Is the Government Confirming They Used MERLIN with Other Countries?

Josh Gerstein notes a curious argument the government makes in its motion to deny bail to alleged leaker Jeffrey Sterling: that leaking is more dangerous than espionage.

The defendant’s unauthorized disclosures, however, may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money. Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.

Now, Gerstein looks at what this likely means for Wikileaks.

The Justice Department’s brief emphasizing the dangers of leaks could be seen as a preview of arguments the government will make against Wikileaks if authorities proceed with a prosecution of its founder, Julian Assange, or others who are part of the group. A prosecution of Wikileaks would open a significant new front in the Obama Administration’s war on leaks, which has so far targeted only leakers for prosecution and not those who receive the leaks.

But I’m interested in what they’re asserting as it has to do with Sterling’s case.

The government repeatedly claims that the big damage from Sterling’s leak is that it put the life of his source–almost certainly the former Russian nuclear scientist who passed doctored nuke plans to Iran–at risk.

In making these illegal disclosures, the defendant put the life of at least one individual in great danger. This individual, identified as Human Asset No. 1 in the Indictment, see Indictment, ¶ 14, played a role in Classified Program No. 1. The defendant’s illegal disclosures revealed certain identifying information about Human Asset No. 1 that placed Human Asset No. 1 in great danger. Id. at ¶ 42. The threat to Human Asset No. 1 was so great that certain United States government officials cited the danger to Human Asset No. 1 as one reason why Author A’s employer should not publish a newspaper article about Classified Program No. 1 in late April 2003. Id. at ¶ 42.

That expressed concern is really rich, as Risen’s book suggests that one of the concerns of the MERLIN case officer–presumably Sterling himself–is that the CIA had botched the process of doctoring the nuke plans so badly, the Russian immediately became aware of the flaw in the plans.

Within minutes of being handed the designs, [the Russian] had identified a flaw. “This isn’t right,” he told the CIA officers gathered around the hotel room. “There is something wrong.” His comments prompted stony looks, but no straight answers from the CIA men in the room. No one in the San Francisco meeting seemed surprised by the Russian’s assertion that the blueprints didn’t look quite right, but no one wanted to enlighten him further on the matter, either.

In fact, the CIA case officer who was the Russian’s personal handler had been stunned by the Russian’s statement. During a break, he took the senior CIA officer aside. “He wasn’t supposed to know that,” the CIA case officer told his superior. “He wasn’t supposed to find a flaw.”

“Don’t worry,” the senior CIA officer calmly replied. “It doesn’t matter.”

The CIA case officer couldn’t believe the senior CIA officer’s answer, but he still managed to keep his fears from the Russian, and he continued to train him for his mission.

It was a fear about the flaw in the blueprints that led the Russian to include a note hinting there was such a flaw.

There is, of course, the damage done to the Russian’s ability to conduct any similar operations. It’s worth noting, though, that at least as presented in Risen’s book, this was the first time in the many years he had been in the CIA’s defector resettlement program when the CIA asked him to conduct such an operation.

One secret CIA report said that the Russian “was a known handling problem due to his demanding and overbearing nature.” Yet the same report stated that he was also a “sensitive agent” who could be used in a “high-priority covert-action operation.”

So despite their disputes, the CIA had arranged for the Russian to become an American citizen and had kept him on the payroll, to the tune of $5,000 a month. It really did seem like easy money, with few strings attached. Life was good. He was happy to be on the CIA gravy train.

Until now. The CIA was placing him on the front lines of a plan that seemed to be completely at odds with the interests of the United States, and it had taken a lot of persuading by his CIA case officer to convince him to go through with what appeared to be a rogue operation.

But what really seems to be the government’s complaint, if you take their filing in good faith, is the notion that “every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society.”

Is that, then, a confirmation of something that James Risen’s sources (plural) only suggested to him?

The Russian scientist’s fears about the operation were well founded. He was the front man for what may have been one of the most reckless operations in the modern history of the CIA, one that may have helped put nuclear weapons in the hands of a charter of what George W. Bush has called the “axis of evil.”

Operation MERLIN has been one of the most closely guarded secrets in the Clinton and Bush administrations. And it may not be over. Some officials have suggested that it might be repeated against other countries. [my emphasis]

After all, what advantage are countries like North Korea or Syria or Libya or Pakistan or Turkey or anyone else going to gain if they learn the US has been dealing doctored nuke plans to Iran? It might make Americans rightly concerned about the stupidity of the operations being conducted in their name, or even of the loyalty of the operatives involved. It might make our allies more skeptical about American claims about the laptop of death (though you’d hope after the Iraq war fiasco they’d be a little more skeptical of our intelligence propaganda).

But the most obvious way our adversaries are going to get an advantage (so long as you assume the government doesn’t now think of its own citizens as adversaries, which might be possible) is if the government did, in deed, use the MERLIN op with other countries.

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

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

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

  1. phred says:

    The hubris of Americans can be breathtaking at times. We really do tend to believe that we are smarter than the average bear and that those hicks overseas are too dumb to figure things out.

    I can’t think of a faster way to get a nuke program up and running than to hand deliver flawed plans, that the recipient merely has to fix, rather than having to derive from scratch.

    The CIA is dangerously incompetent.

  2. crowinghen says:

    Interesting how the DOJ pretends to care about the Russian defector asset–and are looking back to 2002-03 (?)with this prosecution — but didn’t seem to think it was worth looking back to the danger Valerie Plame and her network when her identity was outed by Dick and his minions.

    Hard to see how they could be much more disingenuous…or more obvious that they were really stretching to find an argument.

  3. DeadLast says:

    Everyone in the world has to be a gullible, and if you alert them to a non-sanctiond “truth”, that is a crime.

    This is so catholic church circa 1287 AD.

  4. Frank33 says:

    If I was to take plans for a nuclear weapon to the Iranian Embassy, I bet I would be put into jail immediately.

    But the CIA itself has broken a few laws here.
    1) There are trade sanctions against Iran which the CIA violated by providing nuclear weapons technology.
    2)There are treaties against nuclear proliferation which the CIA violated.
    3)I hope there are laws preventing the release of nuclear weapons plans, but maybe not. But the CIA should be sued for endangering the world with more nuclear weapons.
    4) The official public policy of denying nuclear technology to Iran is obviously not the true policy, which is giving nukes to Iran. So just give Iran nuclear weapons as the neo-cons previously gave nuclear weapons to Pakistan.

    “State of War”, Chapter nine, A Rogue Operation, describes this brilliant neo-con scheme. But this chapter also discusses briefly an operation where the CIA actually revealed to IRan all the CIA spies in Iran (pg 193).

    The CIA officer had made a disastrous mistake. She had sent information to one Iranian agent meant for the entire spy network; the data could be used to identify virtually every spy the CIA had inside Iran…The Iranian who received the download was actually a double agent. The agent quickly turned the data over to Iranian security officials and it enable them to “roll up” the CIA’s agent network throughout Iran.

    This episode is quite vague about how such a incompetent mistake could be made, assuming it was a mistake. But once again the spies are totally incompetent and they suffer no consequences for their disasters. They are free to commit further disasters and then be promoted. Or these are deliberate efforts by neo-con spies to spread nuclear weapons all over the world.

    • readerOfTeaLeaves says:

      Or these are deliberate efforts by neo-con spies to spread nuclear weapons all over the world.

      Or some sort of similarly convoluted mess. I thought about the Office of Special Plans inside DoD, which was a neocon nest right at the highest levels of DoD. It could certainly make sense that Dougie Feith and Cambone and that cabal of neocons would have loved to either set up the CIA, or else put up a similarly ‘cloaked’, OSP-like nest within CIA.

      Obviously, I’m ignorant of the bureaucratic structures, and risk making a complete ass of myself by leaving this comment.

      But this was the same group of trolls who’d sent the Niger Forgeries via CIA early in BushCo’s reign. So it wouldn’t surprise me one bit if they also were trying to run some kind of bogus blueprint operation. And then blame someone else for its failure.

      Anyone know how the dates of this incident about the blueprints ties in with the Ghorbanifar Timeline?

  5. earlofhuntingdon says:

    I wonder if Dick Cheney’s famously supportive role vis a vis the CIA’s anti-nuclear proliferation team helped or hindered these sorts of ops.

    Given how relatively closed is the world of nuclear design, one would think that a target country surreptitiously acquiring nuke plans would seriously wonder about their authenticity and attempt to vet both the process of acquiring them and vet the plans themselves through experimentation.

      • MadDog says:

        Turkey has been deeply involved with a lot of U.S. foreign policy dirt – again, via The Guardian:

        WikiLeaks cables: Turkey let US use airbase for rendition flights

        …Turkey allowed the US to use its airbase at Incirlik in southern Turkey as part of the “extraordinary rendition” programme to take suspected terrorists to Guantánamo Bay, according to a US diplomatic cable.

        Turkey’s involvement in the controversial programme was revealed in a cable dated 8 June 2006, written by the then US ambassador to Turkey, Ross Wilson. The cable described Turkey as a crucial ally in the “global war on terror” and an important logistical base for the US-led war in Iraq.

        “The Turkish military had allowed us to use Incirlik as a refuelling stop for Operation Fundamental Justice detainee movement operations since 2002, but revoked this permission in February of this year. We understand OSD [office of the secretary of defence] and JCS [joint chiefs of staff] have been discussing whether to approach Turkey to seek to reverse this decision,” the cable said…

  6. MadDog says:

    I’d be interested in reading the views of our Legal Eagles regarding the government’s motion for continued pre-trial detention for Sterling.

    IANAL, but it would seem to me that the government is far beyond stretching the “harm to community” rationale to conflate that to include the second government’s argument that Sterling will:

    …jeopardize their careers…

    Bureaucratic toadies will have their careers jeopardized? Then Sterling must be locked up in pre-trial detention just like PFC Manning because we simply can’t have government careers jeopardized! /s

    So Legal Eagles, what say you?

    Odds on the government winning?

    Since Sterling’s hearing is taking place in the government’s pet district of Eastern Virginia, I’d guess the odds are in their favor.

    • emptywheel says:

      NAL, but I think their motion succeeds in any case. He has basically leaked an asset’s identity as well as–arguably–his own. So what’s to stop him from leaking his boss’ identity?

      • MadDog says:

        While I tend to agree that Sterling’s pre-trial detention will likely get the court’s approval, I still am less than sympathetic to the government’s rationale.

        “Jeopardizing careers” seems to be a weak and childish justification for pre-trial detention.

        It may well be that Sterling would consider counter-attacking using his classified knowledge, but it seems to me that the government itself is lighting the match, and claiming that the resulting fire can only be blamed on Sterling.

        The issue of greymail has been a longstanding irritant to government prosecutions of government employees with classified knowledge.

        Some might argue that this is stretching the definition of greymail to the extreme, and perhaps to the breaking point.

        I don’t necessarily disagree, but I would make the point that the government’s push to keep Sterling in pre-trial detention may also be as extreme if established as a precedent.

        The government is pushing this position now with a former government employee classified knowledge.

        Is the next step to use the same tactics with journalists like James Risen, Dana Priest, Charlie Savage, etc.?

        Slipperly slopes and the government seems to relish sliding.

        • MadDog says:

          …Is the next step to use the same tactics with journalists like James Risen, Dana Priest, Charlie Savage, etc.?

          While the government may hold off (for now) on pre-trial detention with MSM journalists, I don’t believe they would do so with Julian Assange should they finally get their hands on him.

          His alleged co-conspirator PFC Manning is getting just that treatment now, so I would bet that Assange would easily fit in the same government box.

          And heaven help bloggers that cross the National Security State. *g*

        • pdaly says:

          That was my concern when I read this quote in Salon.com of Edward McMahon, Jr, the defense lawyer for Jeffrey Sterling.

          An ex-CIA officer pleaded not guilty Friday to illegally leaking classified documents about agency programs in Iran to a New York Times reporter.

          Meanwhile, the lawyer for former officer Jeffrey Sterling criticized the government for prosecuting his client while failing to go after the reporter and publisher who produced the book that purportedly disseminated the leaked secrets. Sterling had worked on the CIA’s Iran Task Force.

          “The government seems to find a way to indict the most minor players while the publishers and media get off the hook. Sources beware,” defense attorney Edward MacMahon said outside the courtroom after the hearing.

          I am not sure McMahon wants the book publisher and Risen, or Priest, Savage, etc. to be prosecuted, but his rhetorical question implies that the law allows for it, which is disturbing.

          BTW: Here is McMahon in a talk taped at Univ. of Virginia in 1/2009. He calls for fair trials and criticizes the military commission trials. He comments at one point on the prosecution’s manner of updating the court about the CIA’s destruction of the interrogation tapes contemporaneously to McMahon trying to defend his client Moussaoui.

          http://millercenter.org/scripps/archive/forum/detail/4231

  7. MadDog says:

    OT from The Guardian:

    UK linked to notorious Bangladesh torture centre

    …A Guardian investigation into counter-terrorism co-operation between the UK and Bangladesh has revealed a detailed picture of the last Labour government’s reliance on overseas intelligence agencies that were known to use torture.

    Meetings and exchanges of information took place between British and Bangladeshi officials in an effort to protect the UK from attacks that might be fomented in Bangladesh, according to sources in both countries.

    The likelihood that a number of suspects would be tortured as a result of the meetings went unmentioned, according to the sources. Subsequently, more than a dozen men of dual British-Bangladeshi nationality were placed under investigation, and at least some suffered horrific abuse from the Bangladeshi authorities…

    [snip]

    …A number of the British suspects were taken to the secret interrogation centre, known as the Task Force for Interrogation cell (TFI). The location of the TFI and the methods employed by those who work there became clear during the Guardian investigation, with both former inmates and intelligence officials speaking out about its operations.

    Faisal Mostafa, from Manchester, was taken to the TFI after Smith’s visit to Dhaka and is alleged to have been forced to stand upright for the first six days of his incarceration, with his wrists shackled to bars above his head. He is then alleged to have then been beaten and subjected to electric shocks while being questioned about Bangladeshi associates. At the point at which he was to be questioned about his associates and activities in the UK, he is said to have been blindfolded and strapped to a chair while a drill was slowly driven into his right shoulder and hip…

    …A second man, Gulam Mustafa, from Birmingham, was being held in Bangladesh during Smith’s visit, and was released before being held a second time last April. He says he was tortured on both occasions while being questioned about associates in the UK, with his interrogators beating him, subjecting him to electric shocks and crushing his knees…

  8. sona says:

    this is perhaps somewhat ot but i raise this because i am genuinely confused re gerstein’s comment about how sterling’s prosecution can lead to possible charges against wikileaks

    sterling and manning are alleged leakers and risen a suspected recipient and wikileaks an acknowledged recipient of leaks

    how does prosecuting leakers pave the way for charging recipients of leaks particularly when such recipients are not US entities? and as far as i know, they have not charged risen

    • MadDog says:

      One way as has been written about is using a prosecution of a “leaker” as leverage to get the “leaker” to implicate the “recipient”.

      As in, Hey “leaker”, you’re going to do serious prison time unless you cut a deal by rolling over on your “recipients”.

      This, in fact, is exactly what many charge is occuring with PFC Manning and his “solitary confinement”. Rollover on Assange and we’ll go easy on you.

      As to the issue of not being US entities, that doesn’t appear to be stopping the US with regard to Julian Assange.

      I’m guessing the motto at the DOJ is “Your reach should always exceed your grasp!”

      • sona says:

        thanks for that and i apologise for the previous mishmash

        prosecution needs to demonstrate that manning was solicited by wikileaks to be the leaker – manning’s unnecessary solitary confinement notwithstanding that would be very difficult given the legal team wikileaks can summon to make mincemeat of any such claim

        also there is an issue of extradition agreements either with the uk or australia that are not concluded with extrajudicial entities aka military commissions which will be responsible for eventual trial of manning

        ianal, however, as a brit and an aussie, i can tell you it will finish julia gillard as a politician and split the labor party here if she enters into an opaque backroom deal re assange

        gerstein is perhaps trying to breathe life into the dying embers of US villification of assange/wikileaks?

        thanks again

        • MadDog says:

          …prosecution needs to demonstrate that manning was solicited by wikileaks to be the leaker…

          I agree that the government is trying hard to do just that, but should they come up empty, I still believe they’ll attempt other avenues in trying to prosecute Assange.

          As both the chair and vice-chair of the Senate Select Committee on Intelligence – Dianne Feinstein (D-Calif.) and Christopher (Kit) Bond (R-Mo.) made clear this past December:

          We respectfully urge the Department of Justice (DOJ) to take action to bring criminal charges against WikiLeaks founder Julian Assange and any and all of his possible accomplices involved in the unauthorized possession and distribution of vast quantities of classified and unclassified material from the U.S. government…

          …Courts have interpreted “information relating to the national defense” to include classified and unclassified material. We believe that Mr. Assange’s conduct is espionage and that his actions fall under the elements of this section of law. Therefore, we urge that he be prosecuted under the Espionage Act.

          If Mr. Assange and his possible accomplices cannot be charged under the Espionage Act (or any other applicable statute), please know that we stand ready and willing to support your efforts to “close those gaps” in the law, as you also mentioned this week. Thank you very much for your attention to this matter.

          The fact that Assange is not a U.S. citizen nor present on any U.S. territory seems not to dissuade these 2 Senators nor it seems the DOJ.

          As I see it, the U.S. government is determined somehow, some way to prosecute Assange. Stretching the bounds of existing laws beyond the breaking point seems not to deter them one iota.

          …as a brit and an aussie…

          In that case, g’day to ya’ mate! :-)

          • sona says:

            g’day t’ya too and to bmaz

            i don’t give a lot of credence what feinstein or anybody else spouts because if as bmaz says, they will have to try assange for whatever in the regular jurisdiction, i’m pretty sure extradition attempts will not fly with retroactive laws which are unconstitutional here in aus and in the uk

            feinstein was trained as a lawyer?

  9. bmaz says:

    You’re doing fine, no worries mate. Although, under the theory the DOJ seems to be pursuing, they would not necessarily have to prove original solicitation by WL so much as an active participation and conspiracy to steal and leak. Also, I think there is little to no chance the US govt would ever attempt to place Assange within the military trial or Gitmo system. If they do him up, it will be within the traditional criminal system.

  10. orionATL says:

    oh for christ’s sake,

    do we have to keep putting up with,

    more importantly,

    WILL the federal judiciary keep putting up with,

    serious, serial, cia incompetence?

    incompetence!!!

    this plot was as loony, as inane, as doomed,

    as the ” cigar to assassinate castro” was.

    for some moron in the cia to imagine that,

    with 70 years of nuclear weaponry behind us ( “us” being the human race),

    with thousands od books, tens of thousands of journal articles, and possibly tens of thousands of well-trained engineers and scientists,

    that the cia could sneak some one specific engineering trojan horse into the iranian nuclear effort

    was stupid beyond belief – unless you are the clandestine service of the u. s. cia – there fantasy reigns, as it has always reigned, through 6 decades of incomperent cia adventurism .

    will no one rid us, our society, of these montebanks, clowns, poseurs, and delusionists?

    the american cia solution:

    trick the iranians, working with the russians ( who you might recall, have known a thing or two about building nuclear weaponry)

    into building a defective profuct, based on doctored plans.

    cost: $100 million smackers.

    israeli solution: sabatoge the seimens computer code.

    which was nore effective?

    a stogie to the loser – cuban wrapping!

  11. orionATL says:

    what about cheney and plame vis-a-vis doj/cia’s war on sterling?

    the prez of the u.s. authorizes the v-prez to leak the name of a cia operative, plame, who was, apparently working on project merlin. plame is revealed as cia noc (non-official cover) agent, the most secretive, protected level of agent.

    within a fairly short time it became known that plame was working on WMD problem, and that her area of interest was iraq or iran.

    now comes the obama doj to file charges against former cia employee sterling, who was fired from cia and then filed civil suit against cia for discrimination. presumably the doj defended cia in that suit.

    the govt had e-mails and phone info from sterling and nytimes reporter risen for six years and sat on them.

    now, years later, sterling is suddenly a threat to national security.

    i would think a defense lawyer would have a field day with this multi-year background of conflict between sterling and cia/doj.

    then there’s the over-arching fact that the project, project merlin, about which sterling talked with reporter risen was a $100,000,000 bungle by the cia. the cia canceled the program, not for anything sterling had done, but because it was a badly designed failure.

    as for the doj “concern” that sterling/risen let other nuclear or proto-nuclear nations learn some of our cia secrets to stop their nuclear programs, that sounds like pure legal claptrap.

    it is inconceivable that nations covertly developing nuclear weapons do not monitor extremely closely the actions of the u.s. cia/dod. they would have learned of merlin from the cia’s own bungled efforts long before they read it in their morning nytimes.

    judge shopping seems the doj’s best option right now.