Sterling’s Graymail Attempt

As Josh Gerstein reported, back in June, Jeffrey Sterling asked the government for details about which parts of James Risen’s account of Merlin are true and which are false. His lawyers argue that Sterling cannot be guilty of disseminating national defense information if what he disseminated–as the government claims–was actually not true.

Now, at first glimpse, this seems to be a graymail attempt: an attempt to demand information from the government it will ultimately refuse to turn over.

In addition to details of the alleged operation, the defense is entitled to know if, as a result of the publication of State of War, the identity of Human Asset No. 1 was learned by any foreign power at all. It is entitled to know if because of the publication of State of War, the Iranians shelved plans to use the blue prints that they allegedly learned, due to the publication of State of War, were allegedly flawed. The defense is entitled to know if this “Rogue Operation,” as described by Mr. Risen, did help the Iranian nuclear program in any way.

Some of this information, after all, would be the information Risen’s sources would have been trying to get out in the first place; this is precisely the kind of information the government is trying to suppress by prosecuting this case. And the emphasis on whether Iran (or another country) learned this information from Risen’s book–or from the operation itself–would make for an interesting question (though I suspect the government would retreat to a claim they’ve made before: that part of the damage comes in letting other countries know about this op).

But I’m also interested in Sterling’s focus on expert witnesses: as of June 22, when this was filed, the government had not yet revealed to the defense what expert they would call to verify that this information was actually national defense information. I suspect part of what the defense is trying to do is force that issue–and in particular, learn whether that expert will be someone who was actually involved in the operation (and therefore could refute Sterling’s version of what happened) or someone else, who would rely on second-hand information.

At a minimum, it must allow the defense to challenge the accuracy of that testimony by confronting the witness called by the government with the truth of what actually occurred.

I hope to come back to this issue in the coming days.

just as interesting as this attempt to get more information on what the government claims happened with the Merlin program is the timing. At one level, it seems very late in the process, almost a second swipe at a Bill of Particulars (the government responded to the first one by giving Sterling the chapter of Risen’s book).

But remember that this filing also came before most of the filings on whether or not Risen will have to testify. I noted that in addition to everything else the government has said to support its subpoena of Risen, they also said he cannot protect a source who passed false information. Of course, they haven’t proven that, they’ve simply gotten a grand jury to buy off on that.

It seems the stakes on whether information Sterling allegedly provided Risen was true or not have gone up. But that seems to be precisely the kind of information the government will want to keep out of court.

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.

8 replies
  1. Jim White says:

    they also said he cannot protect a source who passed false information

    Hmmm. Seems to me the government is opening up a lot their own folks to be identified as leakers if those who pass false information can’t have their anonymity protected.

  2. emptywheel says:

    I actually think that’s part of Sterling’s point. While I doubt they’ll bring the other two or three people who could know first hand about this op to the stand, not doing so will make it harder for the govt to prove that Sterling spread false information.

  3. bmaz says:

    Well, in relation to the expert disclosure issue, this is just mendacity by the govt. because no less than Nino Scalia has insured in Melendez-Diaz in 2009 and then, just a couple of weeks ago, confirming and strengthening further by joining Ginsburg in Bullcoming, that there is an absolute right to confront experts.

  4. emptywheel says:

    There’s still something funky here.

    So they want to get Risen to testify to DQ other possibilities for sources.

    We have reason to believe there ARE other sources (Risen said as much in his book proposal). But Sterling isn’t calling them bc …? I wonder if that’s considered classified too?

    In any case, this call for details on what is false may be an effort to smoke out another of the possible sources. That is, if they can’t get a source who knows precisely what happened between the Russian and the Iranians, they can’t prove whether it’s true or false. But one of only two ways they’d know that is if they either knew it firsthand, or wiretapped the Iranians.

    And in any case, why hasn’t the govt produced their expert? That’s the stage where Drake started to fall apart, I might add.

  5. MadDog says:

    In addition to this “graymail” aspect and the request to confront the Prosecution’s expert witnesses, I found in Steve Aftergood’s recent piece about the Defense request to subpoena SSCI staffers this other “graymail” tidbit in Footnote 1 of the subpoena (28 page PDF):

    …The temporal link between Mr. Sterling’s alleged conversation with the Senate staff members and evidence of when Mr. Risen possessed highly classified information about “Classified Program No. 1” strongly suggest the potential evidentiary value of the phone records of the Senate staffers. But the temporal link does not stand alone. Discovery produced to date reveals that at least one of the staffers in question served as a source for Mr. Risen with respect to matters that came before the United States Senate Select Committee on Intelligence…

    This sounds like the Defense is going to push back on the Risen front about just who else had been one of his sources.

    So my question for the resident Legal Eagles is whether or not they see this subpoena attempt by the Defense as a “good for the goose” tactic should the Prosecution prevail in getting Risen on the stand?

  6. P J Evans says:

    Of course, they haven’t proven that, they’ve simply gotten a grand jury to buy off on that.

    It’s surprising how many people will go along with something because a DA or USA says it. (The other version of this is ‘they were arrested, so they must be guilty’.)

  7. Alba Etie says:

    Is the Obama adminstration still carrying forward the Bush adminstration’s open hostility to the Iranians ?

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