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By Vernon Loeb
Washington Post Staff Writer
Tuesday, February 1, 2000; Page A13

A newly declassified legal memorandum shows that CIA attorneys had serious reservations about the accuracy of a key agency affidavit used to convict former CIA operative Edwin P. Wilson in 1983 on arms smuggling charges and they repeatedly asked a prosecutor not to use the document.

But the prosecutor, Theodore Greenberg, used the affidavit anyway, believing it was "essential to win the case," according to the CIA memo.

The Justice Department conceded in a Jan. 12 motion that the affidavit was inaccurate but argued that Wilson is not entitled to a new trial in U.S. District Court in Houston, where he is seeking to have his conviction overturned on grounds of government misconduct.

The newly declassified CIA memo, which the government attached to its motion, reveals for the first time that CIA attorneys, including then-CIA general counsel Stanley Sporkin, objected to the use of the affidavit--and went to considerable lengths after the trial to put their concerns in writing.

The affidavit in question quoted Charles A. Briggs, then-CIA executive director, as saying that Wilson "was not asked or requested, directly or indirectly, to perform any services, directly or indirectly, for CIA" following his retirement in 1971. The statement undercut Wilson's defense that his Libyan connections provided cover for CIA operations in which he was involved. He has been in jail ever since for conspiring to sell 20 tons of high explosives to Libya.

The newly declassified CIA memo states that as the Briggs affidavit was being drafted, a CIA attorney cited "two instances when the Agency may have tasked Wilson to perform a service" following his retirement. The memo also states that a CIA attorney reported that "there were records of many instances of contact with Wilson . . . "

Based upon these assertions, the memo states, Sporkin told prosecutor Greenberg that he was against using the Briggs affidavit and believed, at a minimum, that any denial of "indirect" requests for services needed to be removed, if the affidavit were used.

Sporkin went on to become a U.S. district judge in Washington, retiring last month. Greenberg served as deputy independent counsel in the probe of former Agriculture secretary Mike Espy and now works as special counsel at the Justice Department for international money laundering.

"Clearly, [CIA attorneys] wanted to record their non-culpability in what happened--it indicates to me that CIA knew something was wrong with" the Briggs affidavit, said David Adler, Wilson's court-appointed attorney.

NON-SECRETS: Robert D. Steele, a former CIA operations officer who has become Washington's leading proponent of so-called "open source intelligence," says three of the Pentagon's joint commands have appointed action officers to manage the collection of openly available, non-secret intelligence.

"There is growing interest among the theater commanders-in-chief in operationally oriented open-source intelligence," said Steele, chief executive of Open Source Solutions Inc. "The continuing difficulties faced by the CINCs in obtaining timely intelligence, including commercial imagery, from the Beltway bureaucracies have led them to begin creating their own direct-access capabilities for open-source intelligence."

Steele said that when he helped create an intelligence center for the Marine Corps in the early 1990s, the U.S. intelligence community was unable to provide him with information about water depths at the world's ports--information, he said, that was readily available from open sources.

SENSITIVE DEFINITION: In its zeal to crack down on Chinese espionage last year at the Department of Energy's nuclear weapons laboratories, Congress passed legislation creating fines of up to $100,000 for anyone mishandling classified or "sensitive information."

There's only one problem: There's no such thing as "sensitive information" under the Atomic Energy Act. So says Mary Anne Sullivan, DOE's general counsel, who issued a memo to department heads and lab directors last month stating that the new fines won't be imposed until the term "sensitive information" is defined.

"So, in order to justify the new penalty," said the Federation of American Scientists' Steven Aftergood, "a new crime will have to be created."

Vernon Loeb's e-mail address is loebv@washpost.com

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