Government Subpoenas James Risen for the Third Time

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The government appears to hope three time’s a charm. The last two times they subpoenaed James Risen in the case of Jeffrey Sterling, Judge Leonie Brinkema quashed the subpoena. But they’re trying again, this time to get him to testify at Sterling’s trial.

It appears likely they planned to do this all along and crafted the charges against Sterling accordingly. For example, they claim they need Risen to testify, in part, to authenticate his book and the locale where alleged leaks took place.

Risen can directly identify Sterling as the individual who illegally transmitted to him national defense information concerning Classified Program No. 1 and Human Asset No. 1. Because he is an eyewitness, his testimony will simplify the trial and clarify matters for the jury. Additionally, as set forth below, Risen can establish venue for certain of the charged counts; can authenticate his book and lay the necessary foundation to admit the defendant’s statements in the book; and can identify the defendant as someone with whom he had a preexisting source relationship that pre-dated the charged disclosures. His testimony therefore will allow for an efficient presentation of the Government’s case.

Locale issues stem from mail fraud charges that appeared ticky tack charges up to this point. But the government is now arguing that that information–as distinct from whether Sterling served as a source for the information at issue–is critical to these ticky tack charges. Which, it seems they hope, would get them beyond any balancing test on whether Risen’s testimony is crucial for the evidence at question. They also point to mentions in the indictment of an on-the-record article Risen did with Sterling, suggesting that at the very least they ought to be able to ask Risen about this at trial since he would not be protecting an anonymous source.

In other words, they crafted the indictment to be able to argue to Brinkema that on some matters, Risen’s testimony is crucial, and on others, it qualifies for no privilege.

Of course, they also have to argue that this subpoena is not harassment. If I were Risen’s lawyer, I’d argue crafting the indictment in such a way as to carve out areas to get Risen into court is itself harassment.

But that’s not all. The government tries to argue for the necessity of Risen’s testimony in one other way, one that is of particular interest. They say that Risen told his publisher that he relied on more than one CIA source for his work on MERLIN.

In addition, Risen’s own representations to his publisher demonstrate the importance of his testimony regarding the defendant’s identity. In his book proposal, Mr. Risen represented that, in writing his book, he spoke with more than one CIA officer involved in Classified Program No. 1. Consistent with these representations, moreover, the chapter of Mr. Risen’s book that includes information about Classified Program No. 1 appears to reflect the private conversations and inner thoughts of more than one individual.11 See, e.g., Exhibit A at p. 203. Risen’s testimony is therefore relevant to identifying Sterling as a source and to identifying the specific items of national defense information in his book for which Sterling was his source. Put simply, Risen’s testimony will directly establish that Sterling disclosed to him the national defense information about which he sought to write in a 2003 newspaper article, and which he ultimately included in his 2006 book. The jury should be permitted to hear that evidence in assessing whether the Government has met its burden of proving the defendant’s guilt beyond a reasonable doubt.

While this might support the necessity of Risen’s testimony on one hand (to identify what he got from Sterling and what he got from other sources), wouldn’t it also admit a selective prosecution defense? That is, if the government itself is arguing that Risen spoke to more than one CIA officer about MERLIN, then why are they only charging Sterling?

The answer may be because of the dispute about the accuracy of Sterling’s testimony. Remember, the government claims that Sterling lied to Risen about some aspect of MERLIN, presumably about whether or not the blueprints we gave to Iran had an obvious flaw that the Russian defector immediately identified. And they’re trying to use that claim–that Sterling lied–to argue that Risen doesn’t have an obligation anymore to protect his source.

Finally, whatever interest Risen has in keeping confidential his source for the national defense information at issue here, it is severely diminished by the fact that the defendant characterized some of that information in a false and misleading manner as a means of inducing Risen to write about it. See Ind. ¶ 18, 19(d). In short, the Indictment charges that the defendant perpetrated a fraud upon Risen. If “[s]preading false information in and of itself carries no First Amendment credentials” in the civil context, see Lando, 441 U.S. at 171, then it should carry no greater weight in a criminal prosecution.

They say that even while conceding that some of the information Sterling allegedly leaked to Risen is true.

The Indictment alleges that some of the information that appears in Risen’s book is national defense information – and thus is implicitly true – but also notes that some of the information contained therein is characterized in a false and misleading manner. See Ind. ¶¶ 18,19(d). The Government is not here either confirming or denying the accuracy of any particular fact reported in the book.

There’s a lot we can conclude from this filing–not least that the government seems to be abandoning the intent of the Attorney General guidelines on subpoenaing journalists (the guidelines are not mentioned once in the filing). But most of all, it seems we can conclude that the government doesn’t care so much that Sterling allegedly leaked this information–because they’re not charging the other CIA officers they appear to know leaked to Risen–but that Sterling was critical of the operation while he leaked the information.

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  1. rugger9 says:

    Interesting how we seem to have these kinds of fixations on individuals to be culled from the herd. Hatfill, Ivins, Plame, Edmonds, Drake, Iglesias, and so forth were all deemed expendable by the MOTU and set up to be sacrificed. In these cases, I wonder whether these are still Bushie burrowers keeping busy since this kind of fixation [i.e. Saddam, vacations, etc.] is a hallmark of Bushie activity.

    It also makes me wonder (again, which I think annoys some of the community here) why the blatant disregard for declared Obama policies is being coddled. It really looks to me like someone [Rove, Cheney?] is holding the goods on Obama for him to keep letting this go on.

  3. Mary says:

    some of the information that appears in Risen’s book is national defense information – and thus is implicitly true –

    Where is Inigo Montoya when you need him?

    Just as implicitly true as all that nat def info on Hussein’s WMDs; the mobile chem weapons labs; the fact that Murat Kurnaz’ friend from Germany was a suicide bomber in the ME, even though the friend is still alive and well and still in Germany; the “three” instances of water-boarding, as per the CIA’s ex-director; the worst of the worst (including the kid who made tomato runs for Taliban cooks) being at GITMO; liket he nat def info Clement shared with the Supreme Court on the record in his official capacity as Dep Sol. Gen – you know, that we don’t torture or do things like torture; yada yada.

    • rugger9 says:

      Or, the real-life outing of a CIA agent working on WMD during a time of war, that was commuted by W to muzzle Libby, without any jail time.

      The ship of state is wayyyyy off course given what passes for acceptable activity these days, but don’t anyone dare question the captain.

  4. leveymg says:

    Reading between the lines, and the timeline, it appears that Sterling thought he was scapegoated for the failure of Merlin, a program he seems to have been an internal critic. Nobody likes a skeptic. It was a lose-lose for him when the operation went sour in February 2000. Sterling was low man on the totem pole and most expendable.

    Perhaps, looking for an honorable out from the CIA — without judging its merits — Sterling filed his discrimination suit in April, something he would not have otherwise done at that time. The higher-ups in the Agency did not appreciate that action by Sterling, and revoked his security clearance – effectively firing him in March 2001. Later in 2002, after the Agency denied his complaint and officially terminated him in January 2002, Sterling first communicated by e-mail with Risen at The NYT.

    The Sterling matter has some parallels with the Bush-Cheney Administration’s outing of CIA/Counter-Proliferation Division (CIA/CPD) where Sterling and Plame had worked. (Did Sterling take over some of Plame’s job duties when the latter went out on maternity leave, dodging the bullet when the operation went bad? – anyone know?) In June 2001, Richard Armitage leaked to The Financial Times of London that the US had learned about AQ Khan’s nuclear proliferation network, which was an overlapping project for the CPD team.

    By revealing what he did, Armitage effectively tipped off the Pakistanis and the rest of Khan’s network, along with their customers. This was followed by Scooter Libby’s outing of Valerie Plame (who had worked in the same unit – CIA/Counter-Proliferation Division), which was not fully cooperative with the Bush-Cheney White House’s efforts to “sex up” evidence of an Iraqi WMD program. In July 2003, the Plame Affair became public, and after the 2004 election, Risen published his book, which exposed the botched Merlin operation.

    Sterling has detailed first-hand knowledge of many of the details of CIA/CPD’s work in Iran, as well as the AQ Khan network that would be embarrassing to the Agency and shed light on the Bush-Cheney’s outing of the unit and of Plame. The invocation of State Secrets and the subpoena of Risen now is an effort to put those genies back in the bottle and damage containment with a chilling effect on any corporate media that would still report these sort of things.

    Operation Merlin Wiki:

    Operation Merlin is an alleged United States covert operation under the Clinton Administration to provide Iran with a flawed design for building a nuclear weapon in order to delay the alleged Iranian nuclear weapons program.

    History

    In his book State of War, author and intelligence correspondent for The New York Times, James Risen claims that the CIA chose a defected Russian nuclear scientist to provide deliberately flawed nuclear warhead blueprints to Iranian officials in February 2000. Operation Merlin backfired when the nervous Russian scientist noticed the flaws and pointed them out to the Iranians, hoping to enhance his credibility and to protect himself against retaliation by the Iranians, while still advancing what he thought was the CIA plan to use him as a double agent inside Iran. Instead, the book alleges, Operation Merlin may have accelerated Iran’s nuclear program by providing useful information, once the flaws were identified, and the plans compared with other sources, such as those presumed to have been provided to the Iranians by A. Q. Khan.
    Indictment of former CIA-officer

    In late 2010, former CIA-officer Jeffrey Alexander Sterling was indicted for revealing to James Risen the transfer of the nuclear blueprints by the CIA to Iran.

    Jeffrey Sterling Wiki:

    CIA employment

    Jeffrey Alexander Sterling joined the CIA on 14 May 1993, and in 1995 became Operations Officer in the Iran Task force of CIA’s Near East and South Asia division. He held a Top Secret security clearance and had access to Sensitive Compartmented Information, including classified cables, CIA informants and operations. After training in Persian in 1997 he was sent first to Bonn, Germany, and two years later to New York City to recruit Iranian nationals as agents for the CIA, as part of a secret intelligence operation related to the weapons capabilities of Iran. In April 2000, Sterling filed a complaint about racial discrimination practices by CIA management with CIA’s Equal Employment Office. The CIA subsequently revoked Sterling’s authorization to receive or possess classified documents concerning the secret operation, and placed him on administrative leave in March 2001. After the failure of two settlement attempts, his contract with the CIA was terminated on 31. January 2002.

    Equal Employment law suit

    Sterling’s law suit accusing CIA officials of racial discrimination was dismissed by the judge invoking the State secrets privilege, as the litigation would have required the disclosure of classified information. The 4th U.S. Circuit Court of Appeals upheld the dismissal, ruling in 2005 that “there is no way for Sterling to prove employment discrimination without exposing at least some classified details of the covert employment that gives context to his claim.”
    Indictment and arrest under the Espionage Act

    Between 2002 and 2004 the U.S. federal government intercepted several interstate emails to and from Sterling, which were “(…) routed through a server located in the Eastern District of Virginia (…)”. The authorities also traced telephone calls between Sterling and – according to a senior government official – the journalist and book author James Risen. In the intercepted communications Sterling allegedly revealed national defense information to an unauthorized person.

    On 22 Dec 2010, U.S. attorney Neil H. MacBride filed an indictment against Jeffrey Alexander Sterling on the Unlawful Retention and Unauthorized Disclosure of National Defense Information, Mail Fraud, Unauthorized Conveyance of Government Property, and Obstruction of Justice. Sterling was arrested on 6 January 2011. Sterling became the fifth individual in the history of the United States who has been charged under the Espionage Act with mishandling national defense information.

    In a hearing at the U.S. District Court on 14 Jan 2011, Sterling’s defense attorney Edward MacMahon entered a not guilty plea. MacMahon reported to the court that he was still waiting for clearance to discuss the case in detail with his client.

    Valerie Plame Wiki:

    Beginning in 1997, Plame’s primary assignment was shifted to the CIA headquarters in Langley, Virginia. The CIA’s Ishmael Jones confirmed her status as a NOC or “deep cover officer” and remarked that she was talented and highly intelligent, but decried the fact that her career largely featured US-based Headquarters service, typical of most CIA officers.

    She married Wilson in 1998 and gave birth to their twins in (January) 2000, and resumed travel overseas in 2001, 2002, and 2003 as part of her cover job. She met with workers in the nuclear industry, cultivated sources, and managed spies. She was involved in ensuring that Iran did not acquire nuclear weapons.(Note: that Plame may have been on maternity leave at the time that Merlin went bad)

    During this time, part of her work concerned the determination of the use of aluminum tubes purchased by Iraq. CIA analysts prior to the Iraq invasion were quoted by the White House as believing that Iraq was trying to acquire nuclear weapons and that these aluminum tubes could be used in a centrifuge for nuclear enrichment. However, David Corn and Michael Isikoff argued that the undercover work being done by Plame and her CIA colleagues in the Directorate of Central Intelligence Nonproliferation Center strongly contradicted such a claim.

    “Plamegate”

    Flow of Valerie Plame Information
    Main articles: CIA leak grand jury investigation, Plame affair, and Plame affair criminal investigation

    On July 14, 2003, Washington Post journalist Robert Novak, from information obtained from Richard Armitage at the US State Department, effectively ended Valerie Plame’s career with the CIA (from which she later resigned in December 2005) by revealing in his column her identity as a CIA operative. Legal documents published in the course of the CIA leak grand jury investigation, United States v. Libby, and Congressional investigations, allegedly establish her classified employment as a covert officer for the CIA at the time that Novak’s column was published in July 2003.

    In his press conference of October 28, 2005, Special Prosecutor Patrick Fitzgerald explained in considerable detail the necessity of “secrecy” about his grand jury investigation that began in the fall of 2003 — “when it was clear that Valerie Wilson’s cover had been blown” — and the background and consequences of the indictment of Lewis Libby as it pertains to Valerie E. Wilson.

    • emptywheel says:

      Don’t forget that Sterling was (apparently no one disagrees with this) the source for a 2001 Risen story that the CIA office in NY was destroyed in 9/11.

      Also there was another CPD employee who seems to have been targeted bc he made it clear there were Iraqi centrifuge parts available on the market, I think hurting their Mahdi Obeidi InfoOp, as well as challenging other WMD claims. He seems to have been working w/ME weapons dealers, including w/Iran.