Did DOJ Subpoena Ex-Spook’s Lawyer to Discredit Any Whistleblower Motive?

Via Jeff Stein, the St. Louis Beacon reports that DOJ not only (unsuccessfully) subpoenaed James Risen in their pursuit of alleged MERLIN source Jeffrey Sterling, but they successfully subpoenaed Sterling’s one-time lawyer, Mark Zaid.

Mark Zaid, a Washington, D.C., lawyer who handles national security cases, was subpoenaed to appear before a grand jury to discuss events surrounding his representation of Sterling in a race discrimination case he filed against the CIA, say sources with knowledge of the case.

As both pieces lay out, the guidelines on subpoenaing a lawyer are–at least in theory–as limited as subpoenaing a reporter (never mind that the government wiretaps lawyers representing alleged terror suspects). But they appear to have used Zaid to get to other interactions–including Sterling’s testimony to a congressional committee–apparently to hone in on an alleged motive.

Prosecutors questioned Zaid about Sterling’s motive in allegedly leaking classified information about an intelligence operation in Iran to James Risen of The New York Times, a source said. The indictment alleges that Sterling leaked the information to retaliate against the CIA for its refusal to settle his race discrimination claim and to approve a memoir he was writing.

The prosecutors’ questions focused on motive and dealt with the circumstances of Sterling’s case and contacts Zaid had with third parties, a source said. Zaid had tried to negotiate a settlement of Sterling’s issues with the CIA. In addition, prosecutors questioned Zaid about actions he had taken on Sterling’s behalf that led to testimony to a congressional committee and that promoted his racial discrimination case through the media, a source said.

Zaid’s testimony was entirely about his contacts with third parties on Sterling’s behalf and was outside of the attorney-client privilege, a source said. [my emphasis]

Now, there are several interesting implications of this. For starters, Zaid probably represents more disgruntled CIA officers than Risen publishes CIA-related scoops. Subpoenaing him–even with the understanding he didn’t testify about protected conversations–may chill others who would seek out Zaid for assistance.

But I’m particularly interested in the way this seemingly links conversations with third parties–notably a Congressional Committee–and motive. Because one of the weakest parts of the indictment is the CIA’s effort to dismiss the possibility that Sterling came forward as a whistleblower.

The indictment describes testimony Sterling gave to two staffers at SSCI on March 5, 2003. This happened two weeks before the start of the Iraq War, but after CIA had rejected the employment discrimination settlements Sterling had proposed through Zaid:

On or about March 5, 2003, consistent with his secrecy and non-disclosure agreements with the CIA, defendant STERLING met with two staffers of the Senate Select Committee on Intelligence and disclosed classified information about Classified Program No. 1 and Human Asset No. 1. However, in doing so, defendant STERLING falsely characterized certain facts and circumstances relating to Classified Program No. 1, falsely reported that he had believed Classified Program No. 1 to have been flawed from its inception based solely upon his mischaracterization of a single remark by a participant in Classified Program No. 1, and claimed, based upon that false information, that Classified Program No. 1 may have enhanced the weapons capability of Country A.

Importantly, the indictment admits that Sterling was entitled to share this information “consistent with his secrecy and non-disclosure agreements.” While the indictment doesn’t ascribe a motive to Sterling in this meeting, it does say Sterling claimed MERLIN had enhanced Iran’s weapons capability. In other words, by all appearances, it seems that Sterling made a legally-allowable effort to alert Congressional oversight staffers that the CIA had engaged in a boneheaded operation that had helped one of the Axes of Evil acquire nukes.

That is, by all appearances, Sterling was acting as a whistleblower.

Note how the indictment claims Sterling misrepresented something to the Committee (which was then headed by Pat Roberts, noted for his efforts to protect Cheney’s gaming of intelligence and the CIA’s use of torture), but it doesn’t provide any evidence that Sterling intentionally misrepresented it. He was wrong, the indictment claims, but it doesn’t claim he knew he was wrong.

If Roberts didn’t squelch any interest in MERLIN himself, then we can probably assume the CIA told SSCI the same thing they’re claiming here, that Sterling was wrong about what he told SSCI.

Now look how the details change as soon as Sterling goes to Risen. Whereas with the meeting with SSCI, the indictment doesn’t attribute a motive and doesn’t explicitly claim Sterling intentionally provided false information, they claim Sterling made false representations about the operation to “induce” Risen to publish a story on it.

Defendant STERLING caused [Risen’s first call to the CIA’s Public Affairs director about MERLIN] to occur by having disclosed certain information relating to Classified Program No. 1 to Author A and providing false and misleading information about Classified Program No. 1 to Author A in order to induce Author A to publish a newspaper article about Classified Program No. 1.

Claiming Sterling’s alleged misrepresentation was part of what Sterling did to induce Risen to publish this attributes a motive to the allegedly false information. Presumably, they’re arguing that without the risk that MERLIN gave Iran nukes, Risen wouldn’t have found it as interesting a story (though given that this happened just as it was becoming clear Cheney had lied about Iraq’s nukes, I’m not so sure).

And, too, the indictment provides a clear motive behind Sterling’s attempts to get Risen to publish information on MERLIN.

Defendant STERLING’s anger and resentment towards the CIA grew over time as the CIA rejected the defendant’s settlement offers and made other legal decisions. In retaliation for the CIA’s refusal to settle on terms favorable to defendant STERLING, as well as other decisions made by the CIA, defendant STERLING caused and attempted to cause the publication of classified information about Classified Program No. 1 and Human Asset No. 1 that defendant STERLING characterized in a false and misleading manner.

So it seems likely to me the government went to the trouble of subpoenaing Zaid to try to smooth this transition between what appears to be legal whistleblowing to what they claim to be retaliatory, misrepresentative leaking. I would imagine they’re very interested in why Zaid (apparently) negotiated the testimony to SSCI.

Mind you, there are three more interesting details of timing. The indictment alleges that Sterling was the source for this November 4, 2001 article revealing that the 9/11 attacks had destroyed CIA’s New York office. As the indictment lays out, it appeared just days after the CIA had rejected Sterling’s second employment discrimination settlement attempt. So they lay the ground work for retaliation motive early.

Also, the indictment claims that Sterling called Risen on February 27, 2003, two weeks after CIA rejected his last settlement offer, putting it before Sterling told SSCI CIA had had him help deal nuclear blueprints to Iran.

But perhaps the most interesting set of dates appear in a paragraph in Sterling’s suit–filed March 4, 2003, so the day before he testified to SSCI–regarding CIA’s refusal to let him publish details in his memoir.

By letter dated January 3, 2003, the CIA notified Sterling of additional decisions regarding his October submission [to the Publication Review Board]. Sterling was not only notified that the CIA considered certain information in his manuscript to be classified, which also conflicted with earlier decisions, but the CIA informed Sterling that he should add information into the manuscript that was blatantly false. Upon information and belief, the CIA instructed Sterling to knowingly include false information within his manuscript solely to maintain a litigation advantage against Sterling in the unrelated discrimination lawsuit. [my emphasis]

That is, it appears that Sterling, not the CIA, is the first party to claim the other was lying (though they may be about entirely unrelated issues).

It seems likely one of the biggest weaknesses of this indictment is the possibility that Sterling will argue he legitimately worried about our government dragging us to war against Iran based on false claims and went to Risen as a whistleblower. That doesn’t make it legal, but it’s an extenuating circumstance that, 4,300 deaths into the Iraq War, might well make a jury pause before they convict him for leaking this information. And if Sterling can make that case at all credibly, then it’ll get into the mother of all CIPA fights over whether Sterling can get information to prove the CIA right or wrong about MERLIN.

So it seems like the government dragged Sterling’s lawyer into the Grand Jury to try to rebut the whistleblower excuse from the start.

  1. earlofhuntingdon says:

    It is hard to see how Sterling could mount an effective defense in a criminal action if “state secrets” issues prevent him from accessing witnesses and information controlled by the CIA and from cross examining witnesses about their testimony against him.

    • emptywheel says:

      And remember, they invoked state secrets already in his employment discrimination lawsuit. I haven’t checked how often they do that in such suits. But it is imaginable that they were saying, “no, we didn’t compartment him out of this program bc he is black, we didn’t it bc he want soft on an op” and then declared state secrets over the op, which was MERLIN. (Again,just a wildarsed guess, not any claim that’s what happened).

      But it might suggest that details about MERLIN are at the center of all these disputes.

  2. MadDog says:

    …was then headed by Pat Roberts…

    Speaking of Pat Roberts, from a HPSCI press release:

    Darren Dick – Deputy Staff Director

    Darren Dick is a veteran of the Senate Select Committee on Intelligence where he served as Counsel for the Committee…

    …Darren spent three years in the office of U.S. Senator Pat Roberts (R-KS) as principal advisor to the senior Member of the Senate Armed Services Committee…

    I guess now that the Repugs control one Congressional Intelligence committee, it makes sense to hire staff that will avert their eyes from any Intelligence Community lawbreaking.

      • MadDog says:

        You’re assuming that a Repug-lead Intelligence committee would be in the business of generating “reports” that need such redaction.

        Based on Pat Robert’s SSCI Chairmanship performance, that isn’t something I think we can safely assume. *g*

        And I would note that Mike Rogers (R-MI)as the new Chairman of the Repug-lead HPSCI has totally scrubbed and sanitized the HPSCI website of all previous reports.

        I’m thinking out of sight, out of mind. Harbingers of things to come or not to come.

        • emptywheel says:

          No, I’m talking about MFRs released in FOIA that redacted staffers’ names.

          Incidentally, Mike Rogers helped me put my bag in the overhead once during the Libby trial. I looked over his shoulder to watch him read a file labeled “articles from staff” about Islamists. He looked over my shoulder to see what I was writing about the Libby trial.

          • MadDog says:

            No, I’m talking about MFRs released in FOIA that redacted staffers’ names…

            Ok, I’ll buy that.

            …Mike Rogers helped me put my bag in the overhead once…

            Since he’s a Michiganer, you’re take on his sanity someday would be appreciated. Given Crazy Pete’s antics over the years, many would question just what is in Michigan’s water. *g*

  3. pdaly says:

    I found the NPR piece I heard just before Sterling’s story returned to the headlines this month. It is not directly relevant to the discussion at hand except with respect to the CIA and US government’s attempts at keeping secrets secret. I thought the details were worth remembering

    Fresh Air with Dave Davies acting as host on January 4, 2011, 12:27 PM

    His guest is investigative reporter Douglas Frantz who, according to FreshAir, is a “former managing editor of the L.A. Times and a former investigative reporter and foreign correspondent for the New York Times.” His is a coauthor of a new book describing A.Q. Khan’s nuclear network and the CIA’s monitoring of it, and therefore he is not talking about Merlin during this broadcast (which I mistakenly thought in an earlier comment this month).

    The book “Fallout: The True Story of the CIA’s Secret War on Nuclear Trafficking.” His coauthor is Catherine Collins “foreign correspondent for the Chicago Tribune and has written for NYT and LA Times

    DAVIES: So we have a situation where in 2003, the United States shuts down what it can find of the nuclear trafficking network run by the Pakistani A.Q. Khan. He is in house arrest. People are arrested around the country. Some operations are shut down. There’s great concern that plans and documents may be floating around to unknown parties, perhaps because the CIA had waited so long.
    But there’s this matter of their sources in Switzerland, the Tinners. And it’s very important for them to maintain the secrecy of that relationship. Why?

    Mr. FRANTZ:
    [snip] The Tinners were paid an – we estimate it’s around $10 million by the CIA for their services, you know, but the biggest payoff was a promise that the CIA would keep them out of trouble if their names surfaced in connection with the Khan network. [snip] this fellow, B.S.A. Tahir, who was Khan’s logistics chief, …was arrested in Malaysia and … the Malaysian police put out a statement, a 12-page statement of his, in which he sort of named a couple of dozen people who had been participants in the Khan network, and among them were Friedrich Tinner, and Marco and Urs Tinner.
    [snip]… and the Swiss police began an investigation and they ran into a stone cold roadblock from the CIA and the U.S. government.

    DAVIES: Right. It’s a fascinating situation where the CIA has this secret operation, but once it blows up, pieces of it begin to become public and people start protecting their interests. The Malaysian government doesn’t want their little operation to be seen as the center of it, so they point the finger at the guys in Switzerland. Others want to… take credit so they point out how important the Tinners were, so information begins to come out.
    And then you also have the investigation by the IAEA, The International Atomic Energy Agency, which – it wants to look into this. But its job is to stop nuclear proliferation so it wants to talk to these guys in Switzerland and it all begins to unravel. And so you have people in Switzerland say we want to prosecute these guys. We can’t let them violate our laws. And the CIA – the U.S. does what?

    Mr. FRANTZ: Well, they did two things: First of all, officially, they stonewalled them. They refused to reply to any requests from the Swiss attorney general for help in figuring out what the Tinners had done…[snip]

    But second, and far more nefariously, the CIA, enlisted senior officials in the Bush administration, including Secretary of State Condoleezza Rice, and Attorney General Alberto Gonzales, and FBI Director Robert Mueller, and senior CIA officials to begin to put pressure on the Swiss government to stop this investigation, to kill the investigation of the Tinners. [snip]

    But that was only one of the motives. You know, the CIA also wanted to protect six of its own agents who had broken into Marco Tinner’s house and office and who had recruited the Swiss citizens, and that’s illegal in Switzerland. They violated Swiss law.

  4. pdaly says:

    Frantz summarizes the staggering extent of the data that the Swiss destroyed with the apparent approval of the CIA (and IAEA):

    hard drives from 90 computers, 6000 CDs, hundreds of thousands of pages of financial transactions, designs for nuclear warheads, blueprints for enrichment plans: in total, 1.9 tons of paper, 1.3 terabytes of digital information

    According to Frantz, in February 2008 the Swiss federal police headquarters shredded the written material, drilled out the hard drives, smashed the hard drives, and then took everything in vans to the U.S. Naval Observatory a commercial incinerator and burned it, under the watchful eye of the CIA station chief and of 2 people from the IAEA’

    Frantz makes two other interesting comments

    on December 23rd [2010], Andreas Muller, who is a Swiss magistrate, announced that he had filed a 174 page report, with the Swiss attorney general, recommending charges against the three Tinners for selling nuclear equipment to Libya.
    he was forbidden to investigate anything related to the CIA agents.


    [T]he United States government has never insisted on questioning A.Q. Khan. Never. We’ve given the government of Pakistan about $13 billion since 2001 and you would think that would buy us some access to A.Q. Khan to try and find out from the man who knows where that equipment went and exactly how much information he did sell to Iran and to other countries, but we’ve never asked the question.

    I’m not sure how he can be so certain our government has never talked with Kahn, even secretly. Interesting if true. It’s convenient misinformation, however, if Kahn met with and told our government there is no one else he sold nuclear material, but our government wants to insist otherwise.

    • emptywheel says:

      Remember that he is (or was–he must be on leave promoting his book) for Kerry at SFRC in the interim. Publicly reports have always said Pakistan wouldn’t let us talk to Khan, and I suspect Frantz has more reason to know that to be true now.

      I agree these stories are related. And there are about 3 more (not least, that of Valerie Plame) from CPD, where people were working on proliferation and had a bad falling out w/the CIA.

      • pdaly says:

        Thanks. I didn’t realize that, and I’ll be sure to remember now.

        So Frantz, as Kerry’s chief investigator on the Sen. Foreign Relations Committee, is, as you say, well-informed when voicing his frustration at the lack of initiative on the part of the US to gain access to Khan’s knowledge of the nuclear network. Parts of our US government must already know Khan’s likely answers and would rather feign ignorance.

        • dopeyo says:

          so what’s khan’s ‘likely answer’?

          if khan gave up a list, wouldn’t cheney et al have been beating the war drums within weeks?

          if khan’s answer was ‘no one else’, cheney would have squelched that info, because it would tie his hands IRT iran and other potential targets of the neocon bloodlust.

          since we haven’t attacked any likely nuclear-wannabes, can we assume khan’s answer was ‘no one else’?

          • pdaly says:

            I am definitely not in the know, but to square both not asking Khan about his network(s) and the CIA’s approval/demand? of the Swiss to shred/pulverize/burn 1.9 tons of paper and 1.3 terabytes of digital information about the nuclear networks, wouldn’t Khan have answered something like:

            ‘I gave the stuff to the countries Cheney told me to in order create a false casus belli’