In a piece for Salon, I describe how the government managed to get Jeffrey Sterling convicted of 7 charges under the Espionage Act for one leak. More importantly, I show how the jury’s conviction of him for 2 of those charges — related to “causing” James Risen to write a 2003 NYT story on Merlin that got quashed — may well amount to convicting him for tipping Risen, without sharing any classified information, to the operation.
Here’s the key part of that discussion:
D.C. information brokers should be worried that Sterling faces 80 years in prison based off this circumstantial evidence. All the more so, given the evidence supporting the charge that Sterling leaked to Risen in time for and caused him to write the article Risen told CIA he had in completed draft on April 24, 2003. After all, the only pieces of evidence that the government submitted from before the time when Risen told CIA he had a completed article were the CNN email, phone calls reflecting Risen and Sterling spoke for four minutes and 11 seconds across seven phone calls, and Sterling’s entirely legal discussion with staffers from the Senate Intelligence Committee.
No matter what you think all the later phone calls between Sterling and Risen indicate, short of evidence of a face-to-face meeting in this earlier period, the evidence seems to suggest Sterling was doing something that people in DC do all the time: point an investigative reporter to where she might find classified scoops, without providing those scoops themselves. That’s especially true given the way the CIA’s own notations about Risen’s story seem to track the reporter fleshing out information, from initial outlines of the operation (that happen to map what Sterling told Senate staffers) to, weeks later, inclusion of that elusive document FBI never managed to find. That is, it appears Risen got a tip, possibly from Jeffrey Sterling, but that he spent weeks using his sources to flesh out that tip.
In both the indictment and discussions about jury instructions, the government interpreted the Espionage Act to cover what might be an unclassified tip through two means. First, they pointed to language in the Espionage Act that criminalizes someone “caus[ing secrets] to be communicated, delivered, or transmitted,” and from that argued Sterling was responsible not just for the leak to Risen but also for the journalist’s attempt to publish a newspaper article and his completion and his publisher’s delivery to Virginia of a book chapter. Then, for most counts, they argued that Sterling did not have to have handed Risen secret information directly, he could do so indirectly.
If the jury found Sterling indirectly got secrets into Risen’s hands and, from that, caused him to write an article and a book chapter on it (irrespective of the additional work Risen did, the work of his editors at the Times and the publishers at Simon and Schuster and the commercial freight company that carried those secrets in a bound book to Virginia), that was enough to send him to prison for most of the rest of his life.
While it’s all well and good that DOJ backed off plans to force James Risen to testify, I think few realize the implications of Sterling being held responsible for an entire NYT story based on four minutes and 11 seconds of phone conversations.
They may well criminalize providing unclassified tips to get reporters to chase down classified stories.
When the National Security Council tweeted out on Narenda Modi’s meeting with President Obama, I realized that Modi has 9.7 million twitter followers (which makes sense, given India’s population), which got me interested in whether there was another world leader who had more than Modi.
Here’s what I’ve learned so far (I’m including the Dalai Lama and Pope for comparison purposes).
Barack Obama: 53.7M
Dalai Lama: 10.2M
Narendra Modi: 9.7M
Recep Tayyip Erdogan: 5.6M
Enrique Pena Nieto: 3.54M
Juan Manuel Santos (Colombia): 3.52M
Cristina Kirchner: 3.5M
Dilma Roussef: 3.2M
Joko Widodo (President of Indonesia): 2.66M
Najib Razak (PM of Malaysia): 2.33M
Nicolas Maduro: 2.23M
Rafael Correa (President of Ecuador): 1.97M
Salman bin Abdul-Aziz Al Saud: 1.6M
David Cameron: 900K
Francois Hollande 858K
Paul Kagame (Rwanda): 787K
Uhuru Kenyatta: 715K
Shinzo Abe: 446K
Tony Abbott (Australia): 430K
Park Geun-Hye (South Korea): 372K
Jacob Zuma: 348K
John Key (New Zealand): 149K
Luis Guillermo Solis (Costa Rica): 133K
Lee Hsien Loong (Singapore): 128K
Michelle Bachelet (Chile): 59K
Evo Morales: 56K
Goodluck Jonathan (Nigeria): 25K
Abdel Fattah Elsisi: 1.8K (no tweets)
Enda Kenny (Irish Taoiseach): 26K
No twitter account: Angela Merkel
“Hey, William Shirer? It’s J. Edgar here. I think you’re disgusting for reporting from Nazi Germany.”
Actually, I have no idea what J. Edgar Hoover thought of William Shirer’s reporting from Nazi Germany. I don’t even know whether Hoover ever spoke to Shirer. But I’m trying to imagine what it would feel like for the FBI Director to publicly call out one of the most invaluable journalists — and after that, historians — during World War II and tell him his work was disgusting.
It’s an image conjured up by this Jack Goldsmith response to my earlier post on Jim Comey’s suggestion that the NYT was “disgusting” for giving an AQAP member anonymity to clarify which Parisian terrorists they have ties with and with they do not.
Marcy Wheeler implies that Comey here “bullies” the NYT. No, he criticized it and “urge[d]” it to “reconsider.” He made no threat whatsoever, and he had no basis to make one. That is not bullying. Wheeler is on stronger ground in pointing out that the USG speaks to the press through anonymous sources all the time, including in its claims about civilian casualties in drone strikes. I don’t like press reliance on anonymous sources. But I also don’t think that the U.S. government and its enemy in war, AQAP, are on the same footing, or should be treated the same way in NYT news coverage. (Imagine if the NYT said: “A source in the child exploitation ring told the New York Times on condition of anonymity that his group was responsible for three of the child kidnappings but had nothing to with the fourth.”) The NYT appears to think they are on the same footing and should be treated the same when it comes to anonymous sources. Comey disagrees, and there is nothing wrong with him saying so publicly. The press is immune from many things, but not from criticism, including by the government.
For what it’s worth, I actually can imagine it might be incredibly important for a newspaper to give criminals anonymity to say something like this, particularly if the newspaper could vet it. It might well save lives by alerting cops they were looking for two child exploitation rings, not one. As with the NYT quote, which alerts authorities that the threat is a lot more nebulous than declaring it AQAP might make it seem.
Yet Goldsmith is involved in a category error by comparing AQAP to a gang. Sure, they are thuggish and gang-like (albeit less powerful than some Mexican cartels).
But the US does not consider them a gang. It considers them, legally, an adversary in war (just ask Anwar al-Awlaki, who was killed based on such an assertion). And there is a very long and noble history of journalists reporting from both sides in time of war, through whatever means (though as with Shirer, the journalists ultimately need to judge whether they’re still able to do independent reporting). Indeed, having journalists who could make some claim to neutrality has been fundamentally important to get closer to real understanding. More recently, Peter Bergen’s reporting — including his secure meeting with Osama bin Laden — was crucially important to US understanding after 9/11, when few knew anything about bin Laden.
And the logic behind giving an AQAP source anonymity — and secure communications — is particularly powerful given that the US shows no respect for journalists’ (or human rights workers’ or lawyers’) communications in its spying. Nor does it consider anyone “in” a terrorist group, whether they be propagandists, cooks, or drivers, illegitimate for targeting purposes. Thus, any non-secure communication can easily lead immediately to drone killing. But killing this one guy talking to NYT, however much that might make Jim Comey feel good, is not going to solve the problem of Muslims in the west choosing to declare allegiance to one or another Islamic extremist group before they go on a killing spree. Hell, if some of the claims floating around are correct, killing Awlaki hasn’t even diminished his ability to inspire murder.
In the case of Yemen (or Pakistan, or Somalia, or Syria) in particular, just speaking to a journalist can put someone in grave danger. For example, I’ve long wondered whether problematizing the US government claims about Umar Farouk Abdulmutallab in Jeremy Scahill’s book made Mullah Zabara, who at least accepted AQAP’s role in his province, a target for assassination. Nevertheless, I’m grateful to him (and Scahill) for revealing Abdulmutallab was staying at Fahd al-Quso’s farm, which presented a critical counter detail to some of the government’s claims accepted credulously in the press.
The US government and the US public is far, far too ignorant about the people we’re fighting. A little better insight into their views would help us all. If journalists have to use secure communications and extend anonymity to get that — and ethically, there may be little else they can do — then they should do that.
We are not winning this conflict, and we won’t win it, so long as we try to criminalize the adversary’s propaganda rather than offer a more compelling ideology than they are to those they’re successfully recruiting. And this urge for someone as powerful as Jim Comey to get snitty when the NYT reports not ideology, but information, from AQAP reveals nothing more than an impotence to wage that ideological battle.
Best as I can tell, the FBI Director has officially told the NYT to stop republishing anonymous government claims about drone strikes anymore.
“Your decision to grant anonymity to a spokesperson for [an organization] so he could clarify the role of his group in assassinating innocents, including a wounded police officer, and distinguish it from the assassination of other innocents in Paris in the name of another group of terrorists, is both mystifying and disgusting,” Mr. Comey said in a letter to The Times.
He added: “I fear you have lost your way and urge you to reconsider allowing your newspaper to be used by those who have murdered so many and work every day to murder more.”
Oh wait. That’s not what Comey was complaining about.
He’s complaining about this paragraph, which — in an article that also grants “American counterterrorism authorities” anonymity (with no explanation) — helps clarify the relationship between the perpetrators of the Hebdo Charlie attack.
A member of Al Qaeda in the Arabian Peninsula, who spoke to The New York Times on the condition of anonymity, said the joint timing of the two operations was a result of the friendship between Mr. Coulibaly and the Kouachi brothers, not of common planning between the Qaeda group and the Islamic State.
That is, Comey is complaining that the NYT is using the same methods — anonymous sourcing — to find more knowledgeable sources to explain the attacks that it uses to parrot official governmental sources. Only Comey and his colleagues’ claims about the attack may be laundered through anonymity under his approach. Not better positioned sources.
Which I guess means he’s happy that the NYT anonymously publishes the claims of US government officials clarifying that the civilians they kill in drone strikes are not civilians, or even clarifying whether the CIA or DOD killed a particular person. He just doesn’t want the NYT to anonymously quote other killers’ spokespersons trying to clarify what the killing is about.
Chuck Todd figured the best way to engage in journalism after the release of the Torture Report was not to invite one of the many interrogators who objected to torture or, having performed it, learned that it damaged them as much as the detainee (Kudos to ABC and CNN for having done so), but instead to invite Dick Cheney on to defend anal rape (which Todd did not call anal rape).
And while Todd had a Tim Russert style gotcha — Dick Cheney predicting 20 years ago that overthrowing Saddam would lead to the disintegration of Iraq and untold chaos — when Dick Cheney explained that 9/11 changed that earlier analysis, Todd offered the most impotent rebuttal, noting that the report undermines that claim, without doing any of several things:
Todd, of course, did none of those things.
I guess Meet the Press believes they’ll return to the glory of the Tim Russert era if they do the same thing Tim Russert did in his last years, offer Cheney a platform to lie and lie and lie.
For 12 years now, Meet the Press has been willing platform for unchallenged Dick Cheney lies.
Last week, a number of people hailed the further declassification of DOJ Inspector General’s Report on FBI’s use of Exigent Letters.
That enthusiasm is misplaced, however. What too few people noticed is the thankless work Charlie Savage did to identify what was newly declassified. He had FOIAed the IG Report, which is what set off the declassification review.
In fact, FBI redacted three things that had previously been visible. On page 55/PDF 68, it redacted the title, “Diagram 2.1: Calling Circle or “Community of Interest.” On page 105/PDF 118 they redacted language indicating they use a certain kind of “language” to order what are probably also communities of interest. Finally, on page 207/PDF 220, FBI newly redacted the title, “Chart 4.3 Records for 10 Telephone Numbers Uploaded to FBI Databases With the Longest Periods of Overcollection.”
So the NYT sued the FBI to declassify language that should be declassified, given everything we’ve learned about related programs subsequent to the Snowden leaks, and FBI responded by trying to pretend we don’t know they were getting (and still get, per DOJ IG’s most recently report) call chains from telecoms.
To be fair, FBI did declassify some new stuff. That includes:
About the most interesting declassification was a citation to a Carrie Johnson story, published well over a year before the IG Report came out, describing the collection on those 3 journalists. The IG Report invoked this language in the story…
Mueller called the top editors at The Washington Post and the New York Times to express regret that agents had not followed proper procedures when they sought telephone records under a process that allowed them to bypass grand jury review in emergency cases.
… as evidence to support a footnote, which (except for the reference to Johnson’s article) had been unclassified, explaining,
In addition to the letter, Director Mueller called the editors of the two newspapers to express regret that the FBI agents had not followed proper procedures when they sought the reporters’ telephone records.
That is, they had classified reference to a published news article as S/NF! (Though I suppose it is possible that the fact they were hiding is that Glenn Fine had to read the WaPo to figure out what happened here, because Mueller wasn’t speaking directly to him.)
Congratulations to Carrie Johnson who I guess now classifies as a state secret!
I asked the Savage (and through him, NYT’s lawyer, David McCraw) how the NYT felt about FBI classifying, rather than declassifying language in response to his suit, and he suggested NYT expects DOJ to pay them for their time. “We have incurred no outside counsel fees and anticipate that the government will be required to pay us for the time spent by in-house counsel.”
Still, I think Savage (and FOIA requesters generally) should get finder’s fees every time the government newly classifies stuff years later … impose some kind of fine for stupid overclassification.
Update: Corrected timing on Johnson story which came out in August 2008, so 17 months before the IG Report.
November 2, 2014 was the first annual International Day to End Impunity for Crimes Against Journalists.
To mark the date, the President just issued this statement.
History shows that a free press remains a critical foundation for prosperous, open, and secure societies, allowing citizens to access information and hold their governments accountable. Indeed, the Universal Declaration of Human Rights reiterates the fundamental principle that every person has the right “to seek, receive, and impart information and ideas through any media and regardless of frontiers.” Each and every day, brave journalists make extraordinary risks to bring us stories we otherwise would not hear – exposing corruption, asking tough questions, or bearing witness to the dignity of innocent men, women and children suffering the horrors of war. In this service to humanity, hundreds of journalists have been killed in the past decade alone, while countless more have been harassed, threatened, imprisoned, and tortured. In the overwhelming majority of these cases, the perpetrators of these crimes against journalists go unpunished.
All governments must protect the ability of journalists to write and speak freely. On this first-ever International Day to End Impunity for Crimes against Journalists, the United States commends the priceless contributions by journalists to the freedom and security of us all, shining light into the darkness and giving voice to the voiceless. We honor the sacrifices so many journalists have made in their quest for the truth, and demand accountability for those who have committed crimes against journalists.
It’s a wonderful sentiment, but I wonder if President Obama has thought this through.
After all, as Jeremy Scahill reported several years ago, President Obama personally intervened to ensure that Yemeni journalist Abdulelah Haider Shaye would remain in prison after having been tortured and subjected to a trumped up trial.
On February 2, 2011, President Obama called Yemeni President Ali Abdullah Saleh. The two discussed counterterrorism cooperation and the battle against Al Qaeda in the Arabian Peninsula. At the end of the call, according to a White House read-out, Obama “expressed concern” over the release of a man named Abdulelah Haider Shaye, whom Obama said “had been sentenced to five years in prison for his association with AQAP.” It turned out that Shaye had not yet been released at the time of the call, but Saleh did have a pardon for him prepared and was ready to sign it. It would not have been unusual for the White House to express concern about Yemen’s allowing AQAP suspects to go free. Suspicious prison breaks of Islamist militants in Yemen had been a regular occurrence over the past decade, and Saleh has been known to exploit the threat of terrorism to leverage counterterrorism dollars from the United States. But this case was different. Abdulelah Haider Shaye is not an Islamist militant or an Al Qaeda operative. He is a journalist.
In addition to interviewing Anwar al-Awlaki just as the US started targeting the radical cleric, Shaye also provided important coverage exposing the US role in an attack on the village of al Majala that massacred women and children.
On December 17, the Yemeni government announced that it had conducted a series of strikes against an Al Qaeda training camp in the village of al Majala in Yemen’s southern Abyan province, killing a number of Al Qaeda militants. As the story spread across the world, Shaye traveled to al Majala. What he discovered were the remnants of Tomahawk cruise missiles and cluster bombs, neither of which are in the Yemeni military’s arsenal. He photographed the missile parts, some of them bearing the label “Made in the USA,” and distributed the photos to international media outlets. He revealed that among the victims of the strike were women, children and the elderly. To be exact, fourteen women and twenty-one children were killed.
Shaye was kept in prison for an additional two and a half years after Obama’s intervention.
There are a number of other examples of US crimes against journalists that have been treated with impunity. In particular, the detention of Al Jazeera cameraman Sami al-Hajj at Gitmo for over six years, reportedly in an effort to recruit him to inform on his employer, comes to mind.
But with Shaye, President Obama personally intervened to ensure a journalist would remain imprisoned in a brutal prison system.
Does President Obama decry the impunity he has enjoyed for imprisoning Shaye for his journalism?
Cross-posted from ExposeFacts.
Sorry for the silence today — I’ve been traveling. Meanwhile, this piece — talking about how insane the government’s pursuit of James Risen has been — was published over at the Nation.
We focused particularly in the number of top officials implicated in stories Risen published.
But under strong pressure from White House officials—including some later implicated in the legally suspect program—Times editors delayed the story’s publication for over a year, until December 2005. The coverage won Risen and Lichtblau a Pulitzer Prize for “carefully sourced stories on secret domestic eavesdropping that stirred a national debate.” It was the kind of debate that the people running the US surveillance state had been desperate to avoid.
The belated publication of those stories came just before Risen brought out a book that contained reporting on the wiretap program and several other sinister initiatives under categories like “counterterrorism” and “counterproliferation.” On January 13, 2006, the week after Risen’s book State of War reached the stores, Attorney General Alberto Gonzales told a news conference that an investigation into the Times wiretap stories was under way and that “it’s too early to make decisions regarding whether or not reporters should go to jail.” Though not apparent at the time, facts later emerged to show that Gonzales was implicated in the illegal wiretapping that Risen exposed. (As White House counsel, Gonzales had authorized continued operation of the program after the Justice Department refused to do so.)
Some high-ranking individuals have been mainstays in the continuation of policies that Risen exposed in his book. John Brennan—President Obama’s former counterterrorism czar and now CIA director—has been at notable cross-purposes with both Risen and Sterling for more than a decade. Brennan was a senior CIA official when the agency rolled out its torture program under Bush, which came under intense public scrutiny after the use of waterboarding was revealed in a May 13, 2004, front-page Times story with Risen as the lead reporter. And Brennan played a key role in the illegal wiretap program, overseeing the production of what personnel in the program called the “scary memos” intended to justify the domestic spying exposed by Risen.
”From a marketing point of view, you don’t introduce new products in August.” — Andy Card
12 years ago today, Michael Gordon and Judy Miller published a story about aluminum tubes based off deliberate leaks from Dick Cheney and Condi Rice. Dick Cheney then cited the story on Meet the Press.
More than a decade after Saddam Hussein agreed to give up weapons of mass destruction, Iraq has stepped up its quest for nuclear weapons and has embarked on a worldwide hunt for materials to make an atomic bomb, Bush administration officials said today.
Yesterday, Obama himself appeared on Meet the Press, to roll out his new war.
Thanks for doing this. We start with a very basic question. Are you preparing the country to go back to war?
I’m preparing the country to make sure that we deal with a threat from ISIL. Keep in mind that this is something that we know how to do. We’ve been dealing with terrorist threats for quite some time. This administration has systematically dismantled Al Qaeda in the FATA.
ISIL poses a broader threat because of its territorial ambitions in Iraq and Syria. But the good news is coming back from the most recent NATO meeting is the entire international community understands that this is something that has to be dealt with.
So what I have done over the last several months is, first and foremost, make sure that we got eyes on the problem, that we shifted resources, intelligence, reconnaissance. We did an assessment on the ground. The second step was to make sure that we protected American personnel, our embassies, our consulates. That included taking air strikes to ensure that towns like Erbil were not overrun, critical infrastructure, like the Mosul Dam was protected, and that we were able to engage in key humanitarian assistance programs that have saved thousands of lives.
The next phase is now to start going on some offense. We have to get an Iraqi government in place. And I’m optimistic that next week, we should be able to get that done. And I will then meet with congressional leaders on Tuesday. On Wednesday, I’ll make a speech and describe what our game plan’s going to be going forward.
But this is not going to be an announcement about U.S. ground troops. This is not the equivalent of the Iraq war. What this is is similar to the kinds of counterterrorism campaigns that we’ve been engaging in consistently over the last five, six, seven years. And the good news is is that because of American leadership, we have I believe, a broad-based coalition internationally and regionally to be able to deal with the problem.
And the NYT — including Michael Gordon — published a story based partly on leaks (those are about bombing Syria) from senior officials warning that this war would take 3 years.
The Obama administration is preparing to carry out a campaign against theIslamic State in Iraq and Syria that may take three years to complete, requiring a sustained effort that could last until after President Obamahas left office, according to senior administration officials.
On Wednesday, Obama will roll out this new war, just in time for 9/11.
I’m thinking if maybe we could force Michael Gordon to take the entire month of September off in the future we might get out of this war cycle?
If note, we might as well just mark this in our regular calendar: Labor Day, Back to School, New War Roll-Out. Because it seems to be an annual thing.
Yammering on the internet is not hard work, in fact it is blindingly (and sometimes maddeningly when it is pointed in your direction) easy. Getting heard, and functionally interacting in a fashion that can contribute to the real focus and discussion, however, is hard. For my part, I often carp enough about the failings of big media that it is only right to give praise where due.
Today credit is due to CNN’s Jake Tapper. Because he cares.
Two nights ago, rightly or wrongly …. but I think rightly … I laid into CNN for their overbearing focus on repetitive, and somewhat mindless, continuing drivel on celebrity. That was, of course, in relation to Robin Williams’ death. A noteworthy, sad, and tragic event for sure, but there was only so much news, the rest was pure Entertainment Tonight like pathetic drivel.
So I went after CNN, and I tacked Jake Tapper’s twitter handle on the end. I did so not because I thought he was the prime offender producing the overall CNN news product, but because I knew, from prior interaction, that Jake actually gives a damn and and is a contact point at CNN who would care. And maybe…maybe…be a change point. That was both fair, and unfair to him personally, at the same time.
I am pretty sure both CNN and Jake were bombarded by by an untold number of missives of the same variety. I don’t how how other inflection points at CNN dealt with what was surely a lot of feedback, but the fact Mr. Tapper took the time to take umbrage, and discuss…and think…seems significant and admirable to me. And I admire that.
I thought about writing this post long before I saw the following, but I was off with clients and court appearances, and could have easily shined it on, as I do with so many posts I want to write but don’t get to.
Until I saw something from Mr. Jake Tapper today that was just awesome.
But then, not long later, came this:
Well, to be sure, this is the stuff even a critic of journalism can love and applaud. You know why? Because not only is solidarity with journalists under grand jury and governmental oppression admirable (I have some experience in GJ targeting), it is the only, and only proper, thing that can be done.
There are not many out there to be so applauded. Maybe tomorrow there will be an issue, and moment of difference, on a different case. So it goes, and so be it.
But, now, James Risen stands exposed and on his own. As a man, and as a journalist, Tapper stood up and gave public square to his voice. Good on him.
Tonight, I am glad Jake Tapper is out there and is willing to engage. Tonight he did one hell of a report from Ferguson Missouri. Even if a big part was consumed by press conference feed. But, before and after, he made his voice clear. That is not exactly a common thing. It is to be commended.
Give the man credit, he was there, and he cares. And I will buy him a drink.