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After 17 years, Edwin Wilson still sits in a Pennsylvania prison, claiming he had every right to sell 22 tons of C-4 explosives to Libya. The 72-year-old former CIA agent was convicted in 1983 in what was then the biggest illegal arms trading case in U.S. history. After transforming himself into something of an amateur lawyer, Wilson now thinks he has his ticket to freedom. And if a federal judge in Houston decides to overturn his conviction, several current and former Justice Department and CIA officials could be held in contempt of court, including three who went on to become federal judges. Wilson has evidence of what he maintains he knew all along — that a key affidavit submitted late in the trial by the CIA’s third-highest ranking official was false, and that top Justice Department officials knew that fact before the case became final. The trio of judges — 9th U.S. Circuit Court of Appeals Judge Stephen Trott, Northern District Senior Judge D. Lowell Jensen and retired District of Columbia Judge Stanley Sporkin — all have solid reputations. What the impact of a contempt ruling on the three judges would be is unclear, however. It could besmirch otherwise sterling careers or merely end up a gentle punch line at judicial conferences. Texas U.S. District Court Judge Lynn Hughes has yet to rule on Wilson’s motions. But Wilson, with documents obtained through the Freedom of Information Act, makes an argument that the judges are partly to blame for the DOJ’s failure to alert the trial judge that the affidavit was false. If Hughes finds that the affidavit and the alleged lack of disclosure denied Wilson’s due process rights, he could overturn the conviction. If that happens, Hughes may rule on the motion before him seeking to hold 17 current and former government officials in contempt for interfering with the administration of justice. Jensen declined to comment for this story. Trott says he did nothing wrong. And Sporkin says he would have set the record straight at the time but lacked any authority to do so. But DOJ and CIA documents obtained by Wilson show that not only did Justice Department lawyers learn the affidavit was false within hours of the conviction, but dragged their feet when confronted with the problem. “The government’s representatives cannot be allowed to inflict this kind of damage on the Constitution with their conduct,” wrote Wilson’s attorney, Houston solo practitioner David Adler, in court briefs. “Deception and lies may serve a purpose in the world of espionage, but they have no place in the justice system.” THE BRIGGS AFFIDAVIT Signed by then-CIA Executive Director Charles Briggs, the affidavit told the jury that after Wilson left the CIA in 1971, except for one instance, he “was not asked or requested, directly or indirectly, to perform or provide any services, directly or indirectly, for [the] CIA.” But it wasn’t true. Immediately after the conviction, the CIA notified the DOJ that telling the jury Wilson didn’t provide the CIA with any “services, directly or indirectly,” was misleading, at best. Two months later, the CIA sent DOJ a report detailing 80 “nonsocial” contacts Wilson had had with CIA agents after he left the agency. Eventually, the DOJ disclosed a more extensive list of Wilson’s post-employment contacts with the CIA when Wilson appealed his conviction to the 5th U.S. Circuit Court of Appeals. The falsity of the affidavit itself was never directly disclosed to the court. Wilson, among others things: planned to help a CIA agent recruit an Iranian source; informed the CIA of a plot to assassinate President Reagan; told the CIA about a Libyan deal that could lead to the production of nuclear weapons; and helped obtain an anti-tank missile for a sensitive CIA mission. The affidavit was important to prosecutors. Wilson tried to use what was then known as the “CIA defense” — that he had tacit approval from the CIA to conduct illegal deals as a means of maintaining sources valuable to the American intelligence community. Though the judge didn’t allow the defense, Wilson’s attorneys made it enough of an issue that prosecutors sought the last-minute affidavit. But even government lawyers now admit it was false. “With the benefit of retrospection and in light of all the information now known to the department, it appears that the statement was inaccurate,” wrote DOJ lawyers John De Pue and Mark Bonner in court briefs submitted to Judge Hughes. Government briefs in the case also say the DOJ’s Office of Professional Responsibility is investigating the handling of the affidavit. A DOJ spokesperson had no comment. Typically, however, Office of Professional Responsibility investigations are postponed until the resolution of a case. The DOJ is hoping to dismiss the case on several counts. Procedurally, they argue that because Wilson did not raise objections to the truth of the affidavit at trial (he did object to its introduction as testimony), he is not entitled to raise the issue now. They also argue that the government did not knowingly submit perjured testimony and that the falsity of the affidavit is immaterial to any legally cognizable defense. “Neither the allegedly concealed evidence of Wilson’s CIA-related activities nor the absence of the Briggs declaration would have compensated for the fatal evidentiary lacuna,” DOJ lawyers De Pue and Bonner wrote. Adler said Hughes is tough on motions to dismiss, however. If the judge decides to hold an evidentiary hearing, Adler said he may call Trott, Jensen and others to testify. “I would say it’s a possibility,” Adler said. Hughes is the wildcard in the case. Adler’s motion to vacate the conviction and contempt motion has been before Hughes for eight months, without a hint of when he’ll rule. The judge is notoriously tough on government lawyers. In one 1991 wiretap case, Hughes called the government’s tactics “sleazy” — and the government prevailed in the ruling. HANDWRITTEN NOTES But if Adler, himself a former CIA employee who was assigned Wilson’s case by the court, hopes to leverage the false affidavit and the silence that followed into a reversal of his client’s conviction, he’ll have to show Hughes that the affidavit prejudiced the jury. He thinks he has. Adler has produced a handwritten note the Wilson jury foreman wrote to the trial judge, asking for a copy of the affidavit. After the judge read Briggs’ statement to the jury, a guilty verdict on all counts was returned within an hour. During intense media coverage after the verdict, one juror told United Press International that Briggs’ affidavit convinced the lone holdout to convict. When contacted by The Recorder, the juror retracted the statement. Adler said he did not take jury declarations to support his motion because he did not want to put former jurors in the position of having to impeach their verdict. Jensen was then the assistant attorney general of the criminal division, and apparently the most senior Justice Department official apprised of the falsity of the affidavit. Documents obtained by Wilson show a series of meetings within the DOJ — that began before Wilson was even sentenced — once government lawyers learned the truth of the affidavit was in question. Jensen participated in the meetings in a supervisory role. The flurry of memos that followed were usually written by Jensen’s and Trott’s subordinates. Jensen left the DOJ in 1983. His replacement, Trott, also knew about the affidavit. Sporkin was then the CIA’s general counsel. Adler accuses Trott of the “sly” plot to get around disclosure requirements. “I believe the documents show that Trott made the decision to basically cover their ass” with a more extensive list of Wilson’s activities to the appellate court, Adler said. But Trott said he came on the scene late in the debate and that then-Deputy Assistant Attorney General Mark Richard was more involved. Trott also has no regrets about his role in the controversy and seemed unconcerned about Adler’s motion to hold him in contempt. “Typical lawyer’s tactic,” Trott said. The record Wilson has been able to stitch together is incomplete, however, often relying on handwritten (and sometimes heavily redacted) notes included in the government documents. The level of involvement of each player is open to speculation. The records do seem to show, Adler agreed, that Sporkin and Trott lobbied hardest for direct disclosure. Richard sent one memo to Jensen, reading: “As for my own views, I think we must make a disclosure — either to the judge or the defense attorney.” Jensen also chimed in during one DOJ debate on the issue that disclosure was an underlying obligation. But it was never done. Sporkin pushed hard for disclosure. But because he was with the CIA, he could do little more than try to persuade senior DOJ officials to override the objections of the Wilson trial attorneys. Sporkin recently retired from the federal bench in Washington, D.C., and is a partner there with New York-based Weil, Gotshal & Manges. “When it went in, it was an honest affidavit,” Sporkin said. Once the errors became apparent, he pushed for DOJ lawyers to tell the defense. “I would have done it immediately. I don’t want it to sit around with me,” Sporkin said. Records show Sporkin went so far as to draft a letter for the DOJ to forward to the court or defense counsel concerning the affidavit. But the DOJ rejected the letter. Richard, still with the DOJ, took a post in Belgium last year and could not be reached for comment. Sporkin stressed there was no plot to deny Wilson his due process rights. “It’s all good faith here. These are excellent people,” Sporkin said. “You have to look at it in its context.”

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