Leak Investigations

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Loretta Lynch Is A Dubious Nominee For Attorney General

CryingJusticeLoretta Lynch is an excellent nominee for Attorney General, and her prior actions in whitewashing the blatant and rampant criminality of HSBC should not be held against her, because she didn’t know that at the time she last whitewashed that criminal enterprise, right?

No. Nothing could be further from the truth.

This is a cop out by Lynch’s advocates. Lynch either knew, or damn well should have known. She signed off on the HSBC Deferred Prosecution Agreement (DPA), if she was less than fully informed, that is on her. That is what signing legal documents stands for….responsibility. Banks like HSBC, Credit Suisse, ING etc were, and still are, a cesspool of criminal activity and avoidance schemes. Willful blindness to the same old bankster crimes by Lynch doesn’t cut it (great piece by David Dayen by the way).

But, all the above ignores the Swiss Alps sized mountains of evidence that we know Lynch was aware of and blithely swept under the rug by her HSBC DPA. So, we are basically left to decide whether Lynch is a bankster loving toady that is her own woman and cravenly whitewashed this all on her own, or whether she is a clueless stooge taking orders to whitewash it by DOJ Main. Both views are terminally unattractive and emblematic of the oblivious, turn the other cheek to protect the monied class, rot that infects the Department of Justice on the crimes of the century to date.

And that is only scratching the real surface of my objections to Lynch. There are many other areas where Lynch has proven herself to be a dedicated, dyed in the wool “law and order adherent” and, as Marcy Wheeler artfully coined, “executive maximalist”. Lynch’s ridiculous contortion, and expansion, of extraterritorial jurisdiction to suit the convenient whims of the Obama Administration’s unparalleled assault on the Rule of Law in the war on terror is incredibly troubling. Though, to be fair, EDNY is the landing point of JFK International and a frequent jurisdiction by designation. Some of these same questions could have been asked of Preet Bharara (see, e.g. U.S. v. Warsame) Loretta Lynch has every bit the same, if not indeed more, skin in the game as Bharara, whether by choice or chance.

Lynch has never uttered a word in dissent from this ridiculous expansion of extraterritorial jurisdiction. Lynch’s record in this regard is crystal clear from cases like US v. Ahmed, Yousef, et. al. where even Lynch and her office acknowledged that their targets could not have “posed a specific threat to the United States” much less have committed specific acts against the US.

This unconscionable expansion is clearly all good by Lynch, and the ends justify the means because there might be “scary terrists” out there. That is just dandy by American “executive maximalists”, but it is toxic to the Rule of Law, both domestically and internationally (See, supra). If the US, and its putative Attorney General, are to set precedents in jurisdictional reach on common alleged terroristic support, then they ought live by them on seminal concerns like torture and war crimes under international legal norms. Loretta Lynch has demonstrated a proclivity for the convenience of the former and a toady like disdain for the latter.

And the same willingness to go along to get along with contortion of the Rule of Law in that regard seems beyond certain to extend to her treatment of surveillance issues and warrant applications, state secrets, over-classification, attack on the press and, critically, separation of powers issues. Those types of concerns, along with how the Civil Rights Division is utilized to rein in out of control militarized cops and voting rights issues, how the OLC stands up to Executive overreach, whether OPR is allowed to continue to shield disgraceful and unethical AUSAs, and whether she has the balls to stand up to the infamously insulated inner Obama circle in the White House. Do you really think Loretta Lynch would have backed up Carolyn Krass and OLC in telling Obama no on the Libyan War Powers Resolution issue?

For my part, I don’t think there is a chance in hell Lynch would have stood up to Obama on a war powers, nor any other critical issue, and that is a huge problem. Krass and Holder may have lost the Libyan WPR battle, but at least they had the guts to stand up and say no, and leave a record of the same for posterity.

That is what really counts, not the tripe being discussed in the press, and the typically preening clown show “hearing” in front of SJC. That is where the rubber meets the road for an AG nominee, not that she simply put away some mobsters and did not disgrace herself – well, beyond the above, anyway (which she absolutely did) – during her time as US Attorney in EDNY. If you are a participant in, or interested observer of, the criminal justice system as I am, we should aspire to something better than Eric Holder. Holder may not have been everything hoped for from an Obama AG when the Administration took office in January of 2009, but he was a breath of fresh air coming off the AG line of the Bush/Cheney regime. Loretta Lynch is not better, and is not forward progress from Holder, indeed she is several steps down in the wrong direction. That is not the way to go.

The fact that Loretta Lynch is celebrated as a great nominee by not just Democrats in general, but the so called progressives in specific, is embarrassing. She is absolutely horrible. If Bush had put her up for nomination, people of the progressive ilk, far and wide, would be screaming bloody murder. Well, she is the same person, and she is a terrible nominee. And that does not bode well for the Rule of Law over the remainder of the Obama Administration.

And this post has not even touched on more mundane, day to day, criminal law and procedure issues on which Lynch is terrible. And horrible regression from Eric Holder. Say for instance pot. Decriminalization, indeed legalization, of marijuana is one of the backbone elements of reducing both the jail and prison incarceration rate, especially in relation to minorities. Loretta Lynch is unconscionably against that (See, e.g., p. 49 (of pdf) et. seq.). Lynch appears no more enlightened on other sentencing and prison reform, indeed, she seems to be of a standard hard core prosecutorial wind up law and order lock em up mentality. Lynch’s positions on relentless Brady violations by the DOJ were equally milquetoast, if not pathetic (See, e.g. p. 203 (of pdf) et. seq.). This discussion could go on and on, but Loretta Lynch will never come out to be a better nominee for Attorney General.

Observers ought stop and think about the legal quality, or lack thereof, of the nominee they are blindly endorsing. If you want more enlightened criminal justice policy, to really combat the prison state and war on drugs, and to rein in the out of control security state and war on terror apparatus, Loretta Lynch is a patently terrible choice; we can, and should, do better.

What Was the CIA Really Doing with Merlin by 2003?

On June 26, 2003, CIA posted nuclear blueprints written in English on its website, claiming they were Iraqi.

On June 26, 2003, CIA posted nuclear blueprints written in English on its website, claiming they were Iraqi.

Bloomberg is reporting that the exhibits released in the Jeffrey Sterling case may lead the UN to reassess some of the evidence they’ve been handed about Iran’s alleged nuclear weapons program.

International Atomic Energy Agency inspectors in Vienna will probably review intelligence they received about Iran as a result of the revelations, said the two diplomats who are familiar with the IAEA’s Iran file and asked not to be named because the details are confidential. The CIA passed doctored blueprints for nuclear-weapon components to Iran in February 2000, trial documents have shown.

“This story suggests a possibility that hostile intelligence agencies could decide to plant a ‘smoking gun’ in Iran for the IAEA to find,” said Peter Jenkins, the U.K.’s former envoy to the Vienna-based agency. “That looks like a big problem.”

Importantly, this story comes from two IAEA officials who are familiar with the evidence against Iran, and therefore would know if aspects of the Merlin caper resemble things they’ve been handed by the CIA, almost certainly including the Laptop of Death laundered through MEK to the CIA in 2004.

You’ll recall that immediately upon hearing some of the sketchy details of the Merlin caper I thought of the Laptop of Death and a dubious tale, told by Iraqi nuclear scientist Mahdi Obeidi, involving the blueprints posted above. And I’ve only got more questions about the operation given what we learned since that day.

Here are some of those questions.

  • Why did CIA immediately turn to dealing Iraq nuclear blueprints after such a clusterfuck on Merlin’s first operation — and why wasn’t Sterling involved?
  • Why did both Bob S and Merlin tell the FBI in 2006 that Sterling was just a marginal player in the operation?
  • Did the program get more sensitive over time?

  • Why is the government claiming this part of James Risen’s State of War is as sensitive than his exposure of a massive illegal wiretap program?

  • Did the kind of deception involved change?

  • What was CIA intending with its Iran approach in 2003, and what really happened with it?

  • What explains the weird reception for Jeffrey Sterling’s complaint at the Senate Intelligence Committee?

  • Why was Bill Duhnke the top suspect?

Why did CIA immediately turn to dealing Iraq nuclear blueprints after such a clusterfuck on Merlin’s first operation — and why wasn’t Sterling involved?

As I have laid out, less than a month after Bob S deemed Merlin unable “to follow even the simplest and most explicit direction” (Exhibit 44), he and one other case officer who was apparently not Jeffrey Sterling (though Sterling was still nominally Merlin’s handler) approached Merlin about repeating the operation with another country (Exhibit 45). David Swanson has compellingly shown that that country was almost certainly Iraq. That operation, however, would be “rather more adventurous” than the Iranian op that Merlin had already proven so inadequate to.

I think it possible they bypassed Sterling because his Equal Opportunity complaints had already so soured his relationship with the CIA they had it in for him already. But I do find it interesting that the transition to Stephen Y happened right as they moved onto this “more adventurous” operation (and Stephen Y handled Merlin through this 2003 leak).

Why did both Bob S and Merlin tell the FBI in 2006 that Sterling was just a marginal player in the operation?

That Bob S was bypassing Sterling in April 2000, over a month before Merlin got a new case officer, also raises questions about why he and Merlin, in what seems remarkably similar testimony to the FBI in 2006, started saying that Sterling was not a central player in the operation. Bob S was doing 70% of the thinking on the operation, he reportedly told the FBI in an February 28, 2006 interview, Sterling just 30%. Sterling served only as a “middleman” editing his letters, Merlin told the FBI in an interview within a month after Bob S’. “The details of this operation were a wild forest to Sterling,” Merlin told the FBI in the same interview (though when asked on cross, he said he meant Sterling didn’t understand the technical details).

Why were Bob S and Merlin both so intent in the months after Risen’s book first appeared on insisting that Sterling’s understanding of the operation was incomplete?

Did the program get more sensitive over time?

Everything introduced at the trial treats the Merlin operation as a clandestine information collection operation. Yet a heavily redacted filing submitted in support of having Retired Colonel Pat Lang testify and other details from the trial suggest the operation got more sensitive as it went along. Like the contemporaneous cables, the filing suggests the operation was clandestine. “The [redacted] operation was conducted as a [redacted] clandestine intelligence operation.” But it also makes it clear that the government was trying to argue that this clandestine operation was covert. Note, for example, the discussion of CIA “electing” to notify Congress, obtain approval from the CIA Director, and … something redacted. That suggests the government went through some or all of the motions of the same kind of notice required under a Finding, without it being a formally covert operation. Risen may have been trying to get at this question, too, when he asked Bill Harlow’s counterpart somewhere (this wouldn’t have been at NSC, but it might have been at Sandia Lab), “he knew that President Clinton had approved the plan…but wanted to know if it had been reapproved by President Bush” (Exhibit 106; note, this appears to have been a seeded question, and not one that Sterling would have reason to pitch).

But two things suggest the program got, formally, more sensitive, perhaps even escalating to a covert operation that the US would want to deny. First, there are the two “facts” mentioned in the Lang filing that had not been shared with the defense, even though Lang was purportedly read into all the evidence pertaining to the Sterling defense. Then there’s an odd exchange that happened with Condi Rice. Eric Olshan asked “did everyone at the NSC know about this specific classified information?” (remember, within weeks, Bob S would tell the FBI more than 90 people were briefed into this compartment). Defense attorney Barry Pollack objected that the question was beyond the protective order. But Olshan insisted it wasn’t, and Judge Brinkema judged that “the government is very sensitive to the protective order and I doubt they would go beyond it.” The suggestion was that very few people at NSC were read into the precise details of the program when Condi talked NYT out of publishing in 2003.

All of this leads me to believe that the program had gotten much more sensitive between the time Sterling was booted off the program in 2000 and the time Risen was reporting the story in 2003.

If so, why?

Why is the government claiming this part of James Risen’s State of War is as sensitive than his exposure of a massive illegal wiretap program?

The program would have had to have gotten more sensitive over time, if any of the implications about the relative sensitivity of the chapters of Risen’s book — including the series of witnesses claiming Chapter 9 was the only one they read (though jurisdictional issues explain some of this, given that Risen’s NSA chapter came under MD’s purview) are to be believed.

After all, elsewhere in Risen’s book, he exposed a massive illegal wiretapping program that directly contravened FISA. He exposed a program that — we now know –directly implicated the Attorney General and Vice President in criminal wiretapping.

Yet the CIA and DOJ want us to believe that this program — described in contemporaneous CIA cables as an effort to give Iran a blueprint to find out if they wanted it — was more sensitive than that massive illegal program? (Admittedly this may all stem from the CIA thinking it is the center of the universe.)

Did the kind of deception involved change?

Those questions all make me wonder whether the kind of deception — and the audience — changed, if the project got more sensitive.

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Yes, Eric Holder Does Do the Intelligence Community’s Bidding in Leak Prosecutions

 

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The second-to-last witness in the government’s case against Jeffrey Sterling, FBI Special Agent Ashley Hunt, introduced a number of things she had collected over the course of her 7.5 year investigation into James Risen’s chapter on Operation Merlin. That included a few things — most notably two lines from Risen’s credit card records from 2004 — that in no conceivable way incriminated Sterling.

On November 17, 2004, Risen charged €158.00 at the Hotel Inter-Continental in Vienna, Austria on his credit card (the provider of which DOJ included in its exhibit). On November 21, 2004, Risen put another €215.30 in Inter-Continental charges on his credit card.

What Agent Hunt had proven by highlighting these two details was that James Risen traveled to Vienna as background for a book chapter set in Vienna, and even went to the hotel where Merlin had stayed. None of that did a thing to prove that Sterling leaked Merlin’s travel information — or anything else — to Risen. But the government decided to gratuitously enter into evidence that they had seized years of Risen’s credit card records, and in doing so obtained details of where Risen had traveled (and also, on what days his daughter sent something via FedEx). It wasn’t enough that we knew that already from court filings. DOJ still saw the need to introduce gratuitous notice that they had all of Risen’s credit card statements into the court record.

“We own you,” seemed to be the message to Risen from this flaunting of his credit card records.

But don’t worry, Eric Holder generously decided not to call Risen to testify against Sterling after having hounded him — in this and the warrantless wiretap investigation — for 6 years already, both Jack Goldsmith and Ben Wittes insist.

Both men seem to vastly underestimate how DOJ’s actions in the last decade impact journalism. And both men seem to misunderstand what just happened in the Jeffrey Sterling trial, where DOJ succeeded in exposing a man to 40 years in prison, based largely on metadata, without even having the key pieces of evidence at issue in the case (almost certainly because of CIA’s doing, not Sterling’s).

Uncharacteristically, Wittes’ post is less annoying that Goldsmith’s. Sure, as he did with Laura Poitras, Wittes appointed himself the arbiter of what the NYT should and shouldn’t tolerate from journalists it pays. I will remember that Wittes believes an employee’s intemperate rants on Twitter should get close scrutiny by their employers the next time Wittes makes factually flawed defenses of his torturer buddies on Twitter or complains when Chris Soghoian tweets about Keith Alexander’s operational security sloppiness when he rides on Amtrak.

But Goldsmith writes two paragraphs about leak prosecutions that — while they may bolster Goldsmith’s questionable claims about how journalism functions to rein in the Executive — entirely miss the point. I’ll take them in detail here:

Third, Holder could have called Risen to testify in the Sterling case – the law was clearly on his side, and DOJ attorneys wanted him to do it.  But Holder directed his lawyers to let Risen off the hook.  It is simply wrong to say (as Risen did) that Holder was doing the “bidding of the intelligence community” or sending “a message to dictators around the world that it is okay to crack down on the press and jail journalists.”  Quite the contrary.

The notion that the trial Holder’s DOJ just staged in Eastern District of Virginia was not about “doing the bidding of the intelligence community” makes me tear up I’m laughing so hard. A very key part of the trial was putting Bob S on the stand so he could make claims about Operation Merlin — which turned out not to be backed up by the documentary evidence or his asset’s memory — so as to be able to claim, “We have demonstrated we did this very carefully.” This was a clusterfuck of an operation, but nevertheless DOJ gave Bob S a day and a half to try to claim it wasn’t. DOJ offered CIA this favor while playing their classification games (this was, after all, EDVA, an improper venue for almost all of the charges, but a very good place to get favorable treatment for security theater) so as to avoid explaining — except when it became handy for Condi to blurt something out – why this operation went from being a clandestine information collection operation to something far more sensitive, which is probably the real reason someone other than Sterling leaked the information as the government was trumping up war against Iraq, the next country that got the Merlin treatment.

It’s EDVA, Goldsmith!!! The same place Holder went to have John Durham pretend to investigate CIA’s obstruction of justice until the statute of limitations expired! The same place Holder went to keep investigating and investigating until DOJ could deliver a head, any head, to punish Gitmo defense attorneys’ crazy notion that they might have good reason to want to learn how and who anally raped their clients in the name of rehydration such that they’re still bleeding, 12 years later.

EDVA has become, under Holder, where DOJ goes to obtain arbitrary judgments that ensure CIA and other agencies will never be held accountable for crimes, but some low-level leaker will be delivered up anytime CIA’s crimes or incompetence get exposed.

Fourth, Risen’s complaints about Holder rest in part on the fact that Holder has presided over many more leak prosecutions than any prior Attorney General.  I suspect that any Attorney General would have ramped up the leak prosecutions in light of the unprecedented cascade of deep secrets from the government in the last decade.

Here Goldsmith makes the same nonsensical claim that Steven Aftergood made for The Intercept’s profile of Stephen Kim. The investigation into James Risen’s stories has been going on for twelve years. The investigation into Risen’s reporting on Operation Merlin started over four years before Chelsea Manning even joined the Army, much less started the torrent of leaks Goldsmith claims justifies all these investigations.

And the ratio of leak prosecutions to leaks remains tiny.

This line comes right out of Holder’s defense of his leak prosecutions the other day. And it’s true. But it’s a big part of the problem. Thus far, after all, James Cartwright has not been indicted for allegedly leaking a far more sensitive counter-proliferation program targeting Iran than Sterling purportedly leaked. No one is even considering prosecuting Leon Panetta for leaking details of the Osama bin Laden raid (or classified details in his memoir). I doubt David Petraeus will be indicted either for letting his mistress have access to all his most intimate secrets.

The people who get prosecuted — Jeffrey Sterling, John Kiriakou, Donald Sachtleben, Stephen Kim — they’re not the problem behind this system of leaking and in several cases it’s very clear they’re not even the key leakers: instead, they’re the human detritus the government can dispose of so others will see just how arbitrary the secrecy system really is, by design.

But in any event, it must be true that these prosecutions have had a chilling effect on leakers (i.e. sources) and in that sense made journalists’ jobs harder.  Of course chilling criminal leaks is the whole point of the prosecutions.  They do not “wreck” the First Amendment if they are consistent with the First Amendment, which they are, especially since the prosecutions have not had any noticeable macro effect on the steady flow of secrets out of the government.

I suspect Risen would say this is not the case. I suspect a number of the other journalists targeted by DOJ would say the same. That is, the point is not about stopping leaks (though I think the Insider Threat system will make it easier to pick and choose which human detritus will be the next sacrificed to feed this arbitrary system of control), but often as not burning certain journalists or others who don’t play the game.

We own you, investigative journalist, and know what you did in Vienna back in 2004.

Note also that Risen and other journalists tend not to talk about the countervailing norms that have moved dramatically in journalists’ favor in the last decade.  (I have written about this extensively, here and here and here and here.)  Not only has the government significantly raised the bar for going after journalists’ sources, but it has also made clear what was not clear a decade ago: it will not prosecute journalists for publishing classified information in clear violation of 18 USC 798.

I think here Goldsmith misses the novel theory the government used to convict Sterling, the one Holder has deemed the model to go after others.

Under this theory, journalists will be treated as empty vehicles, and the “cause to leak” language in the Espionage Act will be blown up, so that even completely unclassified conversations may be deemed the cause of an investigative journalist with sources throughout the CIA publishing a story. And the jurisdiction, too, will be blown up, so that so long as a single hairdresser buys a book in EDVA — or maybe MD, who cares, really?!?! — then DOJ can stage their witch hunt in EDVA with all its trappings of security theater.

There are some interesting theories behind the successful prosecution of Sterling for a bunch of metadata. And Goldsmith might at least familiarize himself with where Holder’s DOJ is taking the Espionage Act, because it deserves more scrutiny before the Sterling prosecution is deemed to have done no damage to the journalistic process.

Given this change in norms and the structural factors pushing secrets out (size of bureaucracy, digitalization of secrets, and the like), it is very hard to conclude that the advantage on secrecy versus transparency has shifted to the government under Holder.

Again, the underlying problem is the asymmetry involved. The government keeps hiding more and more stuff — the top officials behind its trust-building CVE program, even! — behind a veil of secrecy. That amid increasingly absurd claims of secrecy — and increasingly persistent evidence the secrecy often serves to hide law-breaking or incompetence, as it did with the Merlin caper — more secrets get out should be no great celebration. It’s the structure of it all — the paranoia, the arbitrariness, and the incompetence behind it all — that really sours any claim to democratic governance. Goldsmith may take solace we’re getting more secrets out, but until we reverse the slide into arbitrariness it heralds, I’m not so sanguine.

During the hearing just after the defense closed in the Sterling trial, there was a fascinating discussion, largely about how DOJ planned to blow up the “cause” language in the Espionage Act to further criminalize just talking to journalists, to criminalize publishing a book and deigning to distribute it in EDVA. The conversation kept coming back to how DOJ had gone from treating Risen as a criminal weeks earlier to treating him as an innocent naif who channeled Sterling’s spying to the unwitting citizens of EDVA. Judge Leonie Brinkema at one point said, “If Risen were not protected by the newsman’s privilege, I suspect he would have been named as a co-conspirator.” “There is no newsman’s privilege,” defense attorney Edward MacMahon pointed out, laughing at the absurdity of claiming there was after the 3 year battle over just that topic. But the exchange hung there, pregnantly, because ultimately branding Risen a criminal — or, barring that, branding having even unclassified conversations with Risen as criminal — was a big part of the point of this trial.

What this prosecution did — what, I believe, it was designed to do — was two-fold. First, burn Risen, burn Risen over 12 long years of investigation during which the counterpart investigation even reportedly seized his phone records. But also, to herald a new interpretation of the Espionage Act that will criminalize even having phone calls with a journalist who has reported on completely unclassified stories involving you in the past.

Update: Year on Risen’s credit card records corrected per Rich.

Nick Rasmussen’s Leak Interviews

This is a detail I’ve meant to post on for some time, but the discussion of ODNI’s latest on leaks has finally prompted me to point to this detail.

As part of the standard questionnaire for Intelligence Committee nominees, Rasmussen was asked if he had been interviewed in the last 10 years in a leak investigation (question 42). He responded that he had been interviewed in two investigations:

  • In 2013, for a FBI investigation concerning compromise/leak of classified information related to a disrupted terrorism plot in 2010
  • In 2014, in connection with an FBI counterintelligence investigation.

The latter one is likely to be the 2014 investigation into who leaked a terrorist watch list document to the Intercept. Rasmussen would clearly be among the (as he describes it “large number of people who had access by virtue of position to the information that was reportedly compromised.”

It’s the other investigation I’m interested in. The best known “disrupted” terrorist plot in 2010 was the AQAP toner cartridge plot. And while it could be a different thwarted plot (like Faisal Shahzad’s attack, though not much got leaked about it except from Pakistan), no one has ever reported an investigation into that, even though aspects of that leak largely resembled the UndieBomb 2.0 leak that DOJ subpoenaed the AP over.

But I’m just as struck by Rasmussen’s silence about the UndieBomb 2.0 leak investigation. Rasmussen remained at the same counterterrorism position in the White House  until June 2012, through the UndieBomb 2.0 leak. Unless those investigations merged (which might explain why they were investigating a 2010 leak in 2013), it would seem to suggest that Rasmussen was not read into the UndieBomb 2.0 infiltration, in spite of its significant similarities to the Toner Cartridge infiltration.

By way of comparison, here’s how John Brennan answered the same question (he was going to be interviewed on the UndieBomb 2.0 leak during his confirmation process).

  • MD USA: Possible unauthorized disclosures of information to reporters about cyberattacks against Iran.
  • DC USA: Possible unauthorized disclosures of information to reporters about a foiled bomb plot tied to Al Qaeda in the Arabian Peninsula (scheduled for February 1, 2013)

The comparison raises the same questions: There’s no way Brennan wasn’t read into whatever 2010 thwarted attack got compromised, because he would have been read into everything (he was a key point person on both the Faisal Shahzad attack, and did a big dog-and-pony show around the Toner Cartridge plot).

Were Rasmussen and Brennan just discussing the same investigation, into how details of double agents in AQAP kept getting exposed (in large part, by our Saudi and AQAP allies). In any case, was Rasmussen not interviewed in the latter part, in which case it would suggest the compartment for the latter was much more closely held?

DOJ Doesn’t Want You To Think CIA Doctored Evidence in the Sterling Trial

On October 4, 2011 (just before Jeffrey Sterling’s trial was originally due to start) the government submitted a motion that, in part, sought to prevent Sterling from presenting “any evidence or any argument that the CIA has manipulated documents.” The motion presented the crazypants idea that the CIA might alter or destroy documents as part of a conspiracy theory that the CIA wanted to blame Sterling for leaks others had made.

There is absolutely no evidence that the CIA was out to get the defendant, or that the CIA orchestrated some grand conspiracy to blame the defendant for the leaks to Risen. Any arguments or comments that the CIA engages in misconduct or has manipulated documents or evidence in order to blame the defendant for the disclosure of national defense information appearing in Chapter 9 lacks any merit and will needlessly send the Court, the parties, and the jury down an endless Alice-in-Wonderland rabbit hole.

Sterling’s lawyers were nonplussed by this demand. “Documents will be admitted if they are authenticated and otherwise admissible.”

Now, if DOJ were writing about most governmental agencies, you might interpret this request as no more than prosecutorial caution, an effort to exclude any hint of the other things the same motion tried to exclude — things like selective prosecution.

Except the CIA is not most governmental agencies.

Indeed, it is an agency with a long and storied history of serially destroying evidence. The Eastern District of VA US Attorney’s Office knows this, too, because they have so much experience reviewing cases where CIA has destroyed evidence and then deciding they can’t charge anyone for doing so.

And while I don’t expect Judge Leonie Brinkema of CIA’s own judicial district to therefore deny the CIA the presumption of regularity, I confess DOJ’s concern that Sterling might suggest CIA had doctored or destroyed evidence makes me pretty interested in what evidence they might have worried he would claim CIA doctored or destroyed, because with the CIA, I’ve learned, it’s usually a safer bet to assume they have doctored or destroyed evidence.

Especially given the two enormous evidentiary holes in the government’s case:

  • The letter to the Iranians Merlin included with his newspaper-wrapped nuclear blueprints
  • A report of Merlin’s activities in Vienna

As I lay out below, CIA’s story about the letter to the Iranians is sketchy enough, though the government’s ultimate story about it is at least plausible. But their story about Merlin’s non-existent trip report is sketchier still. I think the evidence suggests the latter, at least, once did exist. But when it became inconvenient — perhaps because it provided proof that Bob S lied in the cables he wrote boasting of Mission Accomplished — it disappeared.

But not before a version of it got saved — or handed over to — James Risen.

If I’m right, one of the underlying tensions in this whole affair is that a document appeared, verbatim, in Risen’s book that proved the CIA (and Bob S personally) was lying about the success of the mission and also lying about how justifiable it would be to have concerns about the operation.

The CIA and DOJ went to great lengths in this trial to claim that the operation was really very careful. But they never even tried to explain why the biggest evidence that it was anything but has disappeared.

Merlin’s letter to the Iranians

I’ve noted before that the FBI admits it never had a copy of the letter the government convicted Sterling of leaking to James Risen. “You don’t have a copy of the letter” that appears in Risen’s book, Edward MacMahon asked Special Agent Ashley Hunt. “Not in that exact form,” she responded.

Nevertheless, Count 2, Count 3, and Count 5 all pertain to a letter that appears in Risen’s book, the letter FBI never found. The letter appears at ¶¶ 58 to 63 of the exhibit version of the chapter in question.

To be sure, FBI did obtain versions of this letter, as cables introduced at trial reflect. The first iteration appears in Exhibit 30 (a cable describing a November 4, 1999 meeting), and discussions of the revisions process appears in Exhibit 33 (a cable describing a December 14, 1999 meeting). Exhibit 35 — dated January 12, 2000 and describing a January 10 meeting between Sterling and Merlin — provides the closest version to what appears in Risen’s book, in what is called (in Exhibit 36) the fifth iteration of the letter. The only difference (besides the signature line, presumably, according to the CIA’s currently official story) is the January 12, 2000 cable, based on a meeting that took place 7 weeks before Merlin left for Vienna, said this:

So I decided to offer this absolutely real and valuable basic information for [Iranian subject 2], about this possible event.

Whereas in Risen’s book that passage appears this way:

So I decided to offer this absolutely real and valuable basic information for free now and you can evaluate that. Also I sent e-mail to inform [the Iranian professor] about this possible event.

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The Merlin Operation: Bob S’ 70% Thinking

When he cross-examined the Merlin Operation manager Bob S at Jeffrey Sterling’s trial, defense attorney Barry Pollock asked whether Bob S  thought he was doing 70% of the thinking on the operation. When Bob S denied that, Pollock reminded Bob S of his February 28, 2006 FBI testimony, where he had said he was doing 70% of the thinking to Sterling’s 30%. “This was shortly after publication of book that revealed the whole operation,” Bob S explained his earlier comment. “I was being ungenerous.”

Similarly, when he cross-examined Merlin himself, defense attorney Edward MacMahon asked whether he had told the FBI in March 2006 that Sterling (whom elsewhere Merlin called “lazy” and “irresponsible” while denying earlier statements he had made about Sterling’s race) was just a middleman between Merlin and Bob S who helped prepare the letters Merlin would send out to Iran.

MacMahon: You, you told the FBI that Sterling merely acted as a middleman — and this is in 2006 — as a middleman between you and Bob to prepare letters to be included in the package of technical documents, right?

Merlin: Some kind of, yes?

MacMahon: So the person that was making the final say as to what went in any letter you sent as far as you knew was Bob, right?

Merlin: I, I don’t know what is hierarchical.

I raise these comments — both apparently made only after the publication of Risen’s book — because of some oddities in the CIA cables documenting the operation.

Bob S’ 70%

To some degree, the cables that cover the period when Sterling handled Merlin do make it clear the degree to which Bob S was running this operation, and Sterling was just holding Merlin’s hand as he tried to reach out to Iranians.

Over the period in question (the first meeting when Sterling met alone with Merlin was January 12, 1999; he handed over Merlin to Stephen Y on May 24, 2000 (though it appears Bob S had already excluded Sterling from at least one meeting, as noted below), most of the cables written by Sterling deal with the tedium of Merlin’s pay and include — always verbatim — Merlin’s correspondence with the Iranians. Sterling’s cables often ask for input from Langley on Merlin’s drafts; he expresses some concern about the lag during spring 1999 when CIA was getting export control approval for the program.

Then, in the May 13, 1999 cable (Exhibit 24), as Merlin seems to be getting more interest from Iranian Institution 4 (in spite of his having sent his resume and business proposition letter separately), Sterling notes that Bob S will need to inform Merlin where the program heads from here. “[M] should expect a visit from Mr. S who will provide an update on the definite direction of the project. [M] understands that there are aspects of the project that require certain approvals beyond the purview of C/O.”

The next cable (Exhibit 25) describes the May 25, 1999 meeting at which Bob S, with Sterling in attendance, told Merlin that the target of this operation would be Iranian Subject 1. This plan actually dated back to December 18, 1998 (Exhibit 16). In that cable, Bob S referenced a November 20, 1998 cable (not included as an exhibit nor apparently turned over to FBI as evidence) that apparently described IS1′s “new public position” for which he would be “arriving in Vienna in Mid-December to assume his new duties” (one of Bob S’ later cables would identify IS1 as the Mission Manager in Vienna). But it wasn’t until May of the following year when Bob S (and not Sterling) instructed Merlin that he should start finding ways to reach out to IS1. Note, one paragraph of that cable — following on a discussion of IS1 — is redacted.

At the next meeting — on June 17, 1999 (Exhibit 27) — Merlin told Sterling that he was having problems locating IS1, though some of this discussion is redacted.

Then, in spite of the indication that Sterling had tentatively scheduled a meeting for July 5, 1999, we see no further meeting reports until November 5, 1999. (Though on July 23, 1999, someone applied for reauthorization to use Merlin as an asset; Exhibit 29.) It appears that only one cable from this period, which would have been numbered C2975-2976, was turned over during the investigation but not entered into evidence, if the Bates numbers on the cables are any indication. Given the report in the 11/5/1999 cable that Merlin had gone AWOL, it’s likely things were already going south between him and Sterling. From that period forward, Bob S either soloed or attended most meetings with Sterling and Merlin, with one very notable exception.

The exception was the January 10, 2000 meeting (Exhibit 35) at which Sterling informed Merlin CIA would withhold money Merlin believed – rightly, it appears – he was owed. Given that Sterling had already (on November 18, 1999) unsuccessfully requested a transfer out of NY, where he believed he was being harassed for his race, it’s hard not to wonder whether they deliberately sent Sterling out to deliver the bad news, anticipating they’d soon be giving Merlin a new case officer within short order anyway.

All of that is to say that, in spite of the several ways that Sterling appears to have managed Merlin with more professionalism than his prior case officer and arguably even than Bob S, Bob S was running the show, which includes making key decisions and at key moments, dictating how the reporting on the operation appeared.

Two versions of November 18, 1999

To see how this manifested, it’s worth comparing the two cables recording (in part or in whole) the November 18, 1999 meeting between Bob S, Sterling, and Merlin.

The first version (Exhibit 31), written on November 24 by Bob S from Langley and addressed to NY and Vienna – Office #5 – for information, appears under the heading “Iranian Subject 1 is in Vienna” and references a cable from Vienna (this cable, too, appears not to have been turned over as evidence). As such, the cable describes the results of the meeting with Merlin in context of the arrival of IS1 in Vienna, using the “good news” offered by Merlin as an opportunity to flesh out the plan for the blueprint hand off in Vienna. Presumably, paragraph 2 of the cable (which is redacted) lays out the news on IS1′s presence in Vienna. Bob S then presents all the good news involving Merlin in that context with a flourish.

During an 18 November Meeting with [M] Officer [Jeffrey Sterling] and HQS CPD Officer [Mr. S.], [M] provided two pieces of good news. The first was that he has obtained a new [Country A] passport (which he showed C/O’s) and will soon apply for an Austrian visa. His possession of a Green Card should facilitate the issuance of the latter. The second and more significant development was an e-mail dated 7 November which [M] had received from [Iranian Institution 1] Professor [Iranian Subject 2 IS2). [IS2] said he had been going through old e-mailsl and found a 1998 message from [M]. He asked [M] to respond and provide more information about himself. [M] did so in a generic fashion. This contact from [IS2] provides an excellent opportunity to ease [M]‘s (and his disinformation packet’s) way in to [Iranian Subject 1 (IS1)] who until recently was also [at Iranian Institution 1] and is still featured on its website.

He then goes on to lay out what he presents as a plan crafted with the help of folks at HQ and Sterling (remember, this was written from Langley, not NY). That plan includes recognition that Merlin is “no one’s idea of a clandestine operative;” to compensate for that, Bob S envisions (resources willing) a Sterling trip to Vienna so he can help provide clear instructions to Merlin as well as Mrs. Merlin traveling to Vienna with the scientist because she was instrumental in his cooperation with the CIA in the first place and is a calming influence.

4) Shortly before he prepares to launch in Vienna (see below RE timing and mechanics) we will have [M] advise [IS2] via e-mail that he is going on vacation in Vienna with his wife and will stop by the Iranian IAEA Mission there with a packet of interesting information for [IS2], asking IS2 to alert the mission to expect [M]. When he shows up at the mission, [M] will have the packet containing the [CP1] disinformation in an envelope addressed to [IS2] and will ask to see [IS1] to make sure the package gets delivered to the right man. [IS1] is likely to acknowledge that he too is from [Iranian Institution 1] and that he knows [IS2]. This will let [M] plant his story (of repeated efforts to find a receptive audience in Iran) more firmly and give the Iranians a chance to see that [M] is indeed a Russian and a nuclear weapons veteran. Even if [IS1] does not see [M] presenting a package with a known addressee at a prestigious Iranian [redacted] institution can only help advance our plan to have the information taken seriously.

5) Per discussion at HQS and with [Sterling], we believe it best to send [M] to Vienna with his wife in early January (after the Austrian Christmas pause and the Islamic holiday of Ramadan, which begins on 9 December and ends on 8 January) to make the approach to [IS1]. His wife, [Mrs M], was instrumental in getting him to cooperate with [CIA] in the first place and is a definite calming influence on him. [M] is no one’s idea of a clandestine operative and we believe it wiser to refrain from meeting him while he is in Vienna. That said, he needs to be thoroughly prepared. One option – contingent on available resources – would be for [Mr S] and [Sterling to] visit Vienna during the first week of the New Year [redacted] so he can given the rather differently-oriented [M] as much concrete detail about where he has to go and what he has to do as possible. [1 line redacted]

Spoiler alert: while Mrs. Merlin did travel to Vienna with her husband (and probably had a big role in even getting him to go and — my suspicion is – had a role in the operational security measures Merlin took which helped doom the operation, though neither she nor the CIA would ever admit that), Sterling never did make the trip, and Bob S’ instructions — which Bob S’ habit of flourish aside were probably also deficient because he was too familiar with the city — ended up being one of the problems with the trip. It’s worth mentioning, too, that according to Bob S’ testimony, he made several trips to case out Iran’s IAEA mission in the months leading up to the operation and one of his cables describes having done so too.

Now compare Bob S’ cable with Sterling’s (Exhibit 31), written on December 1, 1999, a week after Bob S’ cable and 12 days after the actual meeting (it’s probably worth noting that on the very same day this meeting took place, Sterling asked for a transfer out of CIA’s New York office, and within 5 days his boss was scolding him for having done so), and addressed to Langley and — like Bob S’ cable — Vienna, for information.

Sterling saves his enthusiasm over the outreach to Merlin from IS2 for his last paragraph.

Feel this is a fortuitous turn of events for the operation, as a preliminary thought, the contact from [IS2] can be exploited to either provide another person to present the material to, or somehow utilize this contact to provide a more definite entree to [IS1] for [M].

Curiously, that paragraph seemed to show little awareness of Bob S’ extensive plans for how to exploit the IS2 contact to provide “a more definite entree to IS1,” even though Sterling references the cable Bob S wrote.

Aside from the first, action, paragraph in Sterling’s cable (which is redacted), the sole apparent explanation for why he wrote a cable after Bob S had already written one reporting all the same news from the meeting as Sterling would seems to be the inclusion of the verbatim content of the outreach from IS2.

During the meeting, [M] mentioned that he had received the following email from [Iranian Subject 2 (IS2)] from [Iranian Institution 1] dated 7 Nov:

Dear [M]

I was reviewing my old mails. I found you last year email. I want to know more about you. Could you let me have more information regarding your work, your hobby, your interest, etc?

Regards,

[Iranian Subject 2]

[IS2]‘s email address is [redacted]

It’s not surprising Sterling included the verbatim email — he always did that in cables he wrote solo. It’s just rather curious that Sterling submitted his “preliminary thoughts” — along with the verbatim language — so long after Bob S had rolled out his plan.

Prelude to a clusterfuck

The next cable (Exhibit 33), dated December 16, 1999 and describing the December 14 meeting between Sterling, Merlin, and Bob S, reflects continued uncertainty about how to get Merlin to Vienna in such a way that he didn’t screw up the operation. “[M] has and will be provided with enough information so that any concerns he will have about finding the building should be alleviated,” the cable optimistically predicted. At that point, however, it wasn’t getting lost that had Merlin worried. It was that his wife would find out what he had been up to (though she almost certainly already knew).

When asked, [M] expressed as his main concern actually carrying the documents on his person when he travels to Vienna. [M]‘s preference is that his wife ([Mrs. M]) not know any specifics about his work for the CIA. He feels certain that she will discover the package and have many questions that he would prefer not to have to answer.

Note that the action paragraph of this cable is redacted.

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Merlin’s Testimony: “It’s Lie,” “I Don’t Remember,” and “I Don’t Know”

I’ve finally gotten a hold of the transcript for Merlin’s testimony in the Jeffrey Sterling trial (working on getting something I can post; he was apparently difficult to understand, in any case, so not even people present understood all this).

Reading it, it’s clear why the government has claimed, going back to 2011, that Merlin’s imminent death from cancer meant he should not testify. I don’t dismiss the gravity of his health problems (and also note that he is apparently on pain killers, including Oxycontin, which may have affected his testimony here). But he was a terrible witness, and pretty clearly lying on a great number of accounts.

But I’m interested in specifically how he denied things that appear either in James Risen’s book or in CIA cables.

It’s lie

About two things, Merlin was adamant. The first is the same thing that really elicited the Merlins’ ire when they read Risen’s book: the report that they were defectors.

Trump: It says you defected to the United States. Is that accurate?

Merlin: It’s lie.

Note, given the timing and the claim that Merlin might have been involved with the Soviet Union’s 1980s-era nukes, I entertain the possibility that they defected to some other country before moving to the US in the early 1990s. That’s true, especially, because when Merlin got his passport renewed in 1999, he did so from a country the name of which got substituted (meaning it probably wasn’t Russia; the original appears to be 9 characters long, so Ukrainian is a possibility), though it could just be a successor state. Whatever the case, the timing of the Merlins’ arrival in the US and their certainty with which the government repeatedly said they did not defect convince me that Merlin is correct here: they were not defectors.

Similarly, Merlin is equally adamant that the description in Risen’s book that Merlin tried to warn the Iranians of “flaws” in the blueprints he handed them was not true.

Trump: In paragraph 64, the book represents on page 205 that the letter was warning the Iranians as carefully as you could that there was a flaw somewhere in the blueprints. … Was that the purpose of the letter?

Merlin: It’s, it’s lie. [Later] I don’t see flaws here. It was just incomplete information.

While it’s certainly true that Merlin’s and the government’s understanding of the significance of the incomplete information in the blueprints was very different – elsewhere Merlin claimed that a real fireset schematic was “100 times more complicated than it was shown in drawing and the schematics” – it is also true that Merlin appears not to have known about the deliberate flaws US scientists put in the blueprints. So he is correct that the representation in Risen’s book is incorrect on that point.

I don’t remember

Then there are a series of questions about which Merlin likely feels some shame, about which he professed not to remember the correct answer. One of those topics pertained to whether his wife also spied (note, Merlin and the CIA both are almost certainly lying about how much Mrs. Merlin knew about this operation).

Trump: Did your wife at the time also agree to cooperate with the CIA?

Merlin: No.

Trump: Did she eventually?

Merlin: She didn’t know anything about it.

Trump: She didn’t know anything about what you did, is that correct?

Merlin: Yes.

Trump: But she was interviewed from time to time by the CIA as well?

Merlin: I don’t remember. Probably.

Merlin’s wife remained on the CIA payroll after he claims he stopped getting paid. Surely he knows that. But he’d prefer not to admit it.

Another of the topics about which Merlin forgot the correct answer came in response to a defense question about whether he ever used his American PO Box in communications with Iranians.

MacMahon: Did you testify earlier today that in all of your communications with the people, the Iranian institutions or otherwise, that you, you didn’t use any kind of an American address in any of those documents?

Merlin: I don’t remember.

Now, it’s possible Merlin’s earlier answer on whether he had used his PO Box on correspondence with Iran is correct: that is, it may be that he always ignored CIA’s orders to do so, and CIA simply never found out about it (perhaps in part because the case officer before Sterling did not track that correspondence as closely as Sterling did). But the CIA record shows that he first started balking about using his actual geographic location about a year before going to Vienna, but before that had publicly used his PO Box.

I don’t know

Then there are a series of questions where Merlin clearly either had forgotten key details, or wanted to avoid admitting the truth.  For example, when asked by prosecutor Jim Trump (who had met with Merlin before this deposition to go over it) whether this was a rogue operation, Merlin first offered up that it was a “brilliant” operation (elsewhere he took credit for Iran not have gotten nukes since 2000).  But when asked a question to which the answer is clearly yes — whether it took significant persuading for Merlin to complete this operation — he claimed he didn’t know.

Trump: It states that prior — prior to your trip to Vienna now is what is being discussed here. “It had taken a lot of persuading by his CIA case officer to convince him to go through what appeared to be a rogue operation.” Is that accurate?

Merlin: It was not rogue operation at all. It was brilliant, brilliant operation.

Trump: Did it take a lot of persuading by you — excuse me, by your case officer to go through with the operation?

Merlin: I don’t know.

Merlin walked out of the meeting on final preparations, after having walked out of the meeting prior. That wasn’t, apparently, because Merlin cared whether this was rogue or not, but because he thought the risk to him was too great for the money he was being paid. But the answer to whether it did take persuading should have been yes.

Just as interesting, when Merlin was asked by defense attorney Edward MacMahon whether he had ever before this deposition told the FBI or CIA he had destroyed the disk on which the final version of the letter to the Iranians, he said he didn’t know.

MacMahon: The first time you–you were, you were asked questions over, over a space of many years, and you never told the FBI at all that you had destroyed the disk that you took to Vienna, did you?

Merlin: I don’t know, but there was, was no reason to bring it back. It just put myself in additional danger to have such disk in possession. If somebody stop me and read this disk, I’m in trouble.

MacMahon: Okay. But you didn’t tell the FBI, you didn’t tell anybody until today as a matter of fact that that’s what your story was as to what you did with the disk in Vienna, correct?

Merlin: I don’t know, but again, it was no reason to keep this disk when action was, operation was accomplished, and no reason to keep it as a drawing, as letter, as whatever.

The answer is clearly no, but Merlin doesn’t want to admit that for some reason (I’ll return to the significance of this question in a future post).

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CIA Stiffed Merlin on His Spy Salary

Screen Shot 2015-02-07 at 1.04.06 PMBob S — the guy in charge of the Merlin operation — appears to have made a false claim under oath at the Jeffrey Sterling trial.

To be fair, I think he told a lot of fibs — shading his description of a program that was an operational disaster as something less laughable, even as walking the court through documents that (upon a close read) make it clear how laughable the program was. And I suspect — though cannot yet prove — that he engaged in far more serious deceit while testifying against Jeffrey Sterling under oath.

But according to CIA’s own records, Bob S was not telling the truth when he claimed, repeatedly, “our record keeping was better than” Merlin’s about his complaint, in early 1999, that he hadn’t been paid his full salary the previous year was incorrect. He was not being fair to Merlin when he claimed, when Merlin complained again in early 2000 – just weeks before Merlin would travel to Vienna to hand the Iranians a newspaper-wrapped nuclear blueprint — that was “getting cocky” when he demanded he get paid his salary.

To be sure, Merlin also appears to have bilked the CIA over the years, charging them for things like his long distance phone line and a $200 modem, presumably as a way to increase his take from the Agency.

But the CIA knew Merlin was working with them for the money. “[M]‘s operational motivation for this activity is almost purely financial., and his desire to continue earning income from [CIA] something that [M] was very frank and honest about during his meeting with C/O and CPD officers,” his then-handler Laurie D wrote in a cable (Exhibit 5) pitching him for the operation in January 1997.

In spite of the importance of money to Merlin’s motivation, they do appear to have botched their record keeping, every bit as much as Merlin. And it was an issue that — even according to Bob S — poisoned the working relationship between Sterling and Merlin. But it also appears to have made Merlin much less willing to do what CIA wanted him to do.

On February 24, 1999 (Exhibit 21), Sterling and Merlin met for 3 hours. During the meeting, Sterling paid Merlin “one-third of his ’98 salary (USD 20,000.00)” but then reminded Merlin that he could only be reimbursed for things tied to his work with the CIA and expressed confusion that Merlin was billing the CIA for two phone lines when he should only be billing for the one tied to Internet access (by this point, Hotmail). “From that moment on,” Sterling told Merlin, “[M] would only be reimbursed for the phone line dedicated for use by [M] in furtherance of the project.”

Merlin responded by noting he had been making the same amount (so, presumably $60,000, though Langley disputed that in his testimony) for two years, and “some adjustment may be in order.” Merlin suggested that a raise would do away with his need to charge the CIA for petty expenses like the phone line. While an entire paragraph of this discussion is redacted, in response, Sterling and the New York office recommended he get at least a $250/month raise, and asked Langley to consider Merlin’s request for life insurance, given that he was contemplating meeting Iran, which raised some risk.

On March 16, 1999, Sterling explained (Exhibit 22) that Merlin’s new agreement “will include an increase of USD 1000.00  in his monthly salary. [Sterling] said that with such a sizable raise, there would be some changes with regard to the reimbursements that [M] has been receiving. [Sterling] explained that [M] would not longer be reimbursed for phone expenses related to his use of the Internet for the project.” And Merlin was on his own for life insurance. Again, almost a paragraph of this financial discussion is redacted, but that should have raised Merlin’s salary to either $72,000 (if the $60,000 Sterling used) or $67,000 (using the disputed amount) once he signed his new agreement.

On April 12, 1999 (Exhibit 23) — less than two months after handing over “one-third of his ’98 salary (USD 20,000.00),” Sterling “had to inform [M] that the balance of his 1998 salary is USD 55,000.00 as opposed to 60,000.00.” So Merlin did what any underappreciated worker might do. “[M] threatened to quit since the money discrepancies seem to crop up every year. [Sterling] immediately challenged [M] on his statement asking [M] if he was ready to quit based on a mere USD 5,000.00 (especially in light of the total amount of his salary). [Sterling] requested a point blank answer from [M] on what his actions will be. [M] calmed down and said that he is weary of the same pay discrepancies occurring year after year, but said he will not quit the project.”

Sterling went on to suggest he, as the case officer, might not have been entirely certain what was going on. “[Sterling] told [M] that the reason for the discrepancy will be found, and that it is not beyond the realm of possibility that [M] has already been paid for one month out of ’98 that would make his ’98 total USD 55,000.00. [M] then signed a receipt for USD 35,000.00. To date, [Sterling] has paid [M] USD 55,000.00 representing his 1998 salary.”

Most of the following paragraph is redacted, though it speaks “also” of a “M/2′s” status update — perhaps a reference to Merlin’s wife, who was also a CIA asset.

On May 5, 1999, Sterling seemed to confirm that Merlin had been correct (Sterling appears to have used the wrong date in paragraph 2). (Exhibit 24) “[Sterling] paid [M] USD 5,000.00 as the balance of his 1998 salary (USD 60,000.00). [Sterling] believes that the previous confusion with regard to the amount of [M]‘s 1998 salary was based on the fact that his [agreement] spans a Feb – Jan timeframe which is somewhat different from the normal fiscal year timeframe of Jan – Dec.”

There’s a big jump in cables before the next meetings described, in part because the government didn’t introduce the July to October ones into evidence, in part because Merlin went AWOL for the month leading up to a November 4, 1999 meeting. From what we see of cables between November and January, though, money issues don’t arise again until January 10, 2000, at one of what appears to be the first meetings in a while where Sterling meets with Merlin without Bob S as well. As Sterling notes in the summary of the meeting (Exhibit 35), “Despite the progress made and [M]‘s apparent readiness, issues related to [M]‘s salary [redacted] have placed doubt as to whether [M] is willing to continue with the project.” Here’s what Sterling had to tell Merlin just weeks before he was supposed to deliver a nuclear blueprint to Iran in Vienna:

[Sterling] took pains to explain to [M] in a reasonable fashion that the current payment scheme was causing problems and that a new structure had to be introduced. [Sterling] also explained that [M] would be receiving a ["additional information regarding his 1999 salary" replaces 3-4 redacted lines]. [M] had no difficulty that his future salary would be paid to him as earned [one line redacted] [Sterling then told [M] that as a result of the measures being taken to correct his salary situation, review of his salary history indicated that he had been overpaid by USD 5,000.oo in Feb ’98. And, as a result, his ’99 salary would have to be reduced by 5,000.00. [Sterling] had 60,000.00 for [M] representing Feb -Nov ’99 (6,000 per month). Though [M] earned 66,000 for Dec ’99, this amount was reduced by 5,000.00 per HQS information that [M] was overpaid by 5,000.00 in Feb ’98. [Sterling] chose not to bring the remaining 1,000.00 in anticipation that [M] would not understand the reduction in his salary amount. During the conversation, [Sterling] tried to explain that the remaining amount (either USD 1,000.00 or 6,000.00) would be paid at the next meeting once it is clearly determined that [M] had in fact been overpaid by 5,000.00.

[M became incensed and said that [Sterling's] infoformation was not correct. [M] said that the money he received in Feb ’98 was for a Dec ’97 payment that he had not received and therefore had not been overpaid in 1998 as [CIA] contends. [M said that he has waited too long for his finances to be corected and that he did not wish to  proceed with project any longer. [M] then proceeded to blame [Sterling] for the salary problems. However, [Sterling] quickly reminded [M] that the difficulties experienced with his finances were a result of activities prior to ’99, i.e. before [Sterling] was involved.

After some more back-and-forth, Merlin left the meeting. Sterling called him the following day. And while Merlin was calmer, he still said that “he will not proceed with the project unless and until he receives [additional information about his salary] and USD 66,000.00 that he believes he is due, or a promise from us that these items are coming to him.” In the cable, Sterling and his manager suggested that Bob S travel to NY to explain and resolve it.

Two days later, Bob S wrote back to Sterling (Exhibit 36), apologizing that Sterling had to do the dirty work, but showing little sympathy for Merlin.

HQS regrets that [Sterling] was a victim of the murdered messenger syndrome after bringing (not very) bad news to [M]. Any confusion about [M]‘s salary is largely his own fault because he wanted to be paid different parts of his salary in different years. That said, he may be right about the early 1998 payments, and he is evidently quite emotional beneath the stolid surface and not capable of sorting it all out rationally. He has had a lucrative relationship with us since 1994 and is acting in an immature fashion. Nevertheless, we need his services now and [Mr. S] will seek to placate him. We propose paying him the disputed salary. We will carefully consider an appropriate operational bonus upon the successful completion of his Vienna mission.

The next cable, describing a February 14 , 2000 meeting with Merlin (but written by Bob S back to NY), revealed that Merlin remained pissy about the salary issues, actually walking out of the meeting at which Bob S was supposed to placate him. Bob S doesn’t provide much detail on what happened, describing Merlin’s “histrionics” as having to do with “minor proposed changes in his [agmt],” judging that “none of [M]‘s desires concerning his [agmt] are show stoppers (cash payment, [redacted] a small disputed sum),” and stating he would bring the previous year’s agreement and work off that to a follow-up.

Bob S’ account of that follow-up visit (which Sterling did not attend; Exhibit 38; this time the cable Bob S writes the cable from NY to Langley) indicates “we could meet him halfway on when and how he is paid,” though the roughly 4-5 line description of what that means is redacted. Bob S “paid him $66,000 for his 1999 earnings and provided $5000 as a travel advance.”

Which is what happened immediately before Merlin got on a plane to Vienna and failed to follow most instructions about how he was supposed to hand over a nuclear blueprint to Vienna.

Now, I lay this out not just because it shows CIA’s dysfunction again. All the more when you compare the numbers submitted as a stipulation at trial (see above), which make it hard to understand how Merlin is not absolutely correct that the CIA stiffed him in 1998. Even if his salary was supposed to be just $55,000 and even accounting for the weird accounting he apparently requested, he received less than $49,000 in a year when 11 months at a $55,000 rate would have been $50,416. And at least from the narrative we have, Sterling made all the payments to Merlin that transpired in 1999, and the money that Bob S ultimately paid Merlin would might work out to be $71,000, but that would not seem to account for his $1,000 raise. It’s possible they changed all that in the redacted bits (or, as CIA seems to like to do, retroactively). But both the confused actions of Sterling and Bob S and the actual numbers compared to the stated numbers in the cables suggests, at best, that CIA’s accounting system is just as screwy as Merlin’s could have been, if not worse. (Note, the first several years of Merlin’s finances with the CIA also don’t appear to match the testimony of his first case officer, Stephen B, who said they had a dispute over whether Merlin would work one year for $150kK or two for $300,000, the latter of which is what the CIA wanted.)

So there was no reason for Bob S to claim that Merlin was in the wrong. At the very least, CIA’s records were so fucked up, neither a case officer or a program manager could figure this out over months and years. And it at least appears Merlin is in the right (but then, what court can he appeal to?).

At one level, I attribute this to just more Bob S spin — along with his inability to hide his disdain for others and his real need to blame others for the clusterfuck that became the Merlin program.

But it’s important to identify because it raises one possible motive for the Merlins to want this story to come out (remember, at first they weren’t all that bugged by the book, until they realized Merlin looked bad in it). But it also puts another perspective year-and-a-half leading up to the beginning of Sterling’s disastrous end with the CIA. They were treating his job as case officer to fix the financial screw-ups made years earlier. Bob S sent him out to do that alone, and only after came in to rain down cash on Merlin.

It was probably just garden variety CIA (even, generic bureaucracy) screw-ups behind the scenario. But nevertheless, it likely had real consequences both for Merlin’s willingness to do his job as ordered and Sterling’s feelings about the trustworthiness of the Agency.

 

Merlin Was Reading James Risen in 1999

On March 16, 1999, Jeffrey Sterling met with Merlin, the Russian scientist Sterling was trying to get to establish ties with Iran so he could hand off a nuclear blueprint. (Exhibit 22) Merlin seemed to be getting impatient — and perhaps a little insulted — that the Iranians he was approaching weren’t showing more interest in his 20 year experience as a Russian nuclear engineer. So he made an utterly bizarre suggestion.

[M] then suggested that in some of his future messages, he may make mention of the recent revelation that another country had secured nuclear secrets from the U.S. [M]‘s reasoning was that others now see that it is possible to obtain nuclear secrets which can advance their programs, and that the project can build upon that supposition to entice the Iranians. [Sterling] lauded [M] for his thinking but said some thought would need to be given to such a proposition prior to [M] implementing it.

Merlin has to be referring to the stories about Wen Ho Lee which started appearing on page one of the NYT starting on March 6, 1999. (Remember, too, that Merlin lived in the NY area, so if he read this in the dead tree version — as most people still read newspapers in 1999 — he most likely read it in the NYT.)

Those stories were written by James Risen.

Which is strong evidence that Merlin was reading Risen as far back as 1999.

Merlin’s suggestion — that he, a CIA asset, entice Iran to accept his Russian blueprint by pointing out that China had allegedly jump-started its own nuclear weapon program by stealing blueprints from the US — reveals just how unclear on the concept of the operation Merlin was. After all, it had to have been suspicious enough to Iran that a Russian who had moved to the US was seeking to deal blueprints (it’s unclear whether the blueprints were ultimately in English or Russian). Any suggestion that the Iranians would thereby be getting US, as opposed to Russian, technology should have alarmed them greatly.

It’s also, of course, a bizarre commentary on the arc of Risen’s career, that the main character in a future book of his would be monitoring nuclear developments by reading Risen. Risen, of course, managed to protect his sources in both cases, in a series that unfairly identified Wen Ho Lee as a Chinese spy and in a book that raised real questions about what our nuclear establishment was doing.

I’m still waiting for Merlin’s transcript on this point, but his wife was asked whether she and her husband knew of or knew Risen. “I start to know about Jim Risen after he wrote the book,” Mrs. Merlin testified on the stand in her imperfect English. She went further, asserting that her husband did not know (it’s unclear whether she meant “of,” or “personally”) before, either. Given how much of the Wen Ho Lee story was driven by Risen between March 6 and March 16, 1999, Merlin probably had known “of” Risen for years before Risen started reporting on the operation that we now refer to by Merlin’s codename.

And yet, I’m fairly certain, the fact that Merlin offered up Risen reporting to the man now convicted of having leaked to Risen, Jeffrey Sterling, 4 years before that leak began, never got mentioned at the trial.

CIA’s Merlin Was Arranging Fake Nuclear Deals on an AOL Account Shared with His Wife and Kids

CIAWitness after witness in the Jeffrey Sterling trial made claims about how closely held the program was. “More closely held than any other program,” Walter C, a physicist who worked on the program described. “More closely held,” David Shedd, currently head of the Defense Intelligence Agency and head of Counterproliferation Operations until just after the Merlin op, said.

Of course, Bob S’ admission that — when FBI showed him a list, in 2003, of 90 people cleared into the program, he said it was incomplete — suggests all those claims are overstated.

But the details of just how careless the CIA was with Merlin’s identity raise further questions about claims that the operation – and especially Merlin’s identity — was closely held. Most striking to me is the revelation (Exhibit 17) that for months and months, Merlin was pitching his nuclear experience to Iran on an AOL account shared with his wife and kids. In the cable describing a January 12, 1999 meeting with Merlin (what appears to be the first where the two met alone) Sterling explained that Merlin had just opened a separate Hotmail account to use for his CIA spying.

“[M] also opened another email account through Hotmail. [M] opened the new account so his family, who also utilizes his AOL account, cannot access his email related to the project.”

That means from at least April 15, 1998 (see Exhibit 8, though Exhibit 16 suggests the effort started in November 1997), when Merlin started trying to make contact with Iranians who might be interested in a Russian nuclear scientist, until January 1999, Merlin’s contacts with Iran were completely accessible to his wife (who, given the evidence — as opposed to the sworn claims — presented in the trial, almost certainly knew anyway) and his kids (who may not have).

The AOL to Hotmail account switch appears to have been Merlin’s idea, but Sterling’s performance review for this period (Exhibit 60; note, it uses the name Samuel Crawford to protect Sterling’s identity) seems to reflect Sterling’s effort to train Merlin out of bad security habits. It says Sterling, “maintained a strong [counterintelligence]/security posture in all that he did during the reporting period, particularly a high interest sensitive case … and is constantly seeking to improve the security of his cases.” Indeed, the same cable covering the January 12, 1999 meeting in which Merlin and Sterling alone took part — which revealed Merlin had finally gotten a dedicated email account for his CIA work — also described Sterling walking Merlin through changes to his handling approach, including apparently meeting in hotel rooms rather than primarily restaurants all in the same neighborhood. Sterling also appears to have had to prompt Merlin to share all his correspondence with the Iranians with him (though Merlin didn’t always do so).

The CIA, it appears, intended for Merlin’s real identity to be readily obvious to the Iranians (and, based on the presumption at the heart of this operation that the Iranians were working closely with Russia, also to the Russians). On several occasions, defense attorneys asked CIA witnesses if they were “dangling” Merlin, a term the witnesses clearly wanted to avoid repeating. Nevertheless, it is clear they intended to dangle him, barely hiding his identity or location. Merlin used his real name in his outreach to Iran. He cited “his true background” in messages to Iranians (Exhibit 16; note that in Exhibit 17 and 18, CIA has actually redacted some of the information on himself Merlin sent to Iranians). He used his home email address in classified ads (and changed it when he got the Hotmail account). His approaches used a PO Box that appears to have been close to his home. (Exhibit 16)

Then there were other issues that raised alarms for me. From roughly October 12, 1998 through December 10, 1998, spanning the period when Merlin went to San Francisco for his “training” on the blueprints, Merlin’s home computer was being repaired (he accessed some email from work). When he got the computer back “it seemed slower.” Shortly after Merlin got the new email (Exhibit 18), he told Sterling he had been blocked out with an “Intrusion detected,” warning, and had been told “evidently at least two people had tried to open the account.” In February 1999 (Exhibit 21), Merlin told Sterling he was having problems with his AOL account (though didn’t explain what sort). Then there’s the period in October and November 1999 when Sterling couldn’t contact Merlin; he said he was visiting his wife in Florida. Admittedly, Sterling was tracking this stuff closely (I wonder whether the government had Merlin on what amounted to a consensual wiretap). Because the government only released cables from the period when Sterling handled Merlin, however, we can’t know whether the earlier, sloppier operational security extended to Merlin’s online life.

And ultimately, this loose operational security — and Merlin’s backlash to it — appears to be one of the things that led Merlin to botch the operation, to (apparently) give Iran what was meant to look like a sales proposal with no way for Iran to contact him.  A full year before the delivery (Exhibit 18) Merlin started using initials rather than his name in correspondence with the Iranians. He balked at the CIA’s insistence that he send a (slightly doctored) resume along with his outreach attempts. He started sending related letters via separate envelopes, even sending them from separate states (CIA doesn’t appear to want to hide that Merlin was in a position to send letters from both New Jersey and Connecticut).

It was very clear that Merlin did not want his identity associated with the documents in question and — because CIA had decided to have him finalize the letter on his own in Vienna — he chose not to leave much of it with the package. He left off his PO box from the package, which was how the Iranians were supposed to respond, which was one key to any ongoing intelligence gathering aspect to the operation. The CIA had Merlin leave a sales pitch with no way for interested buyers to act on that sales pitch.

And yet they called this operation a big success.

As the Senate Intelligence Committee’s report (Exhibit 101) on Jeffrey Sterling’s whistleblower complaint describes, “In the end, the entire plan was turned over to the Iranians without any means for further follow up. However, CIA supposedly deemed the operation a success.”  The government repeatedly claimed Sterling lied or spun facts to get the SSCI and Jim Risen interested in this story. But on this point — that Merlin left a nuclear blueprint wrapped in newspaper without an address to follow-up with — Sterling was absolutely correct.

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Emptywheel Twitterverse
bmaz @bmaz Picture for last tweet (just because): http://t.co/5XJBgnbYOn
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bmaz If I've found on kitchen counter book titled "How To Boil Water", should I not leave one called "How To Breathe Air"??
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bmaz @TyreJim I have seen both live, and as great as Merry is, live I think Lisa Fischer is better.
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bmaz @TyreJim Yes. As I recall, she was like pregnant and asleep when the call came. Which makes what she did all the more awesome.
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bmaz .@TyreJim Either way pieces of hollow trash like Kanye West+Kardashian ought not exist is same human frame as Jagger/Richards+Clayton/Fisher
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bmaz Oh, a storm is threat'ning My very life today If I don't get some shelter Oh yeah, I'm gonna fade away War, children, it's just a shot away.
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bmaz @AZ_Dream_Killer Bad equivocation.
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emptywheel I mean I'm still winning bc I rescheduled my flights from airport bar in Beer Mecca and now am home. But they rescheduled my reschedule. :(
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emptywheel Thought I had wung this ice storm cancellation sweepstakes. Then I learned I was wrong. But at least I can sleep past 4AM.
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JimWhiteGNV RT @bmaz: Also, if you think Bibi Netanyahu is the answer to your question of enlightenment and hope for the world, you might be a blitheri…
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bmaz Also, if you think Bibi Netanyahu is the answer to your question of enlightenment and hope for the world, you might be a blithering idiot.
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bmaz Seriously, there are dumb ass pieces of demagoguery shit on both sides of the ideological divide; but fuck both without a lick of truth
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