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.

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8 Responses to Sterling’s Graymail Attempt

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Emptywheel Twitterverse
emptywheel Could imagine benevolent dictator saying: free transport, worse jobs, all-time monitoring. Like Soviet subway, great! Uber you gotta pay!
10mreplyretweetfavorite
emptywheel @gregorylent Yes, right. Did no one READ those books?
13mreplyretweetfavorite
emptywheel I mean, at least with Google you're getting the service for free. But Uber, you gotta pay to let them monitor your every move & kill jobs
13mreplyretweetfavorite
emptywheel So Uber wants to eliminate all drivers, and track its customers locations all the time. Is more efficient taxi service really worth that?
14mreplyretweetfavorite
emptywheel @BaFana3 Will the Storm Troopers be divvying up the aid?
17mreplyretweetfavorite
emptywheel This Mullar Omar thing is bizarre: BREAKING: Mullar Omar died TWO YEARS AGO. & because we made that public all hell is breaking loose now
18mreplyretweetfavorite
emptywheel @matthewstinar Hey, I'd rather Congress be FOIAble. But I'd start with whistleblower protection.
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bmaz @BradMossEsq @benjaminwittes Well Brad, you do work your ass off giving people every reason to say just that.
7hreplyretweetfavorite
bmaz Jeebus, even cranky old John Dowd thinks #Deflategate is a travesty of process against Brady. #FreeTomBrady https://t.co/S0vO8cR5u5
8hreplyretweetfavorite
bmaz @gideonoliver Sweet!
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emptywheel @makarov__ I've actually raised that as a possibility. But you don't think we have as much to lose there, too? @thegrugq
9hreplyretweetfavorite
emptywheel @peter_donnelly Precisely. Thus the problem with trying to retaliate. @thegrugq
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