Is DOJ Trying to Hide Valerie Plame at the Sterling Trial?

While I was away in South Carolina, the government released the redacted copy of Leonie Brinkema’s order on several issues relating to the Jeffrey Sterling case (the government immediately appealed aspects of this ruling).

There are several interesting aspects of the ruling. First, Brinkema refused to let the government admit the talking points Condi Rice used to convince the NYT not to publish the Merlin story back in 2003 without Rice testifying herself. Although the ruling will probably have a negligible affect in this case, I nevertheless find it ironic, given that the government gave up prosecuting two former AIPAC employees when their defense attorney Abbe Lowell threatened to call Rice to testify about her A1 cutout habits.

Also, Brinkema is allowing the government to introduce a redacted copy of Sterling’s 2000 performance evaluation, presumably so they can argue that Sterling leaked the details about Merlin out of anger that his Equal Opportunity complaint went nowhere. I find this troubling. When that suit was litigated, the government declared state secrets over something, presumably the real performance review. Given the possibility the review referred to Merlin, it seems unfair to allow the government to use the performance review against Sterling without releasing the whole thing (if that is, in fact, what the government invoked state secrets over).

But I’m most interested in what Brinkema’s order suggests about the government’s effort to deal with CIA witnesses. The government, it appears, wants to keep the names of 10 former and current CIA employees who will testify secret from both the defense and the jury.

[T]he Court will hold in abeyance pending further briefing the Government’s request not to disclose, even under seal, to the defendant or jury the true names of these witnesses as they testify.

Brinkema’s planned approach–in addition to using screens to hide the witnesses, she plans to delay the time when potential jurors would get a list of potential witnesses–suggests these names might be publicly recognizable.

Specifically, asking potential jurors if they recognize the names of any witnesses will be delayed until a qualified pool of jurors is established and jurors stricken for cause have been excused from the courtroom. Then, as groups of jurors are considered for peremptory challenge, they will be shown an alphabetical list containing the full names of all witnesses, with no other identifying information. Any jurors recognizing a witness’s name will be stricken for cause. Because the witness list will contain the full names of many CIA employees whose identities the Government wants to protect, it will remain classified; however, a redacted list will become part of the public record.

Of course, this trial will take place in Northern Virginia; it’s quite possible that these CIA witnesses are neighbors or friends of potential jurors. And the government has a clear interest in preventing these potential jurors from learning that their neighbors are actually spooks.

But as the video above makes clear, at least one of the former CIA employees who might be called to testify, Valerie Plame, would be recognizable to a far larger group of people–those who even remotely followed the CIA Leak Case (I think Valerie would have been on maternity leave during the actual events described in Risen’s book). And this filing (see PDF 5-6)–an argument laying out Pat Lang’s proposed testimony refuting the government’s claim that the information Sterling allegedly leaked hurt the country–shows Lang read the FBI interview reports of 22 witnesses; the last name of two of those witnesses, one classified, one apparently not, starts with a “W.”

Mind you, I’m not suggesting the government doesn’t already have very good reason to want to hide the CIA affiliation of these 10 proposed witnesses–they do, which is part of the reason their case may be in trouble, since these witnesses will be used, in part, to prove Sterling’s alleged leaks were serious. Sterling has a clear right to confront his accusers, but the government wants to ensure he doesn’t even know their real names (this may be one of the things the government is appealing).

But I wanted to raise the possibility that they want to hide at least one of these identities not because the identity remains classified–Dick Cheney ruined that–but instead out of a desire to avoid confirming that Plame played a role in the Merlin operation.

10 replies
  1. MadDog says:

    Another excellent dot connection EW!

    And while I do agree with you that the CIA likely has good reasons for sheltering identities in general, I also agree with you that the strategy of using anonymous witnesses at trial that the prosecution desires is more than a bit problematic and troubling considering that they want to prevent the defense from knowing these identities.

    And btw, I found Pat Lang’s involvement as an expert witness for the defense to be quite interesting. Any prosecuting attorney who thinks crossing Pat will be a cakewalk is in for a big surprise.

  2. scribe says:

    but instead out of a desire to avoid confirming that Plame played a role in the Merlin operation.

    Which, FWIW, anyone with even a cursory knowledge of the public record concerning her career would have recognized as at least a likely part of her non-proliferation brief.

  3. emptywheel says:

    @MadDog: Yeah, and DOJ wants to sic Charles Duelfer against Lang. It’s rather interesting because 1) many of the CIA witnesses are supposed to be proving the seriousness of the crime–but of course, the “crime” here is that CIA embarrassed itself, 2) DOJ doesn’t appear to have given Duelfer access to the investigative material, whereas Lang has gotten that access. But Duelfer is supposed to refute the idea that Lang knows anything about intelligence.

    So even assuming DOJ will have these CIA witnesses testify–one of the reasons DOJ appealed Brinkema’s decision is she said 2 people couldn’t testify (which might mean “couldn’t testify w/o their identity being revealed to at least Sterling), the proof that this was National Defense Information will go something like this:

    10 CIA people embarrassed by Risen’s report say it was bad that Risen reported it

    Lang saying those 10 people had terrible tradecraft which ultimately alerted Iran to the op, not Risen’s report of it

    Duelfer, having not read the investigative material, saying Lang is wrong so nanny nanny poo poo

  4. emptywheel says:

    @scribe: Right. And one way or another, if she were to testify, it would hurt the government’s case.

    Either she was involved and the operation was really important, in which case her outing was a much bigger deal than anyone has publicly let on. Or she was involved but it was a minor affair, in which case DOJ’s prosecution of Sterling is bullshit retaliation.

  5. scribe says:

    @emptywheel: I have to say, the whole Merlin operation has always seemed like some bullshit schoolboy scheme that never had a chance of succeeding. Indeed, anyone with brains at CIA would likely have put it in the box marked “high risk/low probability of success”.

    OTOH, it could have been a very effective way of ferreting out leakers, both on the “too crazy to not tell someone about to show what idiots these CIA folks are” and “we’re trying every angle to stop these Iranians from getting The Bomb” angles.

    Gotta wonder (DK whether you’ve discussed this in the past) whether and, if so, the extent to which Deadeye’s (and his friends’) pushing for war with Iran resulted in hurry-up fuckups like this op. I suspect we’ll never know for sure, but it’s worth thinking about.

  6. emptywheel says:

    @scribe: Remember Merlin happened in 2000.

    Also, from the filings, it’s clear that Merlin was just one part of a larger op. I assume Duqu now falls into the larger op.

  7. earlofhuntingdon says:

    We seem to be adopting yet another “law” that comes from the world of Thrird World dictators: a bastardization of defamation law that makes it a felony to harm the reputations of the government, its ministers or its agents, regardless of whether the disclosures about them are true. This rule of “law” has put any number of opposition figures in jail. John Mortimer, QC, of Rumpole fame, litigated cases in Singapore and, I believe, Africa on this question, only to see his clients end up in the nick.

    The act of opposition is becoming a status crime, with the greater penalties meted out to those who most know what they’re talking about, and, hence, are most able to embarrass the government by revealing its real conduct, which is rarely like how spin doctors describe it.

  8. MarkH says:

    Why do I get the feeling the “Don’t let Iran get Da Bomb” and the recent “Fast & Furious” plans were invented by the same idiots?

  9. Timbo says:

    It’s amazing how many backflips the DOJ will do to avoid labelling anyone in the previous decade a war criminal.

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