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.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+0Email to someone

8 Responses to Sterling’s Graymail Attempt

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8

Emptywheel Twitterverse
bmaz @ggreenwald @BradMossEsq @MonaHol Why did no one file a Habeas in Fed Ct? Question left completely unaddressed by the New Yorker.
1mreplyretweetfavorite
emptywheel Hiding Yahoos: ORCON and the FISC Special Advocate http://t.co/Ce4RmQDc0Z
3mreplyretweetfavorite
bmaz @JustADCohen Graves is successor. It will never end.
9mreplyretweetfavorite
bmaz @JustADCohen I worked on a piece of Hart v Hill when I first started as a lawyer. That was nearly 30 yrs ago and case was already 10 yrs old
9mreplyretweetfavorite
bmaz If true RT @JGreenDC Whoa @imillhiser @TPM
14mreplyretweetfavorite
bmaz Wherein @ScottGreenfield takes a sartorial, yet unquestionably positive, look at @DavidLat's book "Supreme Ambitions" http://t.co/dXJiOaG5JS
15mreplyretweetfavorite
emptywheel RT @ggreenwald: From Bagram & Gitmo to UK, War on Terror critic @Moazzam_Begg has spent 3.5 years in detention- convicted of nothing https:…
15mreplyretweetfavorite
emptywheel Congratulations to Roger Goodell, who lasted long enough to start slathering over NFL's treatment of domestic abuse with pink ribbons.
16mreplyretweetfavorite
emptywheel Proposed bill: Declare foreverwar that'll indefinitely place Const & any ability to fund domestic progs on hold http://t.co/ZoL27MW2V0
30mreplyretweetfavorite
bmaz Interesting take by @jacklgoldsmith on Koh's defense of Obama Forever War. All now agree protecting war more impt than prtcting Constitution
41mreplyretweetfavorite
bmaz RT @ddayen: FHA rules allow lenders to buy defaulted loans and flip them, gaining $428 million on the sale in 2013 http://t.co/zPcDSXTbXV
57mreplyretweetfavorite
emptywheel @VindalooTitan If they altered taxation, tho, it would make these trade-offs visible. It'd end the fiction of the free war. @DavidCUnger
58mreplyretweetfavorite
July 2011
S M T W T F S
« Jun   Aug »
 12
3456789
10111213141516
17181920212223
24252627282930
31