The Business Records and Classified (?) Emails of James Risen

Jeffrey Sterling’s lawyers are throwing a number of interesting theories against the wall. In a filing demanding a bill of particulars (and presumably ultimately supporting a greymail defense),they demand to know which “defense information” is tied to each count of leaking or possessing such information, arguing that they need to know that to prevent double jeopardy. As part of that argument, though, they note that the 10 year statute of limitations on this crime exists only to make sure crafty Communists don’t evade the law.

In this case, the Government will surely claim that there is a ten year statute of limitations applicable to violations of 18 U.S.C. 793. See Internal Security Act, Ch. 1024, 64 Stat. 987, P.L. 831 (§19) (1950).

As set forth in the statute, this law was passed, by its terms, because of the then existing threat of global communism.

There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose is by treachery, deceit…espionage, sabotage, terrorism, and any other means necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a worldwide Communist organization. Id. at § 2 (1)

In this regard, the Court can see that when this law was passed in 1950, it appears that the Congress extended the statute of limitations applicable to 18 U.S.C. § 793 because the “agents of communism have devised clever and ruthless espionage and sabotage tactics which are carried out in many instances in form and manner successfully evasive of existing law.” Id. at § 2 (11).

As such, the defense reserves the right to challenge the application of this McCarthy era law to the charges in this case which challenge would result in the application of the general five year statute applied to felonies. 18 U.S.C. § 3282.

Sterling is alleged to have leaked to James Risen in 2003; if a 5 year SOL applied, then it would have expired after the time when the Bush DOJ declined to charge Sterling. Charging him at this late date, he seems to suggest, is just McCarthyite.

But the other interesting aspect of this filing is the one Josh Gerstein points out: the details Sterling’s lawyers provide about what they’ve gotten in discovery.

In this case, for example, the United States has provided in unclassified discovery various telephone records showing calls made by the author James Risen. It has provided three credit reports – Equifax, TransUnion and Experian – for Mr. Risen. It has produced Mr. Risen’s credit card and bank records and certain records of his airline travel. The government has also provided a copy of the cover of the book State of War written by Mr. Risen and published in 2006. It has provided receipts and shipping records from Borders and Barnes and Noble indicating that State of War was sold in this District between November 1, 2005 and March 1, 2006.4 From this document production, it can be inferred that Mr. Risen is Author A and that the “national defense information” at issue can perhaps be found somewhere in State of War.

But State of War is a long book containing many chapters. Just pointing the defense to the book, or even a particular chapter in the book, is not legally sufficient to provide notice.

4 Count Eight is a mail fraud count under 18 U.S.C. §§1341 & 2, that seeks to hold Mr. Sterling criminally liable for the decision of Author A’s publisher to sell in the Eastern District of Virginia a book allegedly containing “national defense information” obtained from Mr. Sterling. Author A and his publisher are not charged with any crime.

Now, obviously this passage does several things. It sets up a future argument–one that might be modeled on the AIPAC case–that if they’re going to charge mail fraud they also need to charge Risen’s publishers. Also, it exploits the fact that the government has sent an entire book full of highly classified disclosures–including details of the warrantless wiretap program–to introduce selective prosecution. Why is the government choosing to prosecute the alleged leaker of MERLIN information, but not the leakers of the illegal surveillance program?

But it seems Sterling’s lawyers are just as interested in getting details about the government surveillance of Risen into the record.

Now, some of this is unsurprising. We knew the government had Risen’s phone records, because the indictment cites at least 46 phone calls between Risen and Sterling. The indictment also mentions a trip Risen made (presumably to Vienna), so it’s unsurprising they have his credit card and airline information.

But that leaves two other items.

The filing mentions Risen’s three credit reports and bank records. The only possible application of this information in the indictment is the repeated distinction between Risen’s office and his residence. Presumably the latter would show up on the credit report. But that information would also be available by public means (publicly available property records, for example). So why collect Risen’s credit reports and bank records?? Was the government trying to argue Risen was in some way induced to publish this?

Also, given that this would have qualified as a counterintelligence investigation, one wonders whether the government used the PATRIOT Act to collect these records.

More interesting, though, is what Sterling’s lawyers don’t mention in this passage: emails. We know they got emails, since they refer to at least 13 emails between Risen and Sterling (and point out that the emails went through a server conveniently located in the CIA’s home district!). But for some reason, Sterling’s lawyers don’t mention having received the emails in what they specify is “unclassified discovery.”

The probable explanation for that, of course, is that they have received those emails. It’s possible they can’t mention them, though, in an unclassified filing (one clearly targeted to the public), because they were turned over in classified discovery.

It’s troubling that the government collected Risen’s credit report and bank records to develop its case against Sterling. But the possibility that the government considers the email traffic between Risen and Sterling classified suggests some even more troubling possibilities.

image_print
  1. WilliamOckham says:

    My first reaction to this is that the government was, at some point, planning on charging Risen. Likely in an attempt to turn him.

    • emptywheel says:

      Yeah, that was my impression wrt the Risen stuff too. GIven that they note what he did from home and what he did from his office, it seems like they were trying to argue that after his editors decided not to publish, he would be somehow criminally liable for having done so from his own home.

      • scribe says:

        I’m looking at this from a wholly different angle. I think the government is arguing (or will argue) that Risen’s emails are classified along the same lines of the arguments, most recently put forward by some Air Force lawyer, that accessing the wikileaks documents – or newspapers/websites reporting on the content of those documents – meant improperly accessing classified material and resulted in contaminating the viewer’s computer with classified material, too.

        Risen presumably had access to classified material, which makes everything he did or wrote classified, too. That’s the government’s argument.

        • NMvoiceofreason says:

          The government’s argument is bogus. Once a document has been published, it is public domain. We were told for our classification purposes we could neither confirm nor deny the information contained in the documents until the declassification decision was announced, but that does not affect the status of the document itself. We don’t have an Official Secrets act, and things aren’t classified when in the public view. The are classified only to the extent they are kept secret. ‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ NEW YORK TIMES COMPANY v. US, 403 US 713 (1971). That’s why the FOIA standard is that it has been “kept secret”. see Carlisle Tire & Rubber Co. v. United States Customs Serv., No. 78-2001 (D.D.C. Nov. 21, 1979). The district court ordered disclosure of portions of four documents that “were published in the Federal Register” and one other document which was “inadvertently made public.”

  2. radiofreewill says:

    I’ll take ‘Federal Prosecutions’ for a thousand, Alex!

    Answer: When the DoJ is to Sterling, as the illegal pot is to the leaky kettle.

    *buzzzzzz*

    What is the Greymail two-step?

  3. NMvoiceofreason says:

    The probable explanation for that, of course, is that they have received those emails. It’s possible they can’t mention them, though, in an unclassified filing (one clearly targeted to the public), because they were turned over in classified discovery.

    Perhaps it is not the e-mails that are classified, but the means by which they were obtained? TIA? TSP? Warrantless wiretapping anyone?

    If I understand the “greymail” phrase correctly, it refers to a party who sues, not for the object of the suit itself, but to threaten what would be revealed if the suit goes to trial. Example would be a CIA agent involved in a “wet works” assassination squad who sues for health benefits denied to his son. CIA doesn’t want to admit the relationship that the CIA even worked for the CIA, much less what he did, so they get the whole suit suppressed on Totten/government secrets grounds and greymail thus fails. In the case where the government is doing the suing, the greymailer has a stronger hand – if they are actually holding anything they’ve never published.

    • emptywheel says:

      Remember, this is criminal, not civil.

      So how graymail would work is that Sterling’s lawyers establish the case that they need more details about the actual information Sterling leaked to be able to defend him. The CIA won’t give that up, bc they’re horribly embarrassed by this program (or more charitably want to hide the program bc we still use this approach), and so DOJ has to give up the case bc the judge decides due process requires that the defense get that info.

      Given the new era of state secrets (remember, CIA has already invoked state secrets in Sterling’s civil suit), graymail isn’t going to work in a civil suit.

      And yes, my implication is that they may have collected Risen’s emails pursuant to a FISA warrant.

  4. NMvoiceofreason says:

    Quite aware of the difference between criminal and civil. One difference is that a law established for one purpose (say RICO for narcotics trafficing) can be used for any other legitimate purpose (say, going after labor unions – if you’re a republican). So the whole argument about the wrong statute of limitations is going to fail.

    Risen did piss off NSA very badly, so no doubt they went after him hammer and tongs. I’m sure every possible tool at their disposal was used.

    • emptywheel says:

      Oh, they don’t even really make an argument on the SOLs, just put it in there to make the connection w/McCarthy. But it does suggest they’re going to try to work in the fact that the Mukasey DOJ chose not to indict this. I have a few theories about what that would be useful for them to do.

      • WilliamOckham says:

        I was thinking that the strategy is to knock down the theory that the information he passed was “national defense information”, therefore the SOL is 5 years on revealing classified info, and they missed it. Assuming that the SOL really is 5 on that offense.

        • NMvoiceofreason says:

          Your ideas clearly predate my thoughts on the subject, but I have to agree. NSI v. intelligence information, wrong SOL. Great defense if they can make it work.

        • emptywheel says:

          Definitely agree that’s part of it. but I also suspect that there was a reason that Mukasey didn’t prosecute, and it’s not just that they didn’t get Risen to testify. Obviously, all of the evidence the govt has now could have been collected–and probably was–under Bush. So why didn’t they prosecute?

          I suspect there was a problem with their evidence in 2008 that was cleaned up in 2009.

          • bmaz says:

            Lest us not forget how often, in matters we know, and likely many we don’t, the US Govt needed NYT to sit on things they were doing. Prosecuting risen could throw that all out of whack too.

          • earlofhuntingdon says:

            Mr. Obama did campaign on a promise to put Mr. Bush’s excesses on a better legal foundation. A pity that most voters interpreted that to mean he would end them, not perpetuate them.

      • NMvoiceofreason says:

        That’s a very interesting question, EW. Where are they going with that? The open faced SOL is wrong implies wrong dates, wrong category, wrong person – the typical lawyer “nyah, nyah, missed the target” defense. Trying to use the intelligence SOL for National Defense information? saying this is CIA doing the dirty work for NSA? Inquiring minds want to know….

        • emptywheel says:

          Still need to go back and do the work on this.

          But suppose for the moment that the first evidence of connection between Risen and Sterling came via an improper exigent letter that shouldn’t have been submitted w/o AG approval (bc of guidelines about collecting reporter info). Suppose that tainted the subsequent evidence–including the emails which, as I suggest here, probably came via a FISA warrant (since htey appear to be classified). Suppose that that taint still existed in 2008, but was cleared up via an OLC opinion written in early 2009.

          Well, then, it might explain why Mukasey was unwilling to indict in 2008 w/o Risen testimony, but Holder was, bc the taint on the warrants that in turn relied on that improper exigent letter would be cleared meaning they no longer needed Risen’s testimony.

          All that would then make SOL important, bc it would point to the making of poison fruit unpoison that OLC enacted in early 2009.

          Like I said, right now this is a WAG–gotta go back and do the work to prove it.

      • scribe says:

        Actually, there’s a more legally-sufficient reason to have made the argument.

        A couple weeks ago, the S.Ct. decided a case which kinda mandated the argument being made. The case came from the 6th Circuit and involved a woman who sued for civil rights violations. When the inevitable motion seeking summary judgment on the grounds of the various governmental immunities came up, her case somehow got past it and the case went to a jury trial, which she won. (For some reason, the defendants did not avail themselves of the right to immediately appeal the denial of summary judgment under the collateral order doctrine, one of the few exceptions to the general rule that there are no interlocutory appeals.) After trial, the defendants then appealed, claiming the decision on the summary judgment motion was wrong (also the easiest kind of appellate argument to win, b/c summary judgment decisions are reviewed on a de novo standard of review, as opposed to the much tougher standards of review over jury verdicts and such). IIRC, the 6th Circuit agreed with the government defendants and reversed. The case got to the S.Ct. and they reinstated the jury verdict. The reasoning was on two levels – the obvious-to-lawyers one and the judicial-activists-changing-the-rules one.

        On the obvious level, the defendants had not raised the issues of immunity in their motion to dismiss at the end of the plaintiff’s case (usually a proforma “Your honor, giving all inferences in favor of the plaintiff, no reasonable fnder of fact could find for the plaintiff and you should dismiss the case.”) nor in a motion for judgment as a matter of law at the close of all evidence or in a motion for a new trial. IIRC, they just kind of blew off those later motions. So, it was pretty obvious that they had missed the opportunity to raise the issue, both in the normal manner and in passing on the interlocutory appeal. Slam dunk.

        But, then the judicial activists, looking to cut their workload and find new ways to screw people out of their redress in court, came up with a new rule. In short, that new rule was an outgrowth of the existing ancient one that failing to raise an argument in the trial court means you can’t raise it on appeal. The new rule says, in so many words, that if you don’t raise all possible arguments at the earliest possible moment and keep preserving them all the way up, you can never raise them, even if they don’t really ripen until much later in the case (if at all).

        So, you’ll have every possible argument being raised because not raising it now means losing it later. Which is what we see here.

  5. PeasantParty says:

    Zoom!

    I think we already know that the NSA and the CIA have been spying on Americans. If that is the issue, then it should not be one at this point in time. I think the issue they have is that this being argued in a court may actually have to slow them down, especially since they probably failed to go through the courts for approval, and that Risen/Stirling were not terrorist suspects under their Patriot Act laws.

    I’m probably totally off on my opinion, I ususally am. I just see that the agencies are trying to hide how they used their spy tools at the wrong time, and on the wrong people.

  6. PeasantParty says:

    Does anyone here know if the Patriot Act laws gave the CIA the ability to operate in this country on it’s citizens? I’ve always thought the CIA was strickly forbidden from doing so and that only the FBI had that ability. Am I way behind the times on this?