Leonie Brinkema

Fourth Circuit Guts National Security Investigative Journalism Everywhere It Matters

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.

[snip]

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.

[snip]

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.

[snip]

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.

The AP Grab: NSL versus Subpoena

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:

  • DOJ has already checked the US person call records of the people known to be read into the UndieBomb plot and not found any obviously calls or emails implicating the journalists involved in the story and either hasn’t been able to access or hasn’t found any obvious clues in the potential Saudi, Yemeni, and British people read into the operation (note, some Saudis were on the record on this within days and Yemenis also appear to have leaked it).
  • Notifying the AP that DOJ was going to go get journalist contact information for two months, in an investigation that has been widely publicized for an entire year, would pose some threat to the investigation. Normally, such a claim is usually based on the premise that revealing the investigation at all would alert the targets who would otherwise not know about it, but that’s obviously not what’s going on here, because this has been one of the most public leak investigations in recent years.

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Anonymous DOJ Statement: “Trust Us”

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.

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William Welch, Jeffrey Sterling, and the Sixth Amendment

As Josh Gerstein reported, the government has submitted a filing in its appeal of some rulings in the Jeffrey Sterling case that reveals a little more about their reason for appealing. The key detail is that the government considers two people, about whom the government withheld impeachment information, so critical to their case that without them, the prosecution would be “terminated.”

The second issue on appeal relates to the district court’s decision to strike two of the government’s witnesses as a sanction for the late disclosure of alleged impeachment material related to those witnesses. This decision was rendered orally at a pretrial hearing and is based on factual conclusions concerning the weight and necessity of the government’s evidence and the history of discovery in this case. The district court’s decision to strike these witnesses effectively terminated the prosecution.

In order to adequately respond to the district court’s decision, the government believes it is necessary to explain the government’s extensive discovery efforts (much of which involved the review and disclosure of classified information); the import of the alleged impeachment material at issue and the ways in which Sterling proposes to use it; and the ways in which the two witnesses are important to the government’s case. The government must also address the effect of precedent from the Supreme Court and from this and other circuits concerning a district court’s limited authority to strike witnesses as a sanction for an alleged discovery violation. [ my emphasis]

I have suggested that one of these witnesses likely leaked classified information, but was not prosecuted for it. If I’m right that this is one of the witnesses that Judge Leonie Brinkema struck, consider what it means: that one of the most critical witnesses in this case also disclosed classified information (behavior, Sterling asserted in a filing, that was “more egregious” than what he was alleged to have done).

The government is preparing to argue that this may not amount to impeachment information. Presumably, they’re also going to offer some excuse for how they didn’t manage to find and turn over this information until shortly before the trial.

And this witness is crucial to the government’s case.

Now couple all that with one of the other disputes at issue: the government wants to withhold the real names of 10 CIA witnesses–not just from the jury, which I understand to a point. But also from Sterling himself.

The third issue on appeal relates to the district court’s decision to require the government to disclose to Sterling and the jury the true names of government witnesses who are covert CIA officers or contractors. This decision was rendered orally at two pretrial hearings, and requires a close familiarity with the extensive procedural history concerning the discoverability and admissibility of the witnesses’ true identities (which are classified).

Now, the government claims these two efforts aren’t that closely related–”each of [these appellate issues] is almost entirely distinct from the others.” Yet is that really true? The government, either by accident or intent, tried to prevent Sterling from learning details about two key witnesses against him. And it is also trying to prevent him from tying the people testifying against him to actions he probably knows firsthand, from his time at the CIA–if not from this late-produced discovery information.

It sure looks like the government is trying to play games with evidentiary issues to eliminate the Sixth Amendment. Typical William Welch.

William Welch Appears to Commit Prosecutorial Misconduct. Again.

DOJ has submitted its statement of issues it plans to appeal in the Jeff Sterling case. They are:

(1) Whether the district court erred in finding that author James Risen was protected by a “reporter’s privilege” and, therefore, could not be compelled to testify at trial as to the identity of persons who unlawfully communicated highly classified national defense information to Risen and as to other relevant matters regarding the receipt by Mr. Risen of that information;

(2) Whether the district court erred in ordering the disclosure to the defendant and jury of classified information regarding the identity of certain government witnesses (CIPA issue); and

(3) Whether the district court erred in striking the testimony of two government witnesses for the late pre-trial disclosure of potential impeachment information about these witnesses.

It was always likely they were going to appeal the James Risen subpoena.

And I noted here that the government was likely going to try to hide the identities of its CIA witnesses, even from Sterling, for all that would seem to violate the Sixth Amendment.

But then there’s what appears to be more of William Welch’s practice of withholding relevant material from defendants (Carrie Johnson first reported this aspect here).

While we don’t know which witnesses Leonie Brinkema has excluded, I think it possible that one of the witnesses in question was investigated, but not prosecuted, for leaking in the past.

Sterling moved to dismiss his case for selective prosecution on October 11, less than a week before the case was scheduled to go to trial. That’s obviously late to raise an issue like selective prosecution. That filing and a later response has not been redacted yet. But the government response makes it clear that Sterling complained about what appears to be another CIA officer who leaked classified information, but was not prosecuted.

The defendant claims that he was selectively prosecuted. At bottom, he alleges that because someone else was not prosecuted for the unauthorized disclosure of classified information, then he must have been selectively prosecuted.

[snip]

Here, prior prosecutors reviewed the circumstances surrounding Person A’s statements and concluded that Person A’s statements had been obtained in violation of Garrity v. New Jersey, 385 U.S. 493 (1967). Person A’s statements are the only evidence against Person A cited by the defendant. Person A had been interviewed a number of times by internal security investigators, and Person A had an employment obligation to cooperate with those internal security investigators. Failure to do so meant loss of security clearances and potentially loss of employment for Person A. Thus, the threat of loss of employment, whether implied through the loss of security clearances or express, supplied the requisite coercion to render Person A’s statements inadmissible, and Person A never waived any Garrity rights or executed any Garrity waivers prior to making the statements at issue. Thus, the situation of this defendant and Person A are starkly different, not similarly situated.

Given the late date of Sterling’s motion to dismiss, it seems likely he got information on this person about a month ago, which makes it likely he received it in late discovery.

In her most recent ruling (which she issued in sealed form the day before the CIPA conference at which the government announced it would appeal), Brinkema responded to Sterling’s selective prosecution attempt with this comment.

The defendant’s Motion to Dismiss Based on Selective Prosecution or, in the Alternative, to Take Discovery Related to Selective Prosecution [Dkt. No. 254] is unsupported by the facts before the Court and the law. Moreover, there is not enough time before the start of the trial to conduct further discovery.

Given her dismissal based on time considerations, I think it likely this may be the impeachment evidence: that at least one of the witnesses who would testify against Sterling had, in the past, leaked herself, and yet Sterling had not been given enough time to learn about the nature of this leak.

Gosh, it seems like just a few hours ago I was posting on the capriciousness with which our government treats leaks. And it seems like just days ago that I was recalling William Welch’s series of prosecutorial screw-ups.

You’d think that DOJ would start to get the idea that none of this stuff is cool.

Update: I made an error before. Sterling’s reply to the government’s response on selective prosecution was not sealed. Here’s one more detail that adds to the picture of his selective prosecution claim.

With respect to the Government’s first contention, as set forth in his motion, Mr. Sterling has made a detailed showing. Mr. Sterling showed that the conduct of Person A was more egregious, Person A was not prosecuted, Mr. Sterling had sued the CIA for discrimination, and Mr. Sterling was prosecuted.

So whatever Person A leaked, Sterling claims it was worse than what he is accused of leaking.

Also note, Sterling’s reply came on October 13, the same day Brinkema issued her ruling rejecting the selective prosecution. So it’s possible that Sterling’s lawyers raised this issue in the CIPA hearing the next day, which is when the government decided to appeal.

If Gun Walking Is Wrong, Why Isn’t Nuclear Blueprint Walking?

In his statement before the Senate Judiciary Committee today, Attorney General Holder tried to stave off questions about Fast and Furious by asserting that “gun walking” is wrong.

I want to be clear: any instance of so-called “gun walking” is unacceptable.   Regrettably, this tactic was used as part of Fast and Furious, which was launched to combat gun trafficking and violence on our Southwest Border.   This operation was flawed in concept, as well as in execution.   And, unfortunately, we will feel its effects for years to come as guns that were lost during this operation continue to show up at crimes scenes both here and in Mexico.   This should never have happened.   And it must never happen again.

It’s a statement he repeated a number of times during the hearing.

The emphasis on the problems with the technique of letting illegal guns pass into Mexico to allow the ATF to trace straw buyers represents a shift in the way Democrats are dealing with the Fast and Furious scandal by looking at similar efforts made under Attorney General Mukasey.

For example, to undercut Darrell Issa’s efforts on Oversight, Elijah Cummings has asked him to include the earlier instances under Mukasey.

A briefing paper prepared for Attorney General Michael Mukasey during the Bush administration in 2007 outlined failed attempts by federal agents to track illicitly purchased guns across the border into Mexico and stressed the need for U.S. and Mexican law enforcement officials to work together on such efforts using a tactic that now is generating controversy.The information contained in one paragraph of a lengthy Nov. 16, 2007, document marks the first known instance of an attorney general being given information about the tactic known as “gun-walking.” It since has become controversial amid a probe by congressional Republicans criticizing the Bureau of Alcohol, Tobacco, Firearms and Explosives for using it during the Obama administration in an arms-trafficking investigation called Operation Fast and Furious that focused on several Phoenix-area gun shop

[snip]

Maryland Rep. Elijah Cummings, top Democrat on the House Oversight and Government Reform Committee, wrote to the panel’s Republican chairman, Darrell Issa of California, asking that he call Mukasey to testify about his knowledge of the program.

“Given the significant questions raised by the disclosures in these documents, our committee’s investigation will not be viewed as credible, even-handed, or complete unless we hear directly from Attorney General Mukasey,” Cummings wrote.

It’s nice our elected officials are coming to the conclusion that it’s not a good idea to intentionally deal guns directly to people with ties to drug cartels.

But then why is Eric Holder’s DOJ prosecuting Jeff Sterling for allegedly exposing CIA’s practice of dealing nuclear blueprints to Iran (while, at the same time, alerting them to the flaws in those blueprints designed to sabotage their nuclear program)?

After all, if selling guns to cartel members presents unacceptably high possibility for unintended consequences, doesn’t passing on nuclear blueprints to Iran present an even greater risk?

And if that’s true, and if DOJ agrees that the ATF officers who exposed this program are whistleblowers, then doesn’t it follow that Sterling allegedly was, too?

If, as the Attorney General himself maintains, Fast and Furious was “flawed in concept, as well as in execution,” then what distinguishes it from Merlin?

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

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

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

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

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

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

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

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

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

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

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

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

The Narratology of the Russian Scientist We’re Allowed to Memorialize but Not Quote

I was meaning to write a post on this filing in the Jeffrey Sterling case, largely to point out the government is trying to prevent Sterling from arguing that everyone–particularly John Brennan–leaks.

The Court should bar the defendant from presenting any evidence, argument or comments of selective prosecution or that everybody leaks classified information.

[snip]

Not only is such evidence not probative on the issue of whether the defendant committed the charged crimes, but the introduction of such evidence or arguments would force mini-trials over the similarities and differences between the present prosecution and every other specific instance of leaked classified information. Fights over the classification levels of the information, the potential damage caused to the United States, and a host of other issues would consume and overwhelm the real issues in this case.

The motion is particularly amusing not just because it was submitted at the very same time senior officials–including Brennan, who was involved in the underlying issues in this case–were leaking state secrets for days. And because, a week after this, the Defense did file a still-sealed selective prosecution motion. Moreover, the government’s case citations don’t address the instant issue: that the prosecuting agency itself–DOJ–leaks with impunity. It’s one thing to say other non-governmental criminals commit the same crime without being prosecuted; it’s another to say the agency prosecuting Sterling doesn’t prosecute people within its own agency that commit the same alleged crime.

Alas, I am going to have to, instead, focus instead on the motion to prevent Sterling from presenting any evidence that the Russian Scientist tasked with handing off faulty blueprints to the Iranians might be James Risen’s source.

 The court should bar the defendant from presenting any evidence or any argument regarding alternative perpetrators absent some non-speculative evidence of a connection to Risen and some knowledge of or access to Classified Program No. 1. Specifically, absent such nonspeculative evidence, the caselaw forecloses the defendant from presenting any evidence or making any argument regarding the following:

[snip]

Arguments or comments that Human Asset No. 1 was Risen’s source and disclosed the national defense information contained within Chapter 9;

Of course, all this is happening while the government is simultaneously trying to get comments the Russian Scientist made to his case officer when Risen’s book came out admitted into evidence, while at the same time trying to prevent Sterling from subpoenaing the underlying documents that might show the Russian had to be Risen’s source.

The government, you see, wants to admit evidence that the Russian was scared Risen’s revelations put his safety at risk.

On or about January 23, 2006, after having read Chapter 9 and the information contained therein for the first time, Human Asset No. 1 contacted his CIA case officer and requested an unscheduled meeting. Human Asset No. 1 subsequently met with his CIA case officer and reported his fears and personal safety concerns for himself and his family. The case officer contemporaneously memorialized Human Asset No. 1′s fears in a cable. See Dkt. 153, CIPA Exhibit 47. That cable demonstrates that Human Asset No. 1 made his statements to his CIA case officer while still “under the stress of excitement” caused by the level of detail identifying him as the asset involved in Classified Program No. 1. In addition, the CIA case officer will testify at trial that he had never seen Human Asset No. 1 so shaken and scared than on that day as Human Asset No. 1 reported his fears and concerns to him.

The government moved to enter this cable after the defense had already apparently (the filing is heavily redacted) pointed out that Risen’s book had not identified the Russian scientist–the defense appears to want to call Pat Lang to support this point–but also to note that the Russian would have had as much reason to want to discredit the CIA as Sterling allegedly would after he had been put in the position of dealing bad documents to Iran.

More interesting, Sterling suggests that the Russian may be the only person who had a document mentioned in Risen’s book. One possibility is a written report the Russian made of his trip. Another is the content of the cover letter he wrote warning the Iranians that there was something wrong with the blueprints.

But most notably–given the claims and counter-claims about what Risen’s narrative style might indicate about his sources–the Defense notes that much of the narrative of MERLIN is focalized through the Russian.

Human Asset No. 1 obviously had knoweldge of almost all of the information that appears in Chapter Nine. Indeed, there are portions of that Chapter that detail actions about which only Human Asset No. 1 had first-hand knowledge and those portions of the Chapter are written from the perspective of Human Asset No. 1. See, e.g. State of War at 194-95 (“I’m not a spy, he thought to himself. I’m a scientist. What am I doing here?”); Continue reading

The Narratology of Leaks, Part Two: Schooling William Welch

Let me just say I do not relish seeing William Welch making precisely the point I have made in one of his filings. When you read this,

That Mr. Feldstein’s opinions are unreliable and based on no method at all is underscored by their internal inconsistency. He opines that “all statements in Chapter Nine that seem to indicate the potential identity of sources must not be taken at face value,” Attachment A at 3. Yet at the same time, he also concludes that “taken at face value, Mr. Risen had multiple sources” for Chapter Nine, including multiple human sources and documentary sources. Id. Moreover, because such testimony has a substantial likelihood of confusing the jury, it is also inadmissible under Rule 403.

You’d almost think Welch had read this,

The filing goes on to suggest that because Risen used this same technique he succeeded in hiding his sources.

Chapter 9 of State of War attributes thoughts and motivations hoth the “the Russian scientist” and to “the CIA case offcer.” It is not possible to infer from this attribution whether Mr. Risen spoke directly to both of these individuals, one of them or neither of them, in gathering the information contained in Chapter 9, much less what information, if any, either individual provided Mr. Risen.

Now, in the literary world, scholars are cautious about making definitive statements about the intentionality of the author (particularly as with books like this, which have clearly been edited to make the book a good read). But I’ll grant that a good investigative journalist might be (though might not be) a lot more cautious about the legal implications of the narrative voice used than a fiction writer.

But there’s another problem. The filing later suggests a reader can draw conclusions from the narrative presentation of evidence.

Taken at face value, Mr. llsen had multiple sources for the portion of Chapter 9 of State of War that discusses a CIA operation to provide flawed information to Iran’s nuclear program. These sources include multiple human sources as well as documentary sources, which may have been  provided to Mr. Risen by persons who also gave oral information to Mr. Risen or by others in addition to those who gave him oral information. Mr. Feldstein bases this opinion, in part, on the following examples: 1) page 197 of the book attributes information to a “secret CIA report”; 2) the material quoted at pages 204-05 of the book appears to have been quoted from a documentary source; 3) page 208 attributes views to unnamed “offcials”: 4) page 211 cites “several former CIA offcials”; and 5) page 211 indicates that the Senate Selcct Committee on Intellgence received information about the program from the “CIA case offcer,” but states the Committee took no action.

Sterling’s team is trying to have it both ways, drawing on Feldstein’s amateurish identification of narrative voice to suggest one cannot draw conclusions about sources, then showing Feldstein doing just that based on the clear indications given in the narrative.

Say, Bill Welch? In case you’re reading this post, you made almost as stupid an error in your request to preclude the defense’s use of narratology at the Jeffrey Sterling trial as the defense did in trying to have it both ways. You try to argue that the typical juror would understand this stuff already. Trust me, I’ve taught this subject to literature majors and honors students at a good state university, and it is not commonly understood, even among uncommonly smart people.

But even funnier is the way you make this argument.

In addition to inadmissible speculation regarding sources, the defendant also intends to call this expert to testify regarding the fact that State of War is written in the “third-person omniscient narrative style.” Attachment A at 1-2. The concept of a narrative voice, including the “third-person omniscient” narrative voice, does not require expert explanation. It is a common feature of high school reading curricula. See, e.g., English Standards of Learning in Virginia Public Schools 2 (2010), available at http://www.doe.virginia.gov/testing/sol/standards_docs/english/ 2010/stds_english9.pdf; English Standards of Learning Curriculum Framework 2010: Grade Nine 12 (2010), available at http://www.doe.virginia.gov/testing/sol/standards_docs/english /review.shtml. Because the concept of “point-of-view” is within the common knowledge and education of the average juror, it is inadmissible and properly excluded.

First, here are the correct links, in case Judge Brinkema wants to see the original references and gets lost by the 404 errors the URLs in the filing pull up.

But what the curriculum document you’ve linked to–and you yourself–are referring to is “point of view,” not “third person omniscient” narrative.

The student will read, comprehend, and analyze a variety of literary texts including narratives, narrative nonfiction, poetry, and drama.

e) Explain the relationships between and among elements of literature: characters, plot, setting, tone, point of view, and theme.

i) Explain the influence of historical context on the form, style, and point of view of a written work.

Neither the word, “omniscient,” nor the phrase “third person” appears in that curriculum document.

As even Wikipedia will tell you, “point of view” and “narrative voice” are different things. Both a first person and a third person narrative can use the same point(s) of view. The points of view (actually, focalization) James Risen used in the chapter in question is generally that of the Russian scientist and the case officer. We don’t, for example, get access to the feelings of the “senior CIA officer,” who might have been thinking that the “case officer” was being a big wuss about the doctored nuclear blueprints and should just suck it up and go on with the operation; we only get that person’s statements. And in spite of the fact that Risen uses some fairly interesting narrative techniques to convey the thoughts of the Russian (as I noted in my last post), this is not told in a first person narrative in the voices of the two: we (generally) get not only the narrator’s description of who said and thought what, but also a great deal of background about things like the IAEA, Russian nukes, and Nunn-Lugar that Risen is pretty damn knowledgeable about all by himself.

In other words, in the passage of the filing claiming that this stuff is known to VA’s high school freshmen, Welch makes an error, incorrectly conflating two aspects of narrative (and frankly, the two that would need to be distinguished for anyone, government or defense, to make an argument at trial about what the style of Risen’s text means about his sources).

Apparently, your average VA juror can be expected to know this stuff, but not a fancy government lawyer with degrees from Princeton and Northwestern.

Now, as I’ve said, I think this use of narratology in the court room is inappropriate, regardless of whether the defense or the prosecution attempts to use it (and both are trying to do so). I hope the defense responds to this filing by counter-filing that if their expert is precluded, the government should also be prevented from presenting their claims about what Risen’s narrative techniques mean, since the lawyers involved are obviously incompetent to do so.

But I will say I’m having a bit of fun watching the debate about it.

The Narratology of Leaking: Risen and Sterling

You know, I very much want Jeffrey Sterling to defeat the government’s attempt to criminalize whistleblowing. I very much want James Risen to succeed in avoiding expansive testimony in the Sterling case.

But this is bullshit.

Sterling’s lawyers plan to call Professor Mark Feldstein to make silly claims about a tie between the narrative voice an author uses and the sources he may or may not have relied on.

Mr. Feldstein wil testify that he has read Chapter 9 of State of War, authored by James Risen, and that based on his training, education, and experience as a working journalist and an academic studying journalism, will opine that it is written in the third person omniscient, a narrative style in which the reader ís presented the story by a narrator with an overarching perspective, seeing and knowing everything that happens within the world of the story, regardless of the presence of certain characters, including imputing to the characters’ internal voices what they are thinking and feeling. This style has become increasingly popular with mainstream journalists in recent years, as exemplified by books authored by Bob Woodward. One effect of the third-person omniscient narrative style is that it tends to mask the identity of a story’s sources, protecting both the anonymity of sources and disguising the number of sources. It is not uncommon using this style for an author to ascribe thoughts or motivations to particular “characters,” whether or not the author has actually spoken directly to the individual to whom thoughts and motivations are being ascribed. Indeed, it is not an uncommon practice to ascribe thoughts and motives to an individual to whom the author has not spoken intentionally to obscure who the actual source(s) for a story were.

I have a number of problems with this.

First, the narrative voice is, in places, more nuanced than a simple “third person omniscient” voice–as when Risen interjects the direct speech (in this case, thought) of the Russian scientist without quotations:

The Permanent Mission of the Islamic Republic of Iran to the International Atomic Energy Agency (IAEA) wasn’t the easiest office in Vienna to find.

They could have at least given me good directions.

As he stumbled along into Vienna’s north end, in the unglamorous neighborhood surrounding the Parterstern U-Bahn station, the same question pounded in his brain again and again, but he couldn’t find an answer.

What was the CIA thinking?

That doesn’t negate the larger point–that Risen intersperses “characters’” thoughts with omniscient narrative. But it sort of makes the point seem amateur from a narratological standpoint.

Then there’s the invocation of Woodward, that magic journalist’s name, to obscure the point. Woodward made this style of reporting popular, the filing suggests, so it must be acceptable journalism.

But that suggests two things that are not in evidence. Woodward never really hides his sources. Why bother, when there is an unwritten “Woodward rule” that says he, and perhaps only he, will never be prosecuted for reporting top secret information? Thus we–at least I–am safe assuming Woodward spoke with precisely whom it appears he spoke with, not just because we know he is systematically accorded that kind of access, but because we know sanction for participation in his semi-official histories comes straight from the top.

Woodward uses this style to make it clear (or at least suggest) that these top officials are his sources, not to obscure the kind of top-level access everyone knows he has. It’s his brand.

The filing goes on to suggest that because Risen used this same technique he succeeded in hiding his sources.

Chapter 9 of State of War attributes thoughts and motivations hoth the “the Russian scientist” and to “the CIA case offcer.” It is not possible to infer from this attribution whether Mr. Risen spoke directly to both of these individuals, one of them or neither of them, in gathering the information contained in Chapter 9, much less what information, if any, either individual provided Mr. Risen.

Now, in the literary world, scholars are cautious about making definitive statements about the intentionality of the author (particularly as with books like this, which have clearly been edited to make the book a good read). But I’ll grant that a good investigative journalist might be (though might not be) a lot more cautious about the legal implications of the narrative voice used than a fiction writer.

But there’s another problem. The filing later suggests a reader can draw conclusions from the narrative presentation of evidence.

Taken at face value, Mr. llsen had multiple sources for the portion of Chapter 9 of State of War that discusses a CIA operation to provide flawed information to Iran’s nuclear program. These sources include multiple human sources as well as documentary sources, which may have been  provided to Mr. Risen by persons who also gave oral information to Mr. Risen or by others in addition to those who gave him oral information. Mr. Feldstein bases this opinion, in part, on the following examples: 1) page 197 of the book attributes information to a “secret CIA report”; 2) the material quoted at pages 204-05 of the book appears to have been quoted from a documentary source; 3) page 208 attributes views to unnamed “offcials”: 4) page 211 cites “several former CIA offcials”; and 5) page 211 indicates that the Senate Selcct Committee on Intellgence received information about the program from the “CIA case offcer,” but states the Committee took no action.

Sterling’s team is trying to have it both ways, drawing on Feldstein’s amateurish identification of narrative voice to suggest one cannot draw conclusions about sources, then showing Feldstein doing just that based on the clear indications given in the narrative.

And there’s one more problem with the filing (that may not be problematic for Sterling’s lawyers, per se, but should be for Feldstein).

The filing suggests that the profession of journalism tolerates when reporters use omniscience to hide their sources.

But the profession does not approve when journalists use omniscience to invent details they have no way of knowing. Witness the criticism of John Heilemann and Mark Halperin for doing just that in Game Change. One of the most prominent critiques–from the NYT–specifically took Heilemann and Halperin to task for not doing what Woodward does–showing some of his work.

They proceed in these pages to serve up a spicy smorgasbord of observations, revelations and allegations — some that are based on impressive legwork and access, some that simply crystallize rumors and whispers from the campaign trail, and some that it’s hard to verify independently as more than spin or speculation on the part of unnamed sources. The authors mix savvy political analysis in these pages with detailed reconstructions of scenes and conversations they did not witness firsthand (like an exchange that Hillary Rodham Clinton and Bill Clinton had on a beach in Anguilla). They employ the same sort of technique Bob Woodward has pioneered in his best-selling books: relying heavily on “deep background” interviews, along with e-mail messages, memorandums and other forms of documentation to create a novelistic narrative that often reflects the views of the authors’ most cooperative or voluble sources. Unlike Mr. Woodward’s last two books this volume has no source notes at the end.

To succeed, this defense effort has to basically argue that either Risen or his sources may have simply invented what the Russian scientist and the case officer said. It has to argue that Risen is the same kind of hackish reporter that Heilemann and Halperin are, evidence to contrary notwithstanding.

Now, suggesting Risen engaged in bad journalism is totally within the right of Sterling’s lawyers as they mount a defense. And if it keeps him off the stand, I’m sure Risen won’t be that bothered by the suggestion he either made shit up or allowed his sources to.

But the entire effort seems legally pointless, given that they’re trying to use Feldstein both to point to other possible sources for Risen while at the same time claiming that Risen’s narrative voice makes it impossible to do just that.

Emptywheel Twitterverse
emptywheel RT @NaomiGilens: My paper on warrant canaries, posted in light of Apple apparently killing its Section 215 canary: http://t.co/u7By6hmJk4
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emptywheel @PatrickCToomey Good paper but frustrating to see claim 215 only used for telecom. First confirmed for TATP precursors. @NaomiGilens
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emptywheel RT @RobertsDan: Barbara Mikulski, who blocked Paul's call for separate Syrian vote, is effectively filibustering on Senate floor now - talk…
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emptywheel We interrupt forever war to bring you Orioles RT @KenGude: war debates happen all the time but the O’s haven’t won the AL East since ’97!!!
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emptywheel @nickmanes1 False: New editor at Politico. You just don't know her.
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emptywheel Barb Mikulski interrupts ISIS war debate ('no way to minimize debate" she says) to talk abt Orioles, wearing bright orange jacket.
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emptywheel @HanniFakhoury Curious whether Apple decided to do that before or after Riley.
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emptywheel Hey, one of NFL's accused wife and/or child beaters is NOT getting a paid vacation on Exempt List. https://t.co/JTOzShg6CX
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emptywheel @docexblog Ah, thanks. Should have cc'ed you on that question. Now I'm utterly fascinated by play of 9/17 date: Constitution & 9/17/01 MON.
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emptywheel RT @docexblog: @emptywheel @saftergood Under Act CIG became CIA day after Forrestal sworn in (which was Sept. 17), in Doc 1 here http://t.c…
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emptywheel CIA website dates founding of CIA to signing of National Security Act, which was July 26, 1947. Why is today its birthday? @saftergood
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