Leonie Brinkema

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.

The Government Still Doesn’t Say Whether or Not It Has Recordings of James Risen

There’s an interesting passage in this government filing to get Judge Leonie Brinkema to reconsider her guidelines regarding James Risen’s testimony in the Jeffrey Sterling suit. It seems to address Brinkema’s suggestion in her ruling that there might be recordings of Sterling passing classified information to Risen.

The government has not stated whether it has nontestimonial direct evidence, such as email messages or recordings of telephone calls in which Sterling discloses classified information to Risen; nor has it proffered in this proceeding the circumstantial evidence it has developed.

Here’s how the government responds.

There is no non-testimonial direct evidence in this case that can establish what Risen can. There are no recorded telephone calls in which Sterling discloses classified information to Risen, nor are there emails in which Sterling discloses the same. Had there been such recordings or emails, that evidence would have been disclosed in the Bruce Declaration5 or in the government’s response to Risen’s motion to quash the 2010 grand jury subpoena, and the government certainly would have provided such discovery after indictment. There simply is no such evidence.

5 The Bruce Declaration, which the Court has had in an unredacted, classified form since 2008, and which the government adopted and re-submitted in 2010, is an accurate and fair summary of the anticipated trial evidence in this case. See Dkt. 144. The defendant received a redacted, classified version of the Bruce Declaration on June 18, 2011. Pursuant to this Court’s Order of June 28, 2011, the government provided counsel for Risen a redacted, unclassified version of the Bruce Declaration (that remains under seal) on June 29, 2011, so that counsel for Risen would have an adequate factual background for the hearing on July 7, 2011.

Note they don’t say they don’t have any recorded telephone calls between Risen and Sterling. Rather they say, “There are no recorded telephone calls in which Sterling discloses classified information to Risen, nor are there emails in which Sterling discloses the same.” They attribute that claim to their Bruce Declaration, which as they note provides a list of all the evidence they intend to use, not all the evidence they have.

That’s important, because we know they have the content of emails, at least those from Sterling to Risen. The indictment references a March 10, 2003 email from Sterling to Risen suggesting that Risen read an article on Iran.

Defendant STERLING stated, “I’m sure you’ve already seen this, quite interesting, don’t you think? All the more reason to wonder … J.”

The indictment also accuses Sterling of “meeting with Author A in person to orally disclose classified information.

The only two ways I can think of to know that is if, 1) they knew Sterling didn’t pass information via their phone calls because they have all those calls, or 2) if he if specifically referenced meeting to give him information in an email. But the government has introduced no evidence of the latter, at least not publicly.

I suspect Brinkema has good reason to suspect the government has wiretaps of Sterling talking to Risen (if they did, given the circumstances of the case, there’d be a good chance they got those wiretaps from their vacuuming of information at circuits, not from a formal wiretap placed on Sterling’s phone). And now, along with the dance over how much Brinkema will permit the government to ask Risen on the stand, they’re conducting a dance over whether or not the government will have to admit that.

Judge Brinkema Cites Espionage Act to Protect Reporter’s Privilege

Charlie Savage tells the headline story from Leonie Brinkema’s opinion on whether or not James Risen must testify in Jeffrey Sterling’s leak trial.

“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” wrote the judge, Leonie Brinkema of the United State District Court in Alexandria, Va.

But I’m just as interested in a few other things she says. First there’s the way she dismisses the government’s claim that two of the people who testified to the Grand Jury–Jeffrey Sterling’s ex-girlfriend and a former CIA officer with knowledge of the MERLYN operation–would be unable to testify at he trial.

The government had argued that the girlfriend was protected by spousal privilege and that the former CIA officer would be hearsay.

Separate and apart from Risen’s concession regarding the admissibility of his grand jury affidavit at trial, see Mot. p. 45, other evidence relied upon by the Court in its Memorandum Opinion similarly would be inadmissible at trial. For example, the grand jury testimony of the witness cited by the Court at page 7 of its Memorandum Opinion would be inadmissible under Rules 801(c), 802 and 803 of the Federal Rules of Evidence and United States v. Acker, 52 F.3d 509, 514-515 (4th Cir. 1995)(availability of spousal privileges to testifying and non-testifying spouses). The grand jury testimony of the witness cited by the Court at pages 7, 9, 10, 20, and 34 of its Memorandum Opinion – testimony that this Court deemed one of the key facts in its conclusion – is inadmissible hearsay on its face absent some exception; yet Risen treats the admissibility of the testimony of both witnesses as a foregone conclusion.

But as Risen’s lawyer Joel Kurtzberg pointed out during the hearing on Risen’s subpoena, she’s not his wife!

They actually cite in their papers as to the testimony of Mr. Sterling’s ex-girlfriend, suggest that it wouldn’t be admissible because they cite to a Fourth Circuit case about the marital privilege.

And in fact, if you look at the case they cite, the case holds the exact opposite. It holds that if you are not married, even if you have been living together I believe for 26 years in that case, the marital privilege doesn’t apply.

Here’s how Brinkema dismisses this William Welch gimmick.

Although the government argues that the spousal privilege would prevent this witness from testifying, nothing in the record indicates thta Sterling and the witness are married now or were married during the time of Sterling’s alleged statements.

More interesting still is the way Brinkema dismisses the government’s claim that the CIA officer’s testimony would be inadmissible hearsay.

Brinkema starts by citing Federal Rules of Evidence describing the exception for a statement against interest.

A statement is admissible under this exception if: (1) the speaker is unavailable; (2) the statement is actually adverse to the speaker’s penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.

After noting that Risen’s testimony would be unavailable if she found that reporter’s privilege prevented his testimony or if he refused to testify, she then invokes the Espionage Act.

Risen’s statements are adverse to his penal interest because receiving classified information without proper authorization is a federal felony under 18 U.S.C. 793(e); see U.S. Sentencing Guidelines Manual 2M3.3 (providing a base offense level 29 for convictions for the “Unauthorized Receipt of Classified Information.”). 6

6 The government clearly recognizes Risen’s potential exposure to criminal liability and has offered to obtain an order of immunity for him.

Brinkema uses the overzealous interpretation of the Espionage Act the government itself has been floating lately as a way to force the government to have the former CIA officer testify, which I suspect they’d much rather not do.

And note that footnote about immunity. I’m not sure whether we knew the government had discussed offering Risen immunity or not, but particularly given claims they’re pursuing his testimony so aggressively as a way to jail him for protecting his sources, it is an interesting revelation.

Finally, there’s one more passage I find telling. In the middle of a passage discussing whether the government has access to the information Risen would testify to via other means, she notes,

The government has not stated whether it has nontestimonial direct evidence, such as email messages or recordings of telephone calls in which Sterling discloses classified information to Risen; nor has it proffered in this proceeding the circumstantial evidence it has developed.

In a case in which the government has pointed to records of emails and calls, Brinkema notes, the government has never said whether or not it has the content of those emails and calls. Given that this statement is a non sequitur (it appears amid a discussion of circumstantial evidence), and given that Brinkema knows the government may have improperly accessed Risen’s phone records in the warrantless wiretap case, I find her comment mighty suggestive.

Government: Risen Shouldn’t Be Able to Reveal We Want(ed) to Trump Up War against Iran

The government has now responded to Risen’s attempt to quash his subpoena in the Jeffrey Sterling case. I fear the government will succeed in at least getting Risen to the stand, not least because of the gimmicks they’ve used to claim they need information not protected by any confidentiality agreement Risen might have had with Sterling.

But a more interesting political debate–albeit one that likely will be dismissed from a legal standpoint–pertains whether Risen was right to expose a program to deal fabricated nuclear materials to Iran at the moment when the government was using fabricated nuclear materials to try to drum up a war against Iran.

The government’s weak rebuttal to Risen’s harassment claim

I think the government’s subpoena of Risen is still very vulnerable to the argument that they are harassing Risen. The government dismisses the claim by emphasizing that the grand jury approved this indictment, as if that eliminated any animus from the government officials presenting the case to them, or the way that the government could “affirmatively operat[e] with furtive design or ill will” (the government’s own definition for harassment) to jail Risen in pursuit of his testimony.

Moreover, the Indictment in this matter was returned by a grand jury that found probable cause that serious crimes were committed by Sterling, and that Risen was a witness to those crimes. As such, any alleged harassment prior to that time – which the Government denies – is of no moment. Risen does not even attempt to address this central fact, or challenge in any way the detailed allegations against Sterling in the Indictment for which he is an eyewitness.

But Risen’s team would need to emphasize more strongly the extent to which the government is going to shield illegal behavior in the al-Haramain case. Moreover, the question of how the government got a list of Risen’s phone contacts remains a crucial one impacting the proof of harassment.

If secret unrebutted witnesses claim something is false, then journalists have to testify

I’m also amused (or perhaps disgusted) by a new tack the government takes here, by insisting that Risen must disclose his source because–they argue–the grand jury has found that his reporting included false information.

Risen’s beliefs that his confidential source(s) provided him truthful information, no matter how sincerely held, do not alter the indisputable fact that the grand jury found otherwise.

Aside from the fact that the government does not dispute that some of what it claims Sterling told Risen is true, the grand jury, of course, is not a confrontational proceeding. Sterling and his Russian asset did not, to the best of my understanding, testify before the grand jury. No final judgment on whether Sterling lied or not has been rendered.

And of course, the government would adamantly refuse to make any information with which the jury could assess such information available in court (indeed, I doubt they have made it available to Judge Brinkema here). In other words, the government wants to be able to force a reporter to testify based solely on its unrebutted assertion–endorsed by a grand jury–that Sterling lied. Given the asymmetry of access to classified information, given the government’s repeated success in withholding information from such trials, that is a very dangerous approach to allow to stand.

Risen’s efforts to prevent another war

But I’m most interested in the government’s weak response to Risen’s claim to have published the information because it was newsworthy. They don’t deal with the substance of Risen’s claim to newsworthiness, which basically argues he published the information in 2006 because the government was threatening to trump up another war, this time against Iran.

I gave this type of serious consideration to my publication of the information contained in Chapter 9 of State of War. I actually learned the information about Operation Merlin that was ultimately published in Chapter 9 of State of War in 2003, but I held the story for three years before publishing it. I made the decision to publish the information about Operation Merlin only after: (1) it became clear that the main rationale for fighting the Iraq War was based on flawed intelligence about Iraq’s non-existent weapons of mass destruction, including its supposed nuclear program; (2) the press, patiicularly The New York Times, had been harshly criticized for not doing more independent investigative reporting before the Iraq War about the quality of our intelligence concerning Iraq’s weapons of mass destruction; (3) the March 31, 2005 Report to the President by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction described American intelligence on Iran as inadequate to allow finn judgments about Iran’s weapons programs, making it clear that the CIA’s intelligence on weapons of mass destruction in Iran was just as badly flawed as it had been on Iraq; and (4) there was increasing speculation that the United States might be planning for a possible conflict with Iran, once again based on supposed intelligence concerning weapons of mass destruction, just as in Iraq. After all of this, I realized that U.S. intelligence on Iran’s supposed weapons of mass destruction was so flawed, and that the information I had was so important, that this was a story that the public had to know about before yet another war was launched.

Instead, they just talk about how dangerous (because trumped up wars aren’t dangerous) it would be excuse Risen from testifying because he published information that was newsworthy.

Moreover, the practical effect of a court’s engaging in such an analysis, by explicitly recognizing “good leaks” of classified information, would effectively destroy the system through which the country protects that information. It would encourage government employees who are provided access to classified information to betray their commitment to safeguard it by suggesting that they, too, should undertake their own independent analysis of the effect of their disclosure of that information should they desire to do so. It would also provide a ready-made defense for every disgruntled intelligence community employee or contractor who discloses such information to the press because he harbors a grudge against the institution for which he works.

(They also revert to their unproven claim that Sterling provided Risen with false information.)

But consider the environment in which Risen published this. Just a month before the publication of Risen’s book, it was becoming increasingly clear that the government had been trying for a year to generate support for actions against Iran by using a dodgy dossier and selectively tailored presentations based on non-traditional intelligence analysis.

The Bush Administration (or at least State Department officials) may not have believed that intelligence was ready for prime time a year ago. But they apparently believe it is ready now. In September we learned BushCo had itself another powerpoint presentation, this one titled “A History of Concealment and Deception” (did they get the same guy who came up with the name for the WHIG product, “A Grave and Gathering Danger” to name this one?):

The PowerPoint briefing, titled “A History of Concealment and Deception,” has been presented to diplomats from more than a dozen countries.

[snip]

Several diplomats said the slide show reminded them of the flawed presentation on Iraq’s weapons programs made by then-secretary of state Colin L. Powell to the U.N. Security Council in February 2003.

BushCo may think this is ready for prime time. But some people who have seen the presentation are not so sure.

Several diplomats said the presentation, intended to win allies for increasing pressure on the Iranian government, dismisses ambiguities in the evidence about Iran’s intentions and omits alternative explanations under debate among intelligence analysts.

The presenters argue that the evidence leads solidly to a conclusion that Iran’s nuclear program is aimed at producing weapons, according to diplomats who have attended the briefings and U.S. officials who helped to assemble the slide show. But even U.S. intelligence estimates acknowledge that other possibilities are plausible, though unverified.

The problem, acknowledged one U.S. official, is that the evidence is not definitive. Briefers “say you can’t draw any other conclusion, and of course you can draw other conclusions,” said the official, who would discuss the closed-door sessions only on condition of anonymity

Sounds familiar, huh? Omitting alternative explanations … again? But the most important line from this passage is this: “But even U.S. intelligence estimates acknowledge that other possibilities are plausible, though unverified.” Quick, someone tell Condi that somewhere deep in the bowels of the agency there are people who doubt this intelligence, because she will deny it later, mark my words.

We’re in the middle of arguments about the intelligence used to get us into the Iraq War, where Republicans try to prove that BushCo didn’t withhold information and Democrats point out that the Administration suppressed the doubts within the IC. But why are we having the argument about the last war, when they’re doing it again??? The Bush Administration is withholding information in the present–regardless of what it did in the past.

One more thing. This slide show? You’d think it’d reflect the consensus opinion of the IC, right? Well, no. Rather, it looks a lot more like the product of the reincarnation of OSP or WHIG than something respectable intelligence professionals (if there are any left who haven’t been hounded out by BushCo) would buy off on:

The presentation has not been vetted through standard U.S. intelligence channels because it does not include secret material. One U.S. official involved in the briefing said the intelligence community had nothing to do with the presentation and “probably would have disavowed some of it because it draws conclusions that aren’t strictly supported by the facts.”

The presentation, conducted in a conference room at the U.S. mission in Vienna, includes a pictorial comparison of Iranian facilities and missiles with photos of similar-looking items in North Korea and Pakistan, according to a copy of the slides handed out to diplomats. Pakistan largely supplied Iran with its nuclear infrastructure but, as a key U.S. ally, it is identified in the presentation only as “another country.”

Two months ago, the Bush Administration presented an explicitly politicized presentation to diplomats from other countries in an attempt to drum up support for a hardline against Iran.

Since that time, the IAEA has received evidence that the “laptop of death” on which this fearmongering was based might be a fabrication. Later, evidence came out to suggest the laptop of death came from the MEK (the same terrorist group the neocons are trying to rehabilitate, oddly without being prosecuted for material support for terrorism) via Mossad.

In other words, Risen published a story about the US providing fabricated nuclear plans to Iran. He published it–in spite of the government’s earlier success at persuading the NYT not to publish it–because the US had since been proven to have used fabricated intelligence to trump up a war against Iraq, and the government was in the process of using probably-fabricated materials (which included fabricated blueprints) to trump up action against Iran.

Now, I think Leonie Brinkema will do what District Court judges tend to do when the government says judges are unqualified to measure the importance of secrecy: I think she’ll cede to the government’s argument, no matter what she does on the other legal arguments.

But that doesn’t mean the conflict shouldn’t be one of the primary  topics of public discussion about this case.

The government is basically arguing that Risen shouldn’t have published information that helped us (so far) avoid a trumped-up war against Iran. It is quite possible he will end up spending time in jail–for protecting his sources–for having done so (as well as for having exposed illegal wiretapping that has never been punished). While the legal arguments may not work in Risen’s favor, that is what is at stake.

Emptywheel Twitterverse
bmaz RT @djsziff: Then referred to the President who saved the Union as a "McConaughey-shilled pseudo-luxury sedan." https://t.co/riWwXlkmwt
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emptywheel @ColMorrisDavis Martinis?!?!?! Have you ever even BEEN to Ann Arbor!?!?! Think I saw about 7 martinis in 15 years there. @JohnDingell
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emptywheel @ThusBloggedA See?!?! Also you're prolly a bacon loyalist. @JasnTru
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emptywheel @ThusBloggedA You don't know that. I liked dirtbags for my first ~5 boyfriends. Changed my taste after a while. @JasnTru
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emptywheel .@JasnTru What I'm struck by is I had remembered Miss Piggy to be buxom. But she's not, really. Maybe Kermit likes flat-chested women?
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emptywheel Kermit the Frog girlfriend cleavage is a weird thing.
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emptywheel @PhilPerspective No no no no. When a Wolverine Jet gets treated better than a Wolvering Pat you KNOW something's up.
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emptywheel RT @ProFootballTalk: Jay Feely told Judge Berman about the 2009 Jets K ball incident, which resulted in no investigation of the kicker http…
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bmaz No no, Khan was just collateral damage. Really, that's what my government told me. https://t.co/Bwu8CFx97h
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JimWhiteGNV When will the #Rays ever learn that Kirby Yates has no business in #MLB?
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emptywheel @Green_Footballs @nytimes @SusieMadrak Maybe @Sulliview has an answer for why NYT can't report this as critically as others?
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