As I noted several weeks ago, Jeffrey Sterling challenged his conviction based on the absence of evidence actually implicating him in the crime. On Monday, the government responded. And while I expect the government will succeed in defeating Sterling’s challenge I am still struck by some very big problems with their story.
As they did at the trial (especially in closing arguments) they argued that Sterling had knowledge of what they claim was the leak, he had a motive to leak it, and he had the pre-existing relationship with James Risen that would explain that he would go to Risen to leak it. So far so good.
They also argued that because Sterling was the only one favorably treated in Risen’s chapter, Sterling must be a source for Risen, which logically doesn’t hold at all.
But in the filing, the government also returns to its efforts — played out in the indictment, rehearsed briefly as both sides tried to make narratological arguments neither was equipped to make, introduced at the opening, but largely dropped during the trial — to a claim that Sterling lied to both the Senate Intelligence Committee and Risen to get them to show interest in his story. Not just that, but they claim Sterling told the same lies to both. This is where their argument starts to fall apart, and fall apart in ways that identify more problems for their argument.
He not only possessed the facts about Classified Program No. 1, he had a motive to spin them in a way that would do maximum damage to the agency. That is exactly what the evidence reflects. Risen’s spin on the program—i.e., that it was botched and risked enabling the Iranian nuclear program—is the same spin the defendant used when he met with Vicki Divoll and Donald Stone from the Senate Select Committee on Intelligence (SSCI) on March 5, 2003, GX 101, the day after he filed his second lawsuit, GX 99, and about a month after his last settlement offer expired. GX 96. Indeed, the only time anyone expressed the concerns Risen parroted in Chapter 9 was when Sterling went to SSCI.
This is wrong on two counts.
First, what Sterling told SSCI was not spin. Here’s what the SSCI report (Exhibit 101) — which Donald Stone claims he wrote on Bill Duhnke’s direction after he informed Stone of an investigation (in which Duhnke was then the prime suspect, for some unknown reason) — says Sterling said.
The operation entailed a CIA asset providing Iran with faulty plans for a Russian based nuclear fire set. Although the plans had been modified by the National Laboratories, Mr. Sterling feared they were insufficiently flawed to prevent a Russian scientist hired by the Iranians from identifying and correcting the mistakes. His concern was based on the fact that the CIA asset recognized the plan’s flaws almost immediately after being shown them. He would have preferred to string the operation out by giving pieces of the plan out over time. 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. Mr. Sterling fears the CIA gave the Iranians too much information that they can either use themselves or sell to someone else.
And here’s what Stone told the FBI Sterling had told them, but which (in his memo written after he knew of the investigation) he didn’t include in the investigation.
Which is why the details Stone provided the FBI, which would have been captured in his notes but which didn’t show up in the report, are so interesting. First, Sterling said that “they did the equivalent of throwing it over a fence,” an admission of how shoddy the pass-off of the blueprints was. Then, that one of CIA’s two assets involved “got cold feet,” an admission that Merlin almost backed out just before the trip to Vienna. And that one asset (it actually sounds like Stone might have meant Human Asset 2, the other Russian, which the records actually support) “recognized the plans were faulty.”
Every single one of these details are true, not spin. Not only did Merlin immediately say the plans “would not work” (and in testimony said the real plan would have been “100 times more complicated than it was shown in drawing and the schematics”), but the other Russian involved — the guy who gave the plans to the CIA in the first place — apparently had problems with them as well. The National Lab got the plans to work in 3 months (not 5, as Walter C testified under oath), at least according to CIA’s own cables. And the entire operation was premised on the assumption that Iran had access to Russian engineers.
In addition, Merlin did get cold feet, as extensively documented by CIA cables, and confirmed — once he presented it as protecting his own family — by the Russian’s testimony.
But the most important evidence from Sterling’s report to the SSCI is that he complained that “the entire plan was turned over to the Iranians without any means for further follow up,” largely because “they did the equivalent of throwing it over a fence.” Not only are those claims absolutely true — as confirmed by both Bob S and Merlin’s sworn testimony at the trial — but they are one of the two key points of his whistleblower complaint to Congress. Not only did CIA give Iran a nuclear blueprint. But they did so, Sterling worried (according to the SSCI), in such a way as to make further follow-up and intelligence gathering almost impossible. He would have rather strung out the operation so as to collect intelligence.
And that’s important, because that complaint doesn’t show up in Risen’s book with the details that substantiate it, appearing only as “the CIA also gave the blueprints to the Iranians without any certain way of monitoring their use by Iranian scientists.”
Indeed, there are details in Risen’s book that are inconsistent with both the real basis of Sterling’s worry and the facts as presented by CIA cables, Bob S, and Merlin, though not with the instructions originally given to Merlin. The book repeats the instructions that Merlin was not supposed to hide that he lived in the US.
The Russian was also told not to try to hide the fact that he now lived in the United States.
And it includes the final line of the letter it claims Merlin left, indicating his contact information was on the next page.
My contact info on next page.
The thing is, probably because of Bob S’ suppression of the actual details of the operation as executed — Bob S’ false spin, not Sterling’s! — the CIA documents included these details, but they are inaccurate, per both Bob S and Merlin. Merlin did everything he could to ensure any tie with the US was hidden. “Nobody likes United States in the world,” Merlin testified, “I’m not stupid. I can put in danger my family.” And he had been doing so for almost a year by the time of the operation. And according to Merlin — and Bob S claims he knew this at the time — Merlin did not provide the contact information the Iranians would need to contact him.
In other words, a key part of Sterling’s concern, that as Merlin executed the operation, he had left the Iranians no way to contact him and therefore largely prevented any follow-up contact, doesn’t show up in Risen’s book. The “spin” is not the same, and in fact Risen’s version misstates a key concern Sterling shared with SSCI.
If Sterling had wanted to get Risen to publish the same story he told to SSCI, he surely would have foregrounded that Merlin refused to do as he told with respect to leaving his contact information.
And that’s important for two reasons.
First, as I noted, FBI proved unable ultimately to find the version of the letter Merlin left (or the letter that appears in Risen’s book, which is almost certainly a different thing). And FBI proved unbelievably incurious about why Risen was quoting from a report on Merlin’s trip that Bob S claims never existed, a report that included the details that Bob S suppressed in his own reporting of the operation.
Here’s how the government’s filing deals with their inability to produce the actual letter.
The evidence at trial established that over a period of months, the defendant, Robert S., and Merlin worked on drafting and editing a letter for Merlin to provide to the Iranians. See, e.g., DE 435 at 22-23. The document went through multiple drafts. On January 12, 2000, the defendant sent a cable containing the then-current version of the letter. GX 35. Two days later, on January 14, 2000, Robert S. responded in another cable, requesting certain changes, including that the letter make explicit that the schematics were being provided for “free.” GX 36 at 1. There were no additional changes reflected in any cable traffic. The version of the letter that appears in Chapter 9 is the January 12, 2000, formulation, with Robert S.’s suggested changes from January 14 incorporated into the document—i.e., the final version. Compare GX 35 at 2, and GX 36 at 102, with GX 132 at 13-14
This is false. As I laid out, not only did Bob S’ instructions include agreement that the letter should be stripped of “puffery” that it retains in the Risen version, but Bob S himself testified that the letter that appeared in the book was not the final letter either.
In response on January 14, 2000, Bob S wrote (Exhibit 36),
We agree with [Sterling's] comments that the verbiage needs to be tightened up still further to make sure the Iranians understand what he has and on what terms. He should say explicitly that he is offering the schematic and associated parts list free to prove that he can provide further information, and acknowledge that what he is providing initially is incomplete. There should be a very clear message that he expects to be paid for the rest of the details they will need if they want to build the device.
Each iteration of his draft letter is better than the previous one, so [Sterling]‘s patience seems to be paying off. It is worth our while to take the extra time to make sure he finally gets it just right, since the letters will have to do much of the work for us with the target.
Now, given Merlin’s payment strike at the following two meetings, it is possible CIA never got around to making the changes Bob S wanted. The fact that Bob S, not Sterling, wrote the cables from those meetings means we would never know, because unlike Sterling, Bob S never included the text of correspondence in cables he wrote (as I laid out here). But Bob S — who ran both the remaining meetings before the Vienna trip with Merlin — clearly wanted changes. And while the letter appearing in Risen’s book retains what Sterling called Merlin’s “puffery” language, it does reflect two of the changes Bob S asked for: reiteration that this package was meant as an assessment package, and an indication Merlin had emailed IS2 to alert him to the package (though see my questions about whether he really did in the update to this post).
In his testimony, Bob S claimed that what appeared in the book was the “nearly final draft,” explaining that the reference to Merlin getting paid was “sharpened” still further after the version that appears in the book. If true, given the way the final meetings worked out, Bob S may have been the only one who would know that.
In spite of the abundant evidence that Bob S was more likely to have these late iteration letters than Sterling, the government goes further to argue — as they prevented Sterling from arguing at trial — that he probably didn’t do his job and that’s why there isn’t a final version of the letter.
It would be entirely reasonable for a jury to conclude that an individual, who was terminated for failure to perform his assigned duties, GX 62 at 1, might also fail to properly document all of his contacts with an asset.
This would require that Merlin and Sterling made changes Bob S knew about, did not document them verbatim as was Sterling’s (but not Bob S’) consistent practice, and Bob S never noticed. Indeed, Bob S insisted at trial that the CIA writes everything down (in contradiction to the evidence that, while Sterling did, he did not). It’s just not possible.
And, as I mentioned, the motion never deals with — as the entire trial didn’t either — the report which Merlin and Bob S say never existed but gets quoted extensively in Risen’s book, which included information which Bob S suppressed in official CIA communications but admits are factually correct.
But the mistranslation of Sterling’s concern is important for another reason: the errors in Risen’s book, errors which Sterling not only knew to be errors (per trial evidence), but errors that make no sense given FBI’s claimed spin. The big one — the one that pissed Merlin off the most — was the claim he was a defector (I’m less convinced that Risen’s claim that CIA helped Merlin get citizenship is entirely false, because there’s reason to believe they did accelerate his green card and treat it differently to allow him to do the Vienna trip).
That is, while there are details that (according to FBI) only Sterling, Bob S, and Merlin knew that weren’t documented (though the majority of those were in the report they didn’t look for), there are also a slew of details that show someone ill-informed, but not in a way that matches’ Sterling’s actual or purported concerns, was talking to Risen.
All this is probably moot. The government will succeed with this motion on evidentiary grounds and the interesting venue argument will be revisited in the Appeals Court.
But it is worth noting that the government’s narrative, even as laid out in a careful motion, continues to make no sense.
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.
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:
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.
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.
The government engaged in a great deal of security theater during the Jeffrey Sterling trial, most notably by having some CIA witnesses — including ones whose identities weren’t, technically, secret — testify behind a big office divider so the general public couldn’t see the witness.
But along the way, the government revealed a great number of secrets, including a number of secrets about how its counterproliferation programs work.
Perhaps most ironically, in a trial aiming to convict Jeffrey Sterling for revealing that the Russian scientist referred to as Merlin during the trial was a CIA asset, the government revealed that Merlin’s wife was also an asset.
That possibility was first suggested in the testimony of the first witness, Stephen B, who described originally recruiting Mrs. Merlin (presumably also for information on Russia’s nuclear program), not Merlin himself. Merlin’s wife suggested CIA recruit Merlin.
But the exhibits make it even more clear that CIA continued to have a relationship with Mrs. Merlin as well. For example, the first of two cables describing CIA informing the Merlins the engineer appeared in James Risen’s book describes them as the “Merlin assets,” plural.
That January 6, 2006 cable goes on to reveal that Mrs. Merlin had been facilitating the targeting of a Russian official who was due to travel to the US.
In addition, a stipulation regarding how much the CIA paid out over the years described it as how much “CIA paid Merlin and his wife.” [my emphasis] Indeed, the payments continued after CIA purportedly had to discontinue using Merlin on operations when Risen threatened to publish a New York Times story in 2003, and continued even after Merlin appeared in Risen’s book in 2006, even increasing in 2007.
Altogether, the CIA paid the Merlins roughly $413,223.67 over the 7 years after James Risen supposedly ruined Merlin’s usefulness as an asset.
It’s possible that some of these amounts were just meant to keep the Merlins silent. Yet it’s also clear that in 2006, Mrs. Merlin was actively providing information on Russian targets to the CIA.
None of these details — including a listing of how much nuclear engineers might expect to be paid by the CIA for a thorough debriefing then participation in a deception operation — were made public by Risen’s book.
But in the government’s zeal to punish Jeffrey Sterling because it believes he revealed Merlin to the world, the government has, in turn, revealed Mrs. Merlin.
After a week of ominous language about the dangers of leaking classified documents, the 14 jurors in the Jeffrey Sterling trial Tuesday got their first look at purportedly classified documents.
Martha Lutz, the CIA’s Chief of Litigation Support and the bane of anyone who has FOIAed the CIA in the last decade, was on the stand, a tiny woman with a beehive hairdo and a remarkably robust voice. After having Lutz lay out the Executive Orders that have governed classified information in the last two decades and what various designations mean, the government introduced four documents into evidence — three under the silent witness rule — and showed them to Lutz.
“When originally classified were these documents properly classified as secret,” the prosecution asked of the three documents.
“They weren’t,” Lutz responded.
“But they are now properly classified secret?”
“Yes,” Lutz answered.
A court officer handed out a packet of these same documents with bright red SECRET markings on the front to each juror (the government had tried to include such a warning on the binders of other exhibits, but the defense pointed out that nothing in them was actually classified at all). Judge Leonie Brinkema, apparently responding to the confused look on jurors’ faces, explained these were still-classified documents intended for their eyes only. “You’ll get the context,” Judge Brinkema added. “The content is not really anything you have to worry about.” The government then explained these documents were seized from Jeffrey Sterling’s house in Missouri in 2006. Then the court officer collected the documents back up again, having introduced the jurors to the exclusive world of CIA’s secrets for just a few moments.
On cross, however, the defense explained a bit about what these documents were. Edward MacMahon made it clear the date on the documents was February 1987 — a point which Lutz apparently missed. MacMahon then revealed that the documents explained how to use rotary phones when a CIA officer is out of the office. I believe the prosecution objected — so jurors can’t use MacMahon’s description in their consideration of how badly these documents implicate Sterling — but perhaps the improper description will help cue the jurors’ own understanding about what the documents they had glimpsed were really about, making it clear to them they’re being asked to convict a man because he possessed documents about using a rotary phone that the CIA retroactively decided were SECRET.
Along with these awesome secrets about rotary phone usage, the prosecution noted that Sterling also had a 1993 performance evaluation at his home in Missouri. Under cross, MacMahon got Lutz to correct her testimony that this PAR was not from when Sterling was a Case Officer — as she had originally explained — but from when he was a trainee. But Lutz insisted that the document would still have been secret if not redacted anyway because it would reveal the kind of trainees the CIA looks for.
You might be wondering how the government plans to use retroactively classified documents about rotary phones to convict Jeffrey Sterling for leaking details about an operation dealing nuclear blueprints to James Risen. Luckily, the government explained all that back in September 2011.
Remarkably, they argue that these documents seized from Sterling’s house in Missouri in 2006 are proof that he possessed classified documents in his house in Herndon, VA in 2003.
Although the uncharged classified documents were seized from the defendant’s residence in Missouri on October 5, 2006, the defendant had to have moved those documents from his residence in Herndon, Virginia to his residence in Missouri in August 2003. The defendant had no access to classified information while residing in Missouri, and no longer had access to any classified documents when the CIA terminated him on January 31, 2002.
Along with the FBI’s Agent’s hairdresser’s testimony, the government is offering these documents as “proof” that they’ve properly charged Sterling in Virginia and not, say, Missouri, where a judge is less likely to permit the government to wave around documents on rotary phones as if they’re an important secret.
The government also introduced these documents about rotary phone usage because — they readily admitted in that September 2011 motion – that they were forced to do such things because they only have a circumstantial case showing that Sterling had a letter that got leaked to James Risen absent the journalist’s testimony (they submitted that motion at a time when Brinkema had limited Risen’s testimony).
The evidence of the defendant’s possession of the seized classified documents is necessary because the letter charged in Counts Three and Five no longer exists. Absent Risen’s testimony, the evidence of the defendant’s possession of the letter charged in Counts Three and Five is solely circumstantial, based largely on inferences drawn from the defendant’s involvement in Classified Program No. 1, his access to certain CIA cables containing drafts of the letter, and the small number of individuals who would have had access to a paper copy of the letter.
In other words, they’ve submitted these documents Sterling obviously got in the very early days of his CIA career to “prove” that he also had snuck a letter on the Merlin program out of the CIA in 2000 (after which point he lost access to the information) and sat on it until 2003, when he allegedly shared it with Risen.
That the government is doing so makes it all the more ridiculous that a number of CIA’s witnesses — including up to four who were themselves cleared into the Merlin program — were able to testify without answering questions about the classified documents they improperly brought home. Given that the CIA actually learned of those documents in real time, it’s likely they were a lot more interesting than instructions on how to dial a rotary phone. And following the government’s habit of making fevered inferences, their improper treatment of classified information should make them more likely candidates to be James Risen’s source than Jeffrey Sterling.
But instead, the government is arguing, in all seriousness, that Jeffrey Sterling should go to prison because of three documents on dialing a rotary phone dating to 1987.
Here’s my latest on the Jeffrey Sterling trial from ExposeFacts.org:
Coming back into the courtroom after a break in the Jeffrey Sterling trial this afternoon, I heard an odd conversation. Apparently the government had unsuccessfully tried to get the defense to stipulate that the hairdresser for the FBI officer who had investigated this case had read James Risen’s book, State of War, in the Eastern judicial district of Virginia, where the court is located.
“There is no hairdresser privilege,” the judge presiding over the case, Leonie Brinkema, ruled.
So after a surprisingly weak presentation of computer forensic evidence, the government then called the investigating FBI officer’s hairdresser, who I will refer to as Julia P (because why shouldn’t she get the same privacy protections all the CIA’s witnesses got?). She seemed unprepared for court testimony, dressed casually. But she was a welcome breath of fresh air from all the stern witnesses preaching national security we’ve seen in the trial so far.
“Hi!” she said in a high voice as she took the stand. She explained she’d been a hairdresser for 35 years (she looked far too young for that to be the case). Julia P then confirmed that she had read State of War.
“Yessir, every chapter.”
She went on to confirm that she had read the book in Alexandria, VA shortly after it came out and that she does not have a security clearance.
The government, you see, is trying to establish they have charged Jeffrey Sterling in the proper venue. If anything has so far been presented that ties the alleged crimes to the Eastern District of Virginia, it’s not apparently clear what that is. It may be that the government had intended to use Risen’s testimony to establish venue in CIA’s home judicial district, but even there, he lives in Maryland and his office in is District of Columbia, as the government had just stipulated.
So they called the investigative Special Agent’s hairdresser.
And citing no precedent for this means to establish venue for an espionage case, the prosecution got Julia P to testify she had read a nationally released book that disclosed classified information in the same city where the trial is taking place.
Judge Brinkema then interjected, “how did you obtain the book?” It might have been either Borders or Barnes & Noble, Julia P explained. When pressed, she said it was probably in Alexandria or Arlington.
But it might have been in Bowie, Maryland, because her boyfriend lives there.
As Julia P pointed out, there are Barnes & Nobles all over.
On cross-examination, the defense asked her to clarify this, whether she knew where she bought the book. “It was probably Virginia, but it might have been Bowie,” she repeated. “You don’t remember whether you bought the book in Virginia or Maryland?” the defense asked again to be sure.
When she was dismissed, Julia P responded with the same refreshing voice, “Thank you!”
Note, of a fairly large jury pool, not a single potential juror had read Risen’s book. But to Julia P’s great credit, she has.
I’m anticipating that the venue jury instructions are going to be mighty interesting.
I’m covering the beginning of the Jeffrey Sterling trial this week with ExposeFacts.org. This post lays out the opening arguments from yesterday, showing how circumstantial the government’s case is. More interesting, if I do say so myself, is this post on how one of the CIA officers who testified yesterday started losing his cool as matters got to James Risen’s book.
Zach W — the third CIA officer, who played a key role in setting up Operation Merlin before he handed the Russian off to Sterling — came off less impressively. Because the public had no visual cues because he (like the other two officers) testified behind a screen, his voice and overly-helpful answers recalled Vizzini, the Princess Bride character who dies in a battle of wits. The government used Zach W to explain how Operation Merlin came about, to get him to deny having spoken with James Risen, and to disclaim any concerns about the operation, But on cross-examination, he hurt the government’s case in three ways:
- He presented contradictory evidence about the Russian’s knowledge of the blueprints dealt to Iran
- His demeanor started crumbling when the defense pointed out where he’d fit in Risen’s book
- The defense demonstrated that in both functional position and language, Zach W was a closer fit to the focalization and language used in Risen’s book than Sterling is
Zach W’s demeanor started as very confident and overly helpful. He always answered “yes” or “correct” to questions, and at one point got ahead of the prosecution’s questions, leading the defense to object. As someone who had been in the CIA since the 1980s, he had the air of telling how hard things used to be before Google.
But his confident demeanor started crumbling soon after the cross examination started. The government had ended its questioning by asking if he knew Risen. “I know who he is, I never talked to him,” Zach W answered. When asked again if he had ever talked to him, he answered, no, twice.
Then under cross-examination, the defense got him to repeat his description of how he worked with the Russian to make himself available to Iranians by sending letters. When Zach W was asked if he sent the Russian to conferences, he said he was reluctant to say without material in hand to check. The defense then asked when he read the book. Zach W sighed audibly. They walked through the passage describing a case officer working with the Russian to reach out to the Iranians. In response to a question about that, Zach W answered, for the first time, “mmm hmmm.” “I’m sorry, you have to say yes or no,” Judge Brinkema responded. You are that case officer being referenced, the defense asked. “To some degree it does,” Zach W responded, “it seems more precise in targeting, just saying.”
Then the defense led Zach W through how the blueprints were discussed, either as “blueprints,” “firing set,” or “fire set” in the CIA cables and the book. “Firing set is something you’d use,” the defense asked after getting Zach W to say he didn’t know how the Russian described the part. “That’s what we were talking about,” Zach W responded. The defense pointed to another instance, “fire ring set.” For the second time, Zach W answered, “mmm hmmm.” “You have to say yes or no,” Judge Brinkema reminded again.
After laying out all the cables Zach W had written that use the same language that appears in the book, the defense then turned to the cable Zach W wrote about the meeting in San Francisco. He pointed to the description of Sterling, the Russian, and his wife, going to wine country. This was something the prosecution had said only Sterling knew about. When asked if the cable talked about wine country, Zach W once again answered “mmm hmmm.”
Today’s main witness, Bob S, tried to explain that Zach W would have had no way of knowing that the wine country trip went to Sonoma, though (as I’ll write later) he was not at all credible on that front.
Thus far, the government’s main witnesses aren’t coming off all that impressively.
The Fourth Circuit — which covers CIA, JSOC, and NSA’s territory — just ruled that journalists who are witnesses to alleged crimes (or participants, the opinion ominously notes) must testify in the trial.
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
With this language, the Fourth applies the ruling in Branzburg — which, after all, pertained to the observation of a drug-related crime — to a news-gathering activity, the receipt of classified information for all the states in which it most matters.
The opinion goes on to echo DOJ’s claims (which I recalled just yesterday) that Risen’s testimony is specifically necessary.
Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
There is no dispute that the information sought from Risen is relevant. Moreover, it “can[not] be obtained by alternative means.” Id. at 1139. The circumstantial evidence that the government has been able to glean from incomplete and inconclusive documents, and from the hearsay statements of witnesses with no personal or first-hand knowledge of the critical aspects of the charged crimes, does not serve as a fair or reasonable substitute.
Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information. And it was through the publication of his book, State of War, that the classified information made its way into the public domain. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.
Clearly, Risen’s direct, first-hand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.
This language will enhance the strength of the reservation DOJ made to its News Media Policies, allowing it to require testimony if it is essential to successful prosecution.
The only limit on the government’s authority to compel testimony under this opinion is if the government is harassing the journalist, which (with proof of the way the government collected phone records, which remains secret) might have been proven in this case. There is a strong case to be made that the entire point of this trial is to put James Risen, not Jeffrey Sterling, in jail. But Leonie Brinkema has already ruled against it. I think the subpoena for 20 AP phone lines might rise to that level as well, except that case is being investigated in the DC Circuit, where this ruling doesn’t apply.
This pretty much guts national security journalism in the states in which it matters.
Golly. It was just last week when the press believed DOJ’s News Media Guidelines would protect the press’ work.
Update: In his letter responding to AP’s complaints, Deputy Attorney General James Cole says these were subpoenas. Cole tries to argue the scope of the subpoena was fair. But what he doesn’t explain is why the government didn’t give the AP notice or an opportunity to turn over the contacts voluntarily.
I want to return to a question I introduced in my post describing DOJ’s grab of call records from 20 AP phone lines.
The assumption has been that DOJ subpoenaed these call records. While that’s probably right, I still think it’s possible DOJ got them via National Security Letter, which DOJ has permitted using to get journalist contacts in national security investigations since fall 2011. I’ll grant that AP President Gary Pruitt mentions subpoenas twice in his letter, once specifically in connection with DOJ’s grab and once more generally.
That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.
The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen. [my emphasis]
But the entire point of Pruitt’s letter is to call attention to the way in which DOJ did not honor the spirit of its media guidelines, which are tied to subpoenas, not NSLs. That’s what the Domestic Investigations and Operations Guide says explicitly (PDF 166) when it talks about using NSLs with journalists: when using NSLs, the rules don’t apply.
Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]
For a variety of reasons, I think it possible the AP doesn’t actually know how DOJ got its reporters’ contact information. And thus far, the most compelling argument (one Julian Sanchez made) that DOJ used a subpoena is that they did ultimately disclose the grab to the AP; with NSLs they wouldn’t have to do that, at least certainly not in the same time frame.
But Pruitt’s emphasis is sort of why I’m interested in this question: either DOJ used a subpoena and in so doing implicitly claims several things about its investigation, or DOJ used an NSL as a way to bypass all those requirements (and use this as a public test case of broad new self-claimed authorities). Both could accomplish the same objective — getting call records with a gag order — but each would indicate something different about how they’re approaching this investigation.
Here are DOJ’s own regulations about when and how they can subpoena a journalist or his call records. Some pertinent parts are:
(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.
(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.
(g)(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.
(g)(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. [my emphasis]
US Attorney Ronald Machen statement about the grab largely echoes those parts of the regulations (though somehow he forgot to mention that “subpoenas should be as narrowly drawn as possible”).
We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.
So either DOJ used an NSL, which would give them a longer gag, fewer express limits on the scope of the request, and zero expectation of giving notice beforehand (in addition, obtaining NSLs from journalists in national security cases doesn’t appear to require Attorney General sign-off). In which case Machen is playing the same kind of word games the DIOG plays, acknowledging there are regulations the spirit of which DOJ appears to have violated.
Or Machen maintains the following about the grab:
The Senate Judiciary Committee is holding a hearing today to review the results of the Schuelke report on the prosecutorial misconduct in the Ted Stevens case and to entertain the Lisa Murkowski bill requiring disclosure. In response, DOJ submitted a statement for the record, opposing any legislation enforcing its discovery obligations.
When concerns were first raised about the handling of the prosecution of Senator Stevens, the Department immediately conducted an internal review. The Attorney General recognized the importance of ensuring trust and confidence in the work of Department prosecutors and took the extraordinary step of moving to dismiss the case when errors were discovered. Moreover, toensure that the mistakes in the Stevens case would not be repeated, the Attorney General convened a working group to review discovery practices and charged the group with developing recommendations for improving such practices so that errors are minimized. As a result of the working group’s efforts, the Department has taken unprecedented steps, described more fully below, to ensure that prosecutors, agents, and paralegals have the necessary training and resources to fulfill their legal and ethical obligations with respect to discovery in criminal cases. These reforms include a sweeping training curriculum for all federal prosecutors and the requirement–for the first time in the history of the Department of Justice–that every federal prosecutor receive refresher discovery training each year.
In light of these internal reforms, the Department does not believe that legislation is needed to address the problems that came to light in the Stevens prosecution. Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts, and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources.
In short, DOJ is saying, “trust us. We don’t need a law requiring us to do what case law says we need to.”
Right off the bat, I can think of 5 major problem with this statement:
No one has been held accountable
We are three years past the time when Stevens’ case was thrown out. Yet none of the prosecutors involved have been disciplined in any meaningful way.
No doubt DOJ would say that it will hold prosecutors responsible if and when the Office of Professional Responsibility finds they committed misconduct. But in the interim three years, DOJ as a whole has sent clear messages that it prefers protecting its case to doing anything about misconduct. And–as Chuck Grassley rightly pointed out at the hearing–thus far no one has been held responsible.
This statement may claim DOJ is serious about prosecutorial misconduct. But its actions (and inaction) says the opposite.
Even after this training, discovery problems remain
As the DOJ statement lays out, in response to the Stevens debacle, DOJ rolled out annual training programs for prosecutors to remind them of their discovery obligations.
And yet, last year, Leonie Brinkema found that prosecutors in the Jeff Sterling case had failed to turn over critical evidence about prosecution witnesses–one of the problems with the Stevens prosecution. The prosecutor involved? William Welch, whom Schuelke accused of abdicating his leadership role in the Stevens case (note, DOJ says the CIA is at fault for the late discovery; but Welch is, after all, the prosecutor who bears responsibility for it).
If William Welch can’t even get discovery right after his involvement in this case and, presumably, undergoing the training DOJ promises will fix the problem, then training is not enough to fix the problem.
Eric Holder won’t run DOJ forever
The statement focuses on Holder’s quick decision to dismiss the case against Stevens, as if that, by itself, guards against any similar problems in the future. But before Holder was AG, Michael Mukasey was–and Judge Emmet Sullivan grew so exasperated with Mukasey’s stonewalling on this case, he ordered him to personally respond to questions about the case.