -- See if you can lay a foundation. 23 BY MR. FITZPATRICK: 24 Q. 25 preparation of a motion for summary judgment . . .." In the first line there, it says, "In conjunction with the Do you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 93 of 114 PageID# 5577 Wells - Direct 860 1 recall that? 2 A. I'm sorry. 3 Q. In the first line, there's a reference to a term "summary 4 judgment." 5 prepare a declaration in conjunction with that? 6 A. Yes. 7 Q. And were you still working at this time in conjunction 8 with the Publication Review Board on this matter? 9 A. I was, I was transitioning out. 10 Q. Okay. 11 A. But I was still there, yes. 12 Q. You were still there? 13 A. Yes. 14 Q. And were you still working on the Jeffrey Sterling matter? 15 A. Yes. 16 17 18 19 Did you file a document in -- were you asked to MR. FITZPATRICK: those grounds. That's the proper foundation. THE COURT: Well, do you recall having seen this letter or being involved at all in drafting it? 20 THE WITNESS: 21 THE COURT: 22 No, I did not. Were you -- to your knowledge, were you involved in any of the discussion of the issues in this letter? 23 THE WITNESS: 24 THE COURT: 25 Your Honor, I would move it in on Yes. I think that's enough foundation. I'm going to permit it. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 94 of 114 PageID# 5578 Wells - Direct 861 1 MR. FITZPATRICK: 2 MR. POLLACK: Thank you, Your Honor. Your Honor, just to be clear, I believe 3 we've already admitted the document. 4 objection to the admission of the document. 5 the witness's competence to interpret the document. 6 the author of it. 7 THE COURT: I didn't have an The question is He's not He may not be the author, but he's just 8 said that he was involved with some of this analysis that's 9 discussed here. 10 Is there a question you want to ask this witness about the document? 11 MR. FITZPATRICK: 12 THE COURT: 13 MR. FITZPATRICK: 14 All right, let's move along then. Mr. Francisco, if you could please put up Government Exhibit 99 once again? 15 THE COURT: 16 MR. FITZPATRICK: 17 THE COURT: 18 BY MR. FITZPATRICK: 19 Q. 20 21 No, Your Honor. 99? Yes, please. Okay. And, Mr. Wells, can you please turn to that as well? THE COURT: Any objection? I'm not positive you moved that one in. It's in? 22 MR. POLLACK: 23 THE COURT: 24 BY MR. FITZPATRICK: 25 Q. I believe it is in, Your Honor. All right, that's fine. Mr. Wells, the date of this complaint, Jeffrey Sterling v. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 95 of 114 PageID# 5579 Wells - Direct 862 1 Central Intelligence Agency, this involves litigation 2 concerning the Publication Review Board and their review of his 3 manuscript; is that correct? 4 A. Yes. 5 Q. And this was filed on March 4 of 2003? 6 A. Yes. 7 Q. And in the document we just discussed, Government Exhibit 8 116, that was a document that was prepared after that civil 9 complaint was filed; is that correct? 10 A. That's the deposition? 11 Q. Government Exhibit 116, what's the date of that document? 12 A. 16, sorry. 13 Q. And that would be after the civil complaint? 14 A. Yes. 15 Q. Then I want you to turn to Government Exhibit 127, which 16 is already admitted. 17 18 25 August '03. I would just note, Your Honor, that this is a stipulation of dismissal with prejudice filed July 30, 2004. 19 THE COURT: 20 MR. POLLACK: 21 THE COURT: 22 MR. FITZPATRICK: 23 questions for you. I assume there's no objection to that. No, Your Honor. All right, it's in. Mr. Wells, I have no further Please answer Mr. Pollack's questions. 24 THE COURT: 25 MR. POLLACK: All right. Cross-examination? The first time the government's ever Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 96 of 114 PageID# 5580 Wells - Cross 1 863 told a witness to answer my questions. 2 THE COURT: 3 It may be the last, so be careful. CROSS-EXAMINATION 4 BY MR. POLLACK: 5 Q. 6 attorneys that represents Jeffrey Sterling. Mr. Wells, my name is Barry Pollack. 7 8 I'm one of the If we can go ahead and put up Government's Exhibit 89, please? 9 Now, you testified, Mr. Wells, that this is a 10 document where Mr. Sterling provides -- provided to the PRB, to 11 the Publications Review Board, additional chapters for his 12 book, correct, or proposed book? 13 A. Yes. 14 Q. He had previously submitted a book proposal and a sample 15 chapter, correct? 16 A. Right. 17 Q. And he was only required to submit chapters of the book to 18 the extent that they dealt with his career at the agency or 19 with classified information, correct? 20 A. Or intelligence matters, yes. 21 Q. Okay. 22 submitting the remaining chapters of the book that fall in that 23 category, and so therefore, this is the bulk of what it is that 24 he's asking the PRB to review, correct? 25 A. And in this document, he's telling you he's That's correct, yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 97 of 114 PageID# 5581 Wells - Cross 864 1 Q. And that submission is made on October 22, 2002, correct? 2 A. I believe that is correct, yeah. 3 Q. Now, if we can go to Government's Exhibit 90, this was 4 your letter to him dated December 2, 2002, correct? 5 A. Yes. 6 Q. And that's more than 30 days from October 22, correct? 7 A. Yes. 8 Q. In fact, you say that, you say that you apologize that -- 9 maybe you don't apologize. Correct. You note that the response is 10 beyond the normal 30-day deadline, correct? 11 A. That is correct. 12 Q. And even at that, the response is not a complete response 13 because there's still material that you're continuing to 14 review, correct? 15 A. That is correct. 16 Q. Now, did you know at -- well, did you learn at some point 17 that Mr. Sterling had filed a lawsuit against the CIA claiming 18 that he had been discriminated against during his tenure at the 19 CIA? 20 A. Yes, we were aware of that. 21 Q. Were you aware of that from the beginning of this PRB 22 process? 23 A. Very early on, if not at the beginning, yes. 24 Q. And you don't know whether Mr. Sterling's complaint that 25 he was treated unfairly is correct or not correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 98 of 114 PageID# 5582 Wells - Cross 865 1 A. No, we did not. 2 Q. But you were aware that he had made such a complaint? 3 A. Yes, that is correct. 4 MR. POLLACK: And I would like to hand to the witness 5 a document that I've marked as Defendant's Exhibit 7, Mr. Wood. 6 If you can help me out? 7 8 THE COURT: Mr. Fitzpatrick, do you have a copy of that? 9 MR. FITZPATRICK: 10 THE COURT: 11 MR. POLLACK: 12 THE COURT: 13 MR. POLLACK: 14 I don't. All right. Oh, I'm sorry. 7? Yes, Your Honor. This has been marked as Defendant's Exhibit 7. 15 THE COURT: Thank you. 16 BY MR. POLLACK: 17 Q. 18 document is? 19 A. 20 to several -- to members of the board. 21 Q. And who authored it? 22 A. I did. And, Mr. Wells, can you just generally describe what this This would be, this would be another Lotus Note or e-mail And it went to -- 23 MR. POLLACK: Let me just stop you there. 24 I'd like to move to admit Defendant's 7. 25 THE COURT: Any objection? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 99 of 114 PageID# 5583 Wells - Cross 866 1 MR. FITZPATRICK: 2 THE COURT: 3 (Defendant's Exhibit No. 7 was received in evidence.) 4 MR. POLLACK: No? I have no objection. All right, Defense 7 is in. And, Mr. Francisco, if you can put it 5 up on the screen? 6 Q. 7 phone call that you had made to Mr. Sterling? 8 A. 9 Let's see. Now, Mr. Wells, this is reflecting a -- memorializing a I'm not sure if it was one that I made or he made to me. 10 Q. Well, the subject line says "Phone Call to Jeff Sterling"? 11 A. Okay. Then yes, it would be. 12 Q. Okay. And this is dated December 12, 2002, correct? 13 A. Yes. 14 Q. So this is ten days after your letter to him where you 15 hadn't met the 30-day deadline and you were still reviewing 16 additional materials, correct? 17 A. Yes. 18 Q. And Mr. Sterling was advised, you say, ". . . I called 19 Mr. Sterling to advise him the review of his manuscript would 20 be delayed because the person reviewing was attending to a 21 family emergency. 22 as a delaying tactic by the Agency, and said he had no choice 23 but to get his attorney involved." 24 A. Yes. 25 Q. And you put at the top of this message, "This message was Okay. As expected he was not happy, saw the move Correct? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 100 of 114 PageID# 5584 Wells - Cross 867 1 created in anticipation of litigation," correct? 2 A. Yes. 3 Q. And you did that because you believed that it was possible 4 that Mr. Sterling might file a lawsuit over the fact that the 5 PRB had not cleared his manuscript? 6 A. Yeah. 7 Q. And if we can go to, I guess it's sort of the last full 8 paragraph, the way the conversation that you're reflecting here 9 concluded is he asked when the review would be done, and you 10 told him that the reviewer would be back next week, correct? 11 A. Yes, sorry. That's correct. 12 MR. POLLACK: And next I'd like to hand up to the 13 witness Defendant's Exhibit 5. 14 THE COURT: 15 MR. POLLACK: Any objection to this document? I'll go ahead and hand up 6 at the same 16 time just to save Mr. Wood a trip, but right now, we're only 17 going to be discussing Defendant's Exhibit 5. 18 Do you already have it, Mr. Wood? 19 THE COURT SECURITY OFFICER: 20 MR. POLLACK: 21 THE COURT: 22 MR. FITZPATRICK: 23 THE COURT: 24 (Defendant's Exhibit Nos. 5 and 6 were received in 25 Yes. Oh, so he's got it. Okay. Great. Mr. Fitzpatrick, is there any objection? No, Your Honor. All right, 5 and 6 are in then. evidence.) Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 101 of 114 PageID# 5585 Wells - Cross 868 1 BY MR. POLLACK: 2 Q. 3 Note from you, correct? 4 A. Yes. 5 Q. Memorializing another phone conversation with 6 Mr. Sterling? 7 A. Yes. 8 Q. And the date of this one is the 19th? 9 A. Yes. 10 Q. Of December? 11 A. Yes. 12 Q. So in the previous one, you'd sort of concluded the 13 conversation by saying that you would -- that the reviewer 14 would be back next week, right, No. 7? 15 A. No. 7? 16 Q. And here it is a week later, and you're having another 17 conversation with Mr. Sterling, correct? 18 A. Correct. 19 Q. And again, you're marking the memorandum as being prepared 20 in anticipation of litigation, correct? 21 A. Correct. 22 Q. And this one is your phone call to Mr. Sterling where 23 you're getting back to him with an update, correct? 24 A. Yes. 25 Q. And you tell him that the officer who needs to review the Okay. So go ahead and put up 5. And 5 is another Lotus If that's what it says, yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 102 of 114 PageID# 5586 Wells - Cross 869 1 remaining chapter has not returned to the building, correct? 2 A. Yes. 3 Q. But you assure him it will be a top priority when this 4 officer does return, correct? 5 A. Yes. 6 Q. And Mr. Sterling reminded you that the review has now 7 taken two months, correct? 8 A. Yes. 9 Q. And he, he wasn't happy about that; is that fair to say? 10 A. That's fair to say. 11 Q. Yeah. 12 was being delayed because the reviewer was out of the office, 13 and he asked why the review depended on a single individual, 14 correct? 15 A. Yes. 16 Q. And you say, "I stammered around a bit that once questions 17 had been raised, additional review was required," correct? 18 A. Yes. 19 Q. And when you say you stammered around, that's because you 20 didn't have a very satisfactory answer to give Mr. Sterling, 21 correct? 22 A. Probably correct, yes. 23 Q. And now we'll go ahead and go to Exhibit 6. 24 25 And you were telling him at this point the review This is in the second-to-last paragraph? THE COURT: They would appear to be out of chronology, right, in terms of time, or are they both the same Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 103 of 114 PageID# 5587 Wells - Cross 1 870 time? 2 MR. POLLACK: Oh, no, I understand, Your Honor. 3 Actually, I don't think we need to do 6. I think 6 is actually 4 the same communication, and 5 -- 6 is the underlying 5 communication. 6 Q. 7 correct? 8 A. That's correct. 9 Q. But it's the same communication, okay. In 5, you then blind-copied the communication to Mr. Koch, 10 So -- okay. Now let's go to Government's Exhibit 91, if we can, 11 and Government's Exhibit 91 is a letter from you to 12 Mr. Sterling dated December 23, 2002, correct? 13 A. Yes. 14 Q. And you're telling him the PRB still has not finished its 15 review, correct? 16 A. That is correct. 17 Q. And then in 92, Government's Exhibit 92, this is 18 January 3, 2003, correct? 19 A. Yes. 20 Q. And you're now getting back to him with a number of, 21 several pages of redactions that you're requiring, correct? 22 A. 23 review. 24 Q. 25 deadline, correct? Yeah. This would be -- this would have completed the This would have completed the review well past the 30-day Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 104 of 114 PageID# 5588 Wells - Cross 871 1 A. Yes. 2 Q. And there are about four pages' worth of redactions that 3 you're requiring, correct? 4 A. I believe so, yeah. 5 Q. And then that -- and that communication was dated 6 January 3, right? 7 A. Yes. 8 Q. 93, Government's Exhibit 93 is January 7, so it's four 9 days after you give him the belated response with four pages of Yes. 10 redactions, correct? 11 A. Yes. 12 Q. And Government 93 is again your memorialization of a 13 telephone conversation with Mr. Sterling, correct? 14 A. That's correct. 15 Q. And this is the one where toward the bottom of the, in 16 that last paragraph, that last big block paragraph, he tells 17 you after voicing his displeasure that he is going to be coming 18 "at us with everything at his disposal," correct? 19 A. Yes. 20 Q. And the very next line after that is telling you that 21 you're going to be hearing from his lawyer, right? 22 A. That's right. 23 Q. And within a couple of months, he's prepared and filed a 24 lawsuit against the CIA over this PRB review, correct? 25 A. Yes. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 105 of 114 PageID# 5589 Wells - Redirect 872 1 Q. 2 the top of this exhibit, it says, "Three may keep a secret if 3 two of them are dead." 4 Franklin? 5 A. Yes. 6 Q. Was that a favorite quotation of yours? 7 A. I had put it on sort of my standard banner line for most 8 of my e-mail correspondence. 9 Q. 10 Let me just go back for a second to Defense Exhibit 7. Okay. And that's a quotation from Benjamin If three can keep a secret if two of them are dead, what's the ability of over 90 people to keep a secret? 11 MR. FITZPATRICK: 12 THE COURT: 13 At Objection. Argumentative. Overruled -- I'm sorry, sustained. It's late in the day. 14 MR. POLLACK: 15 THE COURT: 16 MR. FITZPATRICK: 17 I don't have any further questions. Anything further, Mr. Fitzpatrick? Thank you, Your Honor. REDIRECT EXAMINATION 18 BY MR. FITZPATRICK: 19 Q. 20 Publication Review Board, right? 21 title? 22 A. 23 Then I became acting until the time I retired. 24 Q. How large was your review staff at this time? 25 A. With Scott, when we had a -- with me, the executive During this time, you were the executive of the Tell us again your true Executive secretary up until, well, Scott was still here. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 106 of 114 PageID# 5590 Wells - Redirect 873 1 secretary acting sort of was combined into one, but we usually 2 had a board chair, executive secretary, director of research, 3 two researchers, and an office administrator. 4 Q. So the total -- 5 A. Six people. 6 Q. I'm sorry? 7 A. About six. 8 Q. About six? 9 A. Yeah. 10 Q. And in addition to book proposal manuscripts, what other 11 documents were within your purview to review? 12 A. 13 research papers, almost anything that was, that was published 14 or about to go into the public domain written by former 15 employees. 16 Q. 17 18 19 Newspaper articles, op-eds, course syllibi occasionally, Describe the pace of the work during this time period. MR. POLLACK: Your Honor, I'm going to object to relevance and also not responsive to the cross. THE COURT: I think this is a little far afield. I 20 mean, this case is not -- this is not the case that was filed 21 in the District of Columbia. 22 in allowing the book to be published. 23 MR. FITZPATRICK: This is not a case about a delay Well, Your Honor, Mr. Pollack went 24 into some great lengths as to the back-and-forth about the 25 nature of the delays. I'm having the witness explain that. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 107 of 114 PageID# 5591 Wells - Redirect 1 874 Mr. Pollack didn't get in any of the reasons for the delay. 2 THE COURT: The delays speak for themselves. They 3 say they were still under review and that it was complex. 4 mean, he's got it right there in your papers. 5 Let's move on. 6 MR. FITZPATRICK: I I'll move on, Your Honor. 7 Q. You testified earlier that the book was submitted to the 8 board, to your organization chapter by chapter in a piecemeal 9 fashion. 10 Is that correct? THE COURT: That's not quite correct. Let's rephrase 11 the question. 12 BY MR. FITZPATRICK: 13 Q. How was the manuscript presented to you for review? 14 A. The initial submission was book proposal one chapter, then 15 the other chapters that dealt with intel issues were submitted. 16 The response was piecemeal. 17 then we did the final two chapters. 18 Q. 19 complete? 20 A. Yes. 21 Q. Can you describe for the judge or the jury, is it more 22 difficult or easier -- is there an objection? 23 We sent four or five chapters, and Do you receive manuscripts for review that are already THE COURT: 24 halfway up. 25 nor standing. Well, I don't know. Mr. Pollack is The record will reflect that he's neither sitting Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 108 of 114 PageID# 5592 Wells - Redirect 875 1 (Laughter.) 2 MR. POLLACK: I'm waiting for the rest of the 3 question. 4 BY MR. FITZPATRICK: 5 Q. 6 fully submitted manuscript with one that is submitted in 7 segments? Can you characterize the difference between reviewing a 8 9 10 MR. POLLACK: relevance. I object, Your Honor, based on Also, the testimony is that it had been fully submitted for well past the 30-day deadline at this point. 11 THE COURT: I'm going to allow this only because 12 we're going to finish this up quickly, but I think it is a fair 13 question as to whether a review of a book proposal is easier if 14 done all at one time or in segments. 15 objection. 16 BY MR. FITZPATRICK: 17 Q. Do you understand the question, Mr. Wells? 18 A. Yes. 19 Q. And what's the answer? 20 A. A piecemeal review is far more difficult just 21 logistically. 22 various offices. 23 that would have to come back, that would have to be 24 coordinated. 25 consistencies issues in there. So I'm overruling the Typically, a manuscript would be sent out to They would review it with their objections You would have to make sure that there were Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 109 of 114 PageID# 5593 Wells - Redirect 1 876 So yes, it is -- the preferred, the preferred 2 submission was a full, a full manuscript. 3 Q. 4 submission and countless others, was Mr. Sterling treated any 5 differently than anybody else? 6 A. Yes, slightly. 7 Q. How so? 8 A. Well, the fact, the fact that we even sent in -- that we 9 responded in segments was different, and this was -- And in your experience in handling Mr. Sterling's 10 Q. Was that an accommodation that you were making? 11 A. -- an accommodation that we were trying to make to him. 12 The idea of a book proposal and a sample chapter, 13 there were some objections raised that it was a piecemeal 14 review, but we countered pretty much with saying that this is a 15 common practice in publishing business to submit a chapter and 16 a book review, so we went ahead with that review just so he 17 could get it out and market the book. 18 Q. 19 to respond to Mr. Sterling with, did that contribute to the 20 delays? 21 A. 22 were, were in line with other books of this, of this type. 23 don't know what was causing the delays. 24 that were, that were out that was mentioned, but it was -- but 25 a two-month review is not unprecedented for complicated books. And did the extent or the number of the edits that you had I don't think so. I think the, the number of redactions I There were some people Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 110 of 114 PageID# 5594 Wells - Redirect 1 Q. 2 bring that up, please? 877 And with respect to Defendant's Exhibit No. 5 -- if we can 3 In the middle full paragraph, there's a sentence that 4 ends -- and this is a reflection of a conversation you had with 5 Mr. Sterling; is that correct? 6 A. Correct. 7 Q. There's a sentence that begins, "This had little impact on 8 him, and he commented that our next excuses would be the 9 holidays and then alien abduction." Is that correct? 10 A. Yes. 11 Q. And that's what Mr. Sterling told you? 12 A. I believe it was, yes. 13 Q. And that alien abduction, that was sarcastic? 14 A. Yes. 15 Q. Did you ever engage with Mr. Sterling in a sarcastic 16 manner? 17 A. I don't, I don't recall that we did. 18 Q. Did you view your performance as professional in this 19 regard? 20 A. 21 again not unprecedented. 22 Q. 23 and the authors who were submitting, it's, it's a collaborative 24 process, correct? 25 A. Yes. I mean -- And sarcasm on behalf of some of our authors is And the, the, the process of the Publication Review Board Collaborative and, we hope, collegial, because, I mean, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 111 of 114 PageID# 5595 Wells - Recross 878 1 they're former employees. 2 honorable thing, and we're trying to do the honorable thing 3 with helping them. 4 Q. 5 correct? 6 A. And it takes -- to collaborate takes two parties to agree, Yes. 7 8 We think they're trying to do the MR. FITZPATRICK: Thank you. No further questions, Your Honor. 9 THE COURT: All right. Mr. Pollack? 10 MR. POLLACK: 11 If you can just go ahead and pull up Exhibit 89? 12 Very briefly, Your Honor. RECROSS-EXAMINATION 13 BY MR. POLLACK: 14 Q. 15 chapter of the book that he had previously submitted, correct? 16 He resubmits that? 17 A. Yes, he does. 18 Q. And then he also submits to you the entirety of the rest 19 of the book that needs review, correct? 20 A. He -- yes, yes. 21 Q. So on October 22, he is giving you all of the materials 22 that need to be reviewed, correct? 23 A. Yes. 24 Q. It's your response that's piecemeal because you get past 25 the 30-day deadline and so you're figuring it's better to give Mr. Wells, on October 22, what Mr. Sterling submits is the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 112 of 114 PageID# 5596 Wells - Recross 879 1 him a partial response than no response at all, correct? 2 A. 3 one in an effort to, to help him out actually in some ways. 4 Q. 5 the submission? 6 A. I wouldn't put it quite that way, but it was a piecemeal Right. But it was the response that was piecemeal, not Correct. 7 MR. POLLACK: 8 THE COURT: 9 THE COURT: Do we have enough time to do the last witness? 13 MR. OLSHAN: Your Honor, with 13 minutes before 5:00 on a Friday, I'd rather not risk it. 15 THE COURT: All right, I'm sure the jury will not be 16 broken hearted. 17 again thank you-all for being here on time. 18 a lot of wear and tear on us. 19 Again, we're ahead of schedule, and I want to It saves, it saves Now, Monday is the Martin Luther King federal 20 holiday, so we're not in session. 21 here. 22 You may (Witness excused.) 11 14 All right, thank you, Mr. Wells. step down. 10 12 Thank you. So make sure you don't come Tuesday morning we will start again promptly at 9:30. Please remember my cautions. Over the weekend, if 23 you go to the movies, stay away from anything that's got the 24 CIA in it, just a few more days until this case is over. 25 I do want to mention one thing to you: We've had Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 113 of 114 PageID# 5597 880 1 during the course of the trial an occasional time when there's 2 a joke or we laugh about something, and I want to make sure you 3 understand this is a very serious thing we're all involved with 4 today in this trial, but even in the most serious plays, those 5 of you who like the theater knows Hamlet is considered one of 6 the great tragedies in the English language, but in the midst 7 of this very dark tragedy, there is a comic routine, and it's 8 done to sort of break up the tension. 9 inference about this case or about how we approach this case So please don't draw any 10 from the fact that occasionally there is a quip or somebody 11 laughs, all right? 12 But I want to thank you. 13 attentive jury. 14 case. 15 Tuesday morning at 9:30, all right? We appreciate the time you're spending on this Please keep following my instructions, and we'll see you 16 We're going to stay in session for a few minutes. 17 (Jury out.) 18 THE COURT: Ms. Gunning, I'm going to ask you to 19 assist us. 20 the courtroom at this time. 21 to take up. 22 23 You've been a very Anyone who does not have a clearance needs to leave I have a classified matter I need (Sealed Conference G not transcribed in this volume.) (Recess from 5:02 p.m., until 9:30 a.m., January 20, 2015.) 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 490 Filed 08/17/15 Page 114 of 114 PageID# 5598 881 1 2 3 CERTIFICATE OF THE REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. 4 5 6 /s/ Anneliese J. Thomson 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595